Service Employees International Union, Local 87 (Metro Services Group)

National Labor Relations Board - Administrative Judge Opinions

May 14, 2020

20-CB-206863 (N.L.R.B. May. 14, 2020)

JD(SF)-12-20
San Francisco, CA
UNITED STATES OF AMERICA
NATIONAL LABOR RELATIONS BOARD
DIVISON OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 87
(METRO SERVICES GROUP)
and Case 20-CB-206863
ALEJANDRO VARELA, AN INDIVIDUAL
Min-Kuk Song, Esq.,
for the General Counsel.
Jane Brunner and Emilyrose N. Johns (Siegel, Yee, Brunner & Mehta),
for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, ADMINISTRATIVE LAW JUDGE. This case was tried in San
Francisco, California, on September 16 and 17, 2019. The complaint, based on timely filed
charge by Alejandro Varela (Charging Party or Varela), alleges that Service Employees
International Union, Local 87 (Union or Respondent) violated Section 8(b)(1)(A) of the National
Labor Relations Act, as amended (the Act)1 on June 27, 2017,2 when the Union instructed the
Charging Party to stay at home and not return to his employment until his June 27 workload
issue was resolved with the Charging Party’s employer Metro Services Group (Metro or
Employer).3
The Respondent denies these allegations and argues that it quickly resolved the Charging
Party’s June 27 workload issue on June 27 and did not willfully misinform or act unreasonably
toward the Charging Party in violation of the Act as to be irrational, arbitrary, discriminatory,
deficient, or in bad faith.
1 29 U.S.C. §§ 151–169.
2 All dates are in 2017 unless otherwise specified.
3 The complaint was amended at hearing to expand the scope of this alleged instruction to the Charging Party from
one Union front desk business agent to also include the Union’s vice-president and a second business agent. In
addition, the General Counsel admits that this case only involves Varela’s initial charge concerning whether the
Union properly processed Varela’s June 27 workload issue and this case is not challenging the Union’s processing
of Varela’s July 20 grievance related to Employer’s July 7 termination of Varela’s employment. Tr. 21–22.
JD(SF)-12-20
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent on November 5,
2019, I make the following5
FINDINGS OF FACT
I. JURISDICTION
10
The parties stipulate, and I find, that the Employer is a California corporation that
provides maintenance and janitorial services to property owners and property managers in San
Francisco, California, and that during the years ending on December 31, 2017, and 2018, the
Employer derived gross revenues in excess of $50,000 for all goods, materials, and services sold
by Employer directly to persons located outside the State of California, and that at all material 15
times, the Employer has been an employer engaged in commerce within the meaning of Sections
2(2), (6), and (7) of the Act. (GC Exh. 1(d); GC Exh. 1(f); and GC Exh. 10 at 2, 4–21.)4 The
Respondent admits, and I find, that it is a labor organization within the meaning of Section 2(5)
of the Act and that Union Vice-President Ahmed Abozayd (Abozayd), Union Business Agent
Abdo Hadwan (Hadwan), and front desk receptionist and Business Agent Sergio Estrella 20
(Estrella) are agents of the Respondent within the meaning of Section 2(13) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
This case turns on the disputed testimony by various witnesses about events taking place 25
primarily from June 26, 2017, through August 2017 that resulted in the Charging Party Varela’s
decision to stop working at workstation #10 as a janitor at a building located at 100 Montgomery
Street, San Francisco, California, after June 26, 2017.
A. General Background30
Varela joined as a member of the Union in 1974 and started working for Metro5 in 2009
and he worked for many years as a custodian/janitor at different office buildings in downtown
San Francisco until June 26. (Tr. 24–25; GC Exhs. 3 and 4.) His primary language is Spanish and
occasionally needs an interpreter, but he speaks and understands some English and there have 35
4 Abbreviations are used in this decision are as follows: “Tr.” for the transcript; “GC Exh.” for the General
Counsel’s Exhibit; “GC Br.” for the General Counsel’s brief; “R. Exh.” for the Respondent’s exhibit; and “R. Br.”
for the Respondent’s brief. The transcript in this case is generally accurate, but I correct the transcript (Tr.) as
follows: Tr. 38; l. 22: “fourth” should be “sixth”; Tr. 38, l. 23: “seventh” should be “seventeenth”; Tr. 57, l. 20:
“officers” should be “offices”; Tr. 80, l. 13: “7th” should be “6th”; Tr. 237, l. 12: “… or his work was from seven-
and-a-half to four hours” should be “… or his work was cut from seven-and-a-half to four hours”; Tr. 249, l. 4: “…
why he’s been working” should be “… why he’s not been working”; Tr. 249, l. 7: “… the workload issue would be
mentioned” should be “… the workload issue would not be mentioned”; Tr. 252, l. 25: “June” should be “July”; and
Tr. 256, l. 17: “dispatch him from Metro to Able.” should be “dispatch him from Metro.” Although I have included
several citations to the record to highlight particular testimony or exhibits, my findings and conclusions are based
not solely on the evidence specifically cited, but rather on my review and consideration of the entire record.
5 Metro is a company that supplies janitor or custodian services to various buildings in San Francisco and elsewhere
and uses union members to perform this custodial work at the various buildings.
JD(SF)-12-20
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been times when Varela would speak to Hadwan without an interpreter. (Tr. 24, 268–269.)
Hadwan has known Varela since 2015. (Tr. 229.)
On March 3, after previously arguing with a coworker, Varela was transferred away from
the location of the argument at another Metro-serviced building at 870 Market Street where 5
Varela had worked since 2009, to a building located at 100 Montgomery Street, also in San
Francisco.6 (Tr. 26, 90, 256; GC Exh. 16.) Varela’s new shift involved cleaning offices and
restrooms on the 1st floor lobby gym, the 6th floor, and the 17th floor at workstation #10 and
began each night from 5 p.m. to 1 a.m. (Tr. 222; GC Exh. 16.)
10
B. Workstation #10 Before Varela and During Varela’s Tenure
On March 3, fellow union member and 100 Montgomery Building Foreman Jose Calero7
(Foreman Calero) walked Varela through his duties at workstation #10. (Tr. 162–163, 220, 256.)
From the March 3 start of Varela’s new work assignment through his last day on June 26, 15
Varela’s work station #10 duties were unchanged and explicitly included Varela being
responsible for cleaning the building’s 1st floor lobby gym with restrooms and shower, and the
offices and restrooms on floors 6 and 17 at the 100 Montgomery Street Building, whether fully
occupied or vacant8—these being the exact same workstation #10 duties as the prior custodian
who had recently retired according to Metro Director of Operations Larios and Metro Foreman 20
Calero.9 (Tr. 26, 220–221, 225.)
When Varela started work at workstation #10, there were at least two unoccupied offices
on the 6th and 17th floors. (Tr. 26.) Varela did not mention to Foreman Calero any concerns he
had about workstation #10 duties when Varela first took over the workstation. (Tr. 221.) 25
When Varela started at workstation #10, Foreman Calero told him that there was an
empty office on the 17th floor which Varela was required to clean as part of the regular
workstation #10 work duties even if it became occupied in the future. (Tr. 225.) Varela
responded saying to Foreman Calero: “Ok, that’s fine.” Id. 30
6 There was no evidence presented showing that Varela was placed on probation or supervised for his behavior by
Metro once he was transferred to the 100 Montgomery Building as a result of his argument with a coworker.
7 Foreman Calero was a third-party witness at the time of hearing as he previously worked for Metro for 10 years
before leaving Metro and starting work with the City and County of San Francisco as a janitor in October 2018. Tr.
218.
8 Varela alleges that he was given the 1st floor lobby gym to clean because there were two empty offices on floors 6
and 17 during his almost 4-month tenure at workstation #10. Tr. 26. Varela further alleges that Foreman Calero told
him that if the 2 empty office became occupied, he would no longer be required to clean the 1st floor gym. Tr. 26–
28. As discussed later in this decision, I reject Varela’s description of his alleged changing work duties at
workstation #10 and find that they never changed from those of Varela’s predecessor and that these work duties
have continually included the 1st floor lobby gym with restrooms and shower, the 6th floor and restrooms, and the
17th floor and restrooms, whether occupied or not. See Tr. 171–172, 245; GC Exh. 9.
9 Metro Director Larios had been director of operations with Metro for 18 years at the time of hearing. Tr. 166.
Before then, Larios had worked as a senior project manager for a competitor to Metro for 18 years. Id. Director
Larios also has known the Charging Party Varela for 10 years prior to the hearing when Varela worked at the 870
Market Street Building. Tr. 167.
JD(SF)-12-20
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In fact, in April, Foreman Calero instructed Varela to continue cleaning a previously
vacant 6th Floor office and Varela cleaned it without objection. (Tr. 27.)
Foreman Calero strongly denied that he ever told Varela that Varela could stop cleaning
the 1st floor lobby gym once the offices on the 6th floor and 17th floor were fully occupied as 5
Foreman Calero was not authorized to take work away from Varela’s workstation #10. (Tr. 222.)
C. Varela’s June 26 Outburst with Foreman Calero.
On June 26, 2017, at the start of their shifts at 5 p.m., Foreman Calero informed Varela 10
that a new tenant had just moved into space on the 6th floor of the building and reminded Varela
that being assigned workstation #10, Varela was responsible for cleaning the first floor lobby
gym and floors 6 and 17 whether or not they were fully occupied by tenants. (Tr. 26, 171–172,
176–177, 220–223; GC Exh. 9.)
15
In response, Varela started yelling using broad profanities with Foreman Calero and
became upset about Varela’s workload at workstation #10 and having to clean the 1st floor gym
and floors 6 and 17 at the 100 Montgomery Street Building. (Tr. 183, 223; GC Exh. 13 at 1.)
Varela told Foreman Calero that he was going to go to the Union and complain about what
Varela perceived to be his newly increased workload. Varela understood that if tenants moved 20
into the empty offices on the 6th and 17th floors at the 100 Montgomery Building, he would no
longer be responsible for cleaning the 1st floor lobby gym. (Tr. 26–28, 87, 90; GC Exh. 3.)
In response, Foreman Calero acknowledged to Varela that he could go to the Union and
complain as Foreman Calero opined that he was also a union member at that time who 25
understood the rights of union members to complain about workloads and other terms and
conditions of employment. (Tr. 224, 279.) In addition, when Varela started refusing to do the
work at his workstation #10 on June 26 and told Foreman Calero that Varela was going to go to
the Union, Foreman Calero specifically responded:
30
It’s fine. I’m a Union member. You have that right. It’s not a problem. You can
go talk to them [the Union].
(Tr. 28, 183.)
Foreman Calero reported this incident to Metro Director Larios describing it as Varela 35
“got out of control” on June 26 when they were discussing Varela’s workstation #10 duties and
that Varela got very upset at Calero and Varela started yelling at Foreman Calero. (Tr. 183, 223;
GC Exh. 13 at 1.)
After having this discussion with Foreman Calero at the beginning of his shift on June 26, 40
Varela decided he would not work his shift later on June 26 and he, instead, returned home. (Tr.
224.) Varela did not indicate that he was sick or otherwise incapable of working on June 26 other
than being upset. Consequently, Foreman Calero cleaned workstation #10 on June 26 in place of
Varela. Id.
45
JD(SF)-12-20
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At no time on June 26, did Foreman Calero discuss, instruct, or offer to Varela as an
option, that Varela stay home and not return to work at his workstation #10 at the 100
Montgomery Street Building while Varela worked out his workload issue. (Tr. 223–224.)
In fact, Varela had knowledge that the regular custom and practice for all union members 5
who file grievances involving their workload conditions is that they are instructed by the union
to return to work. (Tr. 66–67, 202–203, 224, 234–235, 258–259, 264-265 and 279.) Once again,
if the union member files a grievance not challenging a suspension or termination of
employment, they are expected to continue working at their job uninterrupted while their
grievance runs its course and gets worked out, settles, or is eventually arbitrated or litigated. Id. 10
D. The June 27 Teleconference Between the Union, Varela, and Metro Regarding
Varela’s Grievance.
On June 27, Varela went to the Union headquarters’ office and brought his workstation 15
#10 workload issue to the Union’s attention claiming his foreman was giving him more work
(the June 27 workload issue). (Tr. 30; GC Exh. 3 at 2.) Specifically, the June 27 workload issue
provides:
To whom it may concern, when I [Varela] arrived, the Foreman Jose Calero from 20
100 Montgomery [St. Building] explained my station to me, that I had to do the
17th Floor and the 6th Floor, an empty office on the 17th Floor and another empty
one on the 6th. So, I [Varela] was going to do [clean] the gym instead of empty
offices… told that if the offices on the 6th and 17th Floors were filled, I [Varela]
wasn’t going to have the gym anymore, and now it’s not the case, he [Calero] 25
didn’t say anything about that, and he [Calero] wants me [Varela] to do all the
work and I refused and he [Calero] told me to go to the Union.
(Tr. 238; GC Exh. 3 at 2.)
30
Also, on June 27, Varela met at the union office with the Union’s vice-president,
Abozayd,10 its Business Agent Hadwan,11 and the Union’s front desk receptionist and Business
Agent Estrella12 who received the June 27 workload issue from Varela, delivered it to Hadwan,
and functioned primarily as an interpreter or translator for Varela during their June 27 meeting
discussing the June 27 workload issue with Metro. (Tr. 230, 276–288; GC Exh. 3.) 35
At the beginning of their meeting, Abozayd called Metro Director Larios and put the
conversation on speakerphone in the presence of Varela, Abozayd, Hadwan, and Estrella. (Tr.
10 Abozayd began working with the Union in 1998 and has been its vice-president since 2002. Tr. 143–144.
11 Hadwan began working with the Union in 2008 and became a business agent for SEIU Local 87 in 2009. Tr. 228–
229.
12 Estrella began working for the Union in 2015 and left in September 2017. Tr 274. In June and July 2017, Estrella
worked as the Union’s front desk receptionist and answered and transferred telephone calls. Tr. 275. Estrella worked
as an organizer, dispatcher, and finally as a business agent where he would sometimes resolve grievances for the
Union while working the front desk. Id. At the time of hearing, Estrella was a third party witness who was employed
as a manager/supervisor at IS, a company that also provides cleaning, security and catering services in San
Francisco, with no business relationship to the Union or Metro. Tr. 274.
JD(SF)-12-20
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37–38, 160.) In this June 27 teleconference conversation, Abozayd asks Larios if he knows
about workstation #10 at the 100 Montgomery Building which Abozayd points out to Larios that
Varela’s workstation #10 covers the 6th Floor, the 17th Floor, and the 1st Floor lobby
gymnasium. (Tr. 200–202; GC Exh. 4 at 2.) Abozayd asks Director Larios why Metro added the
gym to Varela’s workstation #10. (Tr. 202, 232.) 5
Next, Abozayd mentioned Varela’s June 27 workload issue that alleged that he was
working at workstation #10 at the 100 Montgomery Building that had added work duties that
were too heavy for Varela since Varela took over the position. (Tr. 167, 171, 231, 277–278.)
The group also asked Director Larios whether workstation #10 had changed since Varela took 10
over.
Director Larios answered the group’s questions saying he thought that Varela’s
workstation #10 had remained unchanged as the retired janitor who worked that same
workstation before Varela took over also had full responsibility for cleaning floors 6 and 17 15
along with the gymnasium in the 1st floor lobby. (Tr. 171–172, 202, 231.) Moreover, Director
Larios added that the Union group calling him were welcome to check with union member and
Metro Foreman Calero to verify the unchanged duties of workstation #10 as Calero had been at
the 100 Montgomery St. Building “forever” to confirm that the workload duties at workstation
#10 remained unchanged as they have been for many years when it was transferred from the 20
retired janitor to Varela. (Tr. 172.) Director Larios reiterated to the group that Foreman Calero
can verify that there were no changes and that Metro was not adding more work for Varela on
the 3 floors involved with workstation #10. Id.
Director Larios further confirmed that the various workstations at the 100 Montgomery 25
St. Building have remained unchanged for years and years and normally they do not change at
all. (Tr. 172, 231, 233.) Director Larios further opined that whenever there is some workload
dispute involving a workstation, the Union usually goes to its member and points this out as the
Union is very familiar that these unchanged workstations exist at Metro. Id.
30
Next, Abozayd asks Larios how Metro breaks out payment to the janitor working at
workstation #10 and Larios responds saying Metro pays 6 hours (3 hours each) for floors 6 and
17, and 1.5 hours for cleaning the first floor lobby gym. (Tr. 38, 278; GC Exh. 4 at 2.)
Later in the teleconference, Director Larios responded to Abozayd’s question and Larios 35
convincingly explained that he thought that Varela’s job duties at his workstation #10 had not
increased or changed in any way from those of the retired employee who worked the same
position before Varela took over in early March as the workstation #10 has always been
responsible for cleaning the first floor gymnasium and all of the 6th and 17th floors at the 100
Montgomery Building. (Tr. 171–172, 231, 233; GC Exh. 9.) The conference call with Larios 40
concluded with Larios saying he would also check with Foreman Calero about workstation #10
and let the Union know if what Larios had stated to be the unchanged work duties for
workstation #10 had, in fact, changed from when Varela’s predecessor had workstation #10 at
the 100 Montgomery Building. (Tr. 233, 278.)
45
JD(SF)-12-20
7
Hadwan opined that Director Larios’ response fully resolved Varela’s June 27 workload
issue unless Hadwan received something to the contrary after Larios consulted with Foreman
Calero to change Larios’ belief that workstation #10 remained unchanged from before Varela
took over the position in March 2017 to the current date—the position was responsible for
cleaning the full 17th floor with restrooms; the full 6th floor with restrooms; and the 1st floor 5
lobby gym with restrooms and showers whether fully occupied or not over a 7.5 hour period.13
(Tr. 231, 233, 258–259, 264)
In addition, Estrella also recalled that during this teleconference soon thereafter at the
June 27 meeting, both Abozayd and Hadwan directly “asked him [Varela] to go back to work” at 10
his workstation #10 at the 100 Montgomery St. Building while Director Larios looked into
Varela’s complaint of an increased workload.14 (Tr. 269, 279.)
Hadwan confirms Estrella’s recollection of what he heard and observed and adds that
Hadwan, Abozayd, and Estrella simply told Varela to go back to work and “that’s it” as Varela’s 15
June 27 workload issue was resolved given Director Larios’ stated belief that nothing had
changed or been added to Varela’s workstation #10. (Tr. 234, 237, 269.)
Hadwan further explains that Varela came in on June 27 and filled out an intake form for
his workload issue and the Union quickly solved Varela’s workload issue when they discussed it 20
with Metro Director Larios at the teleconference and he stated his belief that workstation #10
remained unchanged for many years from Varela’s predecessor janitor to the present position
held by Varela. (Tr. 237, 258–259.) Hadwan further explains that if there was some argument or
disagreement with Metro on June 27 about Varela’s workload issue, the Union would have
13 Hadwan and Abozayd further explain that a union member’s workload complaint can be written up in an intake
form and the Union will contact an employer quickly and the Union will inform the company what workload issue is
being raised by a union member and the union member will go back to work while the company resolves the
workload issue if the company, like Employer in this case, says it will resolve the workload issue. Tr. 202–203,
234–235. Hadwan adds that in complicated cases, the Union will actually go to the building where the workload
issue resides and walk the workstation to verify the workload. Tr. 234–235. Hadwan concludes saying that these
complicated cases usually only arise when hours are being cut which is not the case here. Id. I reject Varela’s
contrary statements as being inconsistent and untrue when compared to the preponderance of evidence in the record
including his unproven statements that he was told or misled by the Union to stay home or that he definitely
informed Estrella that he would stay home after the June 27 teleconference with Metro. I also reject Varela’s
statement that the usual custom and practice for a union member who raises a workload question is for the member
to stay home until the matter is fully resolved as this is contrary to the more reliable opinions and work experience
voiced by Hadwan, Abozayd, and Estrella. Tr. 38–40, 62–63, 66-67, 202–203, 264–265, 269, 279–280, and 282.
14 As referenced above in fn. 12 above, third party witness and former union member Estrella recalled specifically
that Varela told him that Foreman Calero told Varela to go to the Union with his workload complaint. Tr. 279.
Estrella also remembered that Varela also told him that Foreman Calero, rather than Estrella, Union vice-president
Abozayd or Business Agent Hadwan, instructed Varela not to go back to work. Id. To the contrary and without
hesitation, third party witness Estrella confidently confirmed that Abozayd and Hadwan both asked Varela to “go
back to work” at the end of the June 27 meeting. Id. Moreover, Foreman Calero also confidently testified without
pause that he did not instruct Varela, nor was he authorized to instruct Varela, to stay at home and not return to work
after June 26, 2017. Tr. 224. At hearing, Varela denied being told by Foreman Calero to stay at home. Tr. 74–75. As
a result, I reject Varela’s statements that he was instructed by anyone, including Foreman Calero, Abozayd,
Hadwan, or Estrella, to stay home and not return to work after June 26, 2017, until his workload issue was resolved.
JD(SF)-12-20
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definitely filed a grievance the same as they would if Varela was suspended or terminated from
employment at the building, or his workstation hours were cut from 7.5 to 4 hours.15 Id.
Abozayd specifically recalls that he told Varela to go to work and to do the best he can
and if he cannot finish the job, Varela should inform Foreman Calero that he cannot finish the 5
job due to the June 27 workload issue and if there is still a problem, Abozayd can meet with
Varela on June 28 or after his next work day.16 (Tr. 202, 269.)
Estrella also recalled that Varela responded by muttering under his breath in Spanish on
his way out of the Union office building that: “It’s not fair, it’s not fair. I shouldn’t go back to 10
work.” (Tr. 279–280.) Estrella specifically recalled that after he heard these mutterings from
Varela on June 27, he did not respond or have any more conversations with Varela about his
workload issue or his subsequent grievance. (Tr. 282.)
Also on June 27, after the group meeting and while he was walking downstairs with 15
Varela, Estrella believably denied that Varela told him that he was to wait for an answer from the
Union about his June 27 workload issue concerning his alleged excess workload before returning
to work. (Tr. 282.) Estrella specifically denies that Varela told him on June 27 that he was not
going to go to work. Id. Instead, as stated above, Varela only muttered under his breath that it
was unfair, and that Varela should not have to go back to work. (Tr. 279–280.) 20
I reject as unsupported by a preponderance of evidence Varela’s contradicting version of
the facts from the June 27 conference call with Director Larios at Metro. Varela’s rejected
version of facts includes that after the group teleconference call ended, either vice-president
Abozayd or Business Agent Hadwan sent Varela home and told him “to wait for a phone call 25
from the union once the issue at hand was resolved.” (Tr. 282; GC Exh. 4 at 2.) Even if Varela’s
version of what occurred at the end of the teleconference call is true, this is not evidence that
either Abozayd or Hadwan ever told Varela or reasonably led him to believe that he should stay
home and not return to work after June 26. In addition, Varela’s October 31, affidavit does not
say that anyone from the Union told Varela to stay home from work after June 26.17 (Tr. 95–96.) 30
15 Hadwan opined that Varela’s June 27 workload issue was not a grievance. Tr. 264.
16 Similarly, Hadwan opined that in his 10 years of experience as a business agent, most times a union member will
come into the Union headquarters the very next day if the member’s workload problem is not resolved. Tr. 236.
Here, Varela did not come into the Union office to meet Abozayd or Hadwan until July 20 after he was terminated
by Metro for not calling or showing up to work. Tr. 161, 240, and 282.
17 Based upon the entire record and my observations of the witnesses, I simply cannot find that Charging Party
Varela was a credible witness overall. The evidence establishes that Varela left out of his October 2017 affidavit any
reference to his allegation that Abozayd and/or Hadwan told him to stay home from work until his June 27 workload
issue was worked out. (Tr. 95–96.) In addition, as stated below in Sec. F. of this decision, I further find that Varela
was not telling the truth when he said that he did not know that he had been terminated by Metro until late July or
early August after he returned from his Mexico vacation and Metro resent the July 7 termination letter and the
reissued final paycheck. The address where Metro sent the July 7 termination letter and final paycheck was accurate
and there was no evidence put forth proving that Varela had any problems receiving mail at his home. In addition,
Hadwan and Employer Director Larios were more believable when they recalled that Varela was aware that he had
been terminated when Hadwan met with Varela and his daughter on July 20 and Director Larios also opined that
Varela received the July 7 termination letter by July 17 as it was mailed to his regular mailing address. Tr. 175, 181,
245–248, 262.
JD(SF)-12-20
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In response, Varela admits that he did not tell Abozayd or Hadwan that he was not going
to go to work on June 27. (Tr. 40.) Varela alleges that, instead, he told Estrella, outside the
presence of Abozayd and Hadwan, that he was not going to go work on June 27. Id. Once again,
I reject Varela’s statement that he specifically told Estrella that he was not going to go to work 5
until he had an answer about his workload issue from the Union as this fully contradicts the
consistent recollection of Abozayd, Hadwan and Estrella that Varela was specifically instructed
to go back to work at his workstation #10 on June 27 and that Varela only whispered to himself
that he should not be required to return to work before he heard more from Metro or the Union.
(Tr. 202, 234, 238, and 279–280.) As stated above, staying at home after being instructed to 10
return to work while a workload issue was resolved is also contrary to the Union’s normal
custom and practice known to Varela.
E. Varela’s Continued Absences from Metro Workstation #10 from June 27
through July 7.15
On June 28, Director Larios sends an email to Business Agent Hadwan and copies Union
Vice-President Abozayd which confirmed what he told the group the day before on June 27 that
Varela’s workstation #10 remained unchanged from Varela’s predecessor to Varela taking over
in March to June 28. (Tr. 176–177, 245; GC Exh. 9.) Specifically, the email provides:20
This is to confirm that the job station of Alejandro Varela is 7.5 hours and
includes the following floors/areas:
Full 17th floor with restrooms25
Full 6th floor with restrooms
1st floor fitness center with restrooms/showers.
Note: Suite 1700 became vacant and we did not cut time and when became
occupied we did not add time.30
Id.
Estrella recalled Varela calling in to the intake desk on a frequent basis even before he
raised his June 27 workload issue as Varela would call the front desk and he liked to chat about
general union matters usually for 5–10 minutes. (Tr. 291–297.) Estrella also recalled that on June 35
28, Varela once again called Estrella at the reception desk and asked broad questions about union
picketing and other general union matters unrelated to his June 27 workload issue. (Tr. 281–283,
288.) In addition, after June 28, Estrella recalled that Varela called the Union’s front intake
reception desk quite a few times during the next week or two asking various questions that were
never specific to his resolved June 27 workload issue. (Tr. 293.) Estrella also confidently 40
recalled that Varela’s calls into the Union were not about waiting for some answer or Metro’s
response to his June 27 workload issue, or Varela’s not working at Metro. Id. Once again, on
average, Varela’s calls into the Union’s front desk would last 5–10 minutes. Id.
Estrella appeared confident when he directly denied talking to Varela about his June 27 45
workload issue on or after June 28 and also denies that: (1) Varela called him asking for answers
JD(SF)-12-20
10
to his June 27 workload issue; (2) Estrella spoke to Hadwan about the status of the June 27
workload issue; and/or (3) Varela called and told Estrella to let Hadwan know that Varela was
not working and that it had been 3 days since Varela last worked. (Tr. 282–289.)18
Varela continued to miss work from June 26 through July 7, 2017, without informing the 5
Union, calling into Metro, or showing up to work at his regular workstation #10 at the 100
Montgomery St. Building. (Tr. 174.)
Abozayd opined that the normal custom and practice of a union member is for them to
continue to work when they have a workload issue (anything short of suspension or termination) 10
and Varela never told Abozayd or Hadwan that he was not going to go back to work after the
June 27 teleconference with Director Larios.19 (Tr. 202–203, 234–235.) Here, Abozayd and
Hadwan specifically instructed Varela to return to work on June 27. Varela did mutter under his
breath to Estrella that his workload was unfair and that he should not have to go back to work,
but Varela never told Estrella or anyone at the Union or Metro that he was not returning to work15
on or after June 27. (Tr. 279–280.) Estrella specifically recalled that after he heard these
mutterings from Varela on June 27, he did not respond or have any more conversations with
Varela about his workload issue or any other complaints. (Tr. 282.)
Varela first showed up at the 100 Montgomery St. Building on July 6 or 7, 2017, to 20
collect his paycheck from Foreman Calero but neither Calero nor Varela discussed Varela’s June
27 workload issue or the circumstances behind Varela’s decision to stop working for 11 days on
and after June 26 and not call Metro.20 (Tr. 48, 174.)
Director Larios heard from Foreman Calero that Varela had picked up his paycheck on 25
July 6 or 7 and in discussion with Metro’s HR manager Marv Florence (Manager Florence), they
decided to terminate Varela’s employment. (Tr. 173–174, 176; GC Exh 7.) Because Varela was a
no show since June 26 and did not call to Metro to explain his absences, Metro terminated Varela
11 days later on July 7, 2017, and mailed the termination letter and final paycheck to him at his
usual house address in the net amount of $1384.54 for Varela’s unused vacation pay. (Tr. 174; 30
GC Exh. 7.)
18 I find former union member and third party witness Estrella very believable in this line of questioning as having
left the Union 2 years earlier, he was no longer professionally aligned with either union members or union
management at the time of hearing. Moreover, Estrella convincingly stated that when union members like Varela
called in with any complaints, his usual custom and practice in his former position at the union reception intake
desk, was to routinely transfer calls, grievances, or documents, to Business Agent Hadwan and not get personally
involved with a complaint or act as a go-between. Tr. 284, 287–289. Here, Estrella was not asked by Varela, nor did
Estrella transfer to or talk to Hadwan, about Varela’s resolved June 27 workload issue. Tr. 282-289.
19 Hadwan also opined that Director Larios’ teleconference response resolved Varela’s June 27 workload issue as his
workstation #10 work duties were Varela’s main concern and Varela was not being transferred or suspended or
asked to go home or otherwise which would be a completely different situation. Tr. 234.
20 Director Larios identified when Metro pays its employees each month and I find Director Larios’ explanation of
the July 6 or July 7 pay date more believable than Varela stating that he went to pick up his paycheck on July 10. In
addition, Director Larios heard from Foreman Calero that Varela had picked up his paycheck on July 6 or 7 and this
was considered by Director Larios and Manager Florence when they decided to terminate Varela who did not
mention his workload issue to Foreman Calero or his decision to stop working at Metro when he retrieved his
paycheck. Tr. 173–174, 176, 184–185; GC Exh 7.
JD(SF)-12-20
11
Director Larios opined that Metro trains all of its employees about the protocol and he
thought Varela should know the protocol for what to do when you are off of work and Director
Larios knew Varela worked for at least 12 years at Metro: (Tr. 184.)
[E]verybody knows that they need to call the day that they go out and the day that 5
they come back, and that’s the protocol for the standard practice. They need to
call before 2 p.m. If they’re missing from work today, they need to call before 2
p.m. at the current time and say I’m going to be out. My name is Alejandro
[Varela], for example. I work at 870 Market. I’m out sick today… or I’m on
vacation, or starting my vacation. That’s the standard protocol. 10
Id.
Director Larios further opined that he believed that Varela has complied with this
standard protocol many times in the past over the years when he was going to be out of work and 15
in this case, Varela no-called and no-showed and Metro terminated Varela on July 7 for this. (Tr.
184, 211.) (See also GC Exh. 8 at 19–20 for the Leave of Absence policy in the controlling CBA
between Respondent and Metro.)
Director Larios further explained that Metro waited at first when Varela did not call after 20
June 26 and then Director Larios and Manager Florence met to discuss and decide to terminate
Varela when they had heard that Varela continued to miss work without calling and being a no-
show yet he showed up at the 100 Montgomery St. Building on July 6 or 7 to pick up his
paycheck from Foreman Calero. (Tr. 184–185.)
25
Consequently, Director Larios and Manager Florence did not terminate Varela for being a
no-call/no-show from June 26 to June 28. (Tr. 188–189.) Instead, the decision by Metro to
terminate Varela was based on Varela’s decision to stop working and missing almost 2 weeks of
work and Varela not calling and not showing up for work. Id.
30
F. After Metro’s July 7 Termination of Varela, His July 20 Grievance Became the
Primary Focus of Varela, the Union and Metro.
Before July 20, 3017, none of the union officials had any knowledge that Varela
continued to miss work at Metro workstation #10 after June 26 and after the group met on June 35
27 to resolve Varela’s June 27 workload issue at workstation #10 at the 100 Montgomery Street
Building.21 (Tr. 161, 262–263, 282–289.) Moreover, Hadwan reports that Varela never called
him after June 27 about his June 27 workload issue. (Tr. 236–237, 262–263.) In addition,
Hadwan recalled that he did not hear from Varela’s daughter until after Varela had been
terminated by Metro and the Union had filed the July 20 grievance for Varela. (Tr. 240.) 40
21 As a result, I reject Varela’s statement that he went to the Union office on July 5, 13, or 14 and spoke to Estrella,
Hadwan, and Abozayd about the status of his June 27 workload issue as it is unsupported by a preponderance of
evidence. Tr. 50. Moreover, by July 7, Varela’s workload issue had evolved to become Metro’s termination of
Varela for being a no-show/no-call rather than Varela’s June 27 workload issue. As stated above in footnote 3, the
Union’s processing of Varela’s July 20 grievance is not being challenged here. Tr. 21–22.
JD(SF)-12-20
12
On July 20, Varela filed a grievance with the Union regarding his termination of
employment by Metro which contains a 2-page typewritten letter dated July 17, 2017, that
Varela’s daughter Jacqueline prepared on his behalf to form Varela’s termination grievance (the
July 20 grievance). (Tr. 280; GC Exh. 4.) The July 20 grievance contains a summary of events as
Varela alleges from June 26 and June 27 and ends with his complaint that he has been “without 5
work for 18 days” and claims that Varela “has called the union on several occasions in those 18
days and was told that the issue was not solved yet” . . . and that Varela “even went into the
union office to check on the status of my [his] workstation [#10] and was told that the issue was
that I [Varela] never reported to my [his] company [Metro].” Id. The letter goes on with Varela
maintaining that he “was not supposed to report to the company [his workstation #10 at the 10
Metro 100 Montgomery Street Building] because the union was going to resolve the [workload]
issue with the workstation.” Id.
I reject Varela’s version of alleged facts for events from June 27 through July 17 as
unsupported by the preponderance of evidence and I find that both Union officials Abozayd and 15
Hadwan directly instructed Varela to go back to work at his workstation #10 at the 100
Montgomery St. Building after their June 27 teleconference call while Director Larios resolved
Varela’s complaint of an increased workload to determine if Director Larios’ recollection of the
work duties tied to workstation #10 was confirmed by Larios consulting Foreman Calero and
determining once again that workstation #10 at the 100 Montgomery St. Building had not 20
changed for Varela from the workstation of his predecessor. (Tr. 176–177, 279; GC Exh. 9.)
Varela’s July 20 grievance contains the July 17 letter that was drafted by his daughter
Jacqueline who accompanied him to the Union office to meet with Hadwan to assist him in the
grievance. (Tr. 113–118, 243, 247–248; GC Exh. 4.) The July 20 grievance states that Varela had 25
gone to the Union about missing work for 18 days and he was seeking a paycheck for his missed
work and also provides that Varela had been told that a new work issue involved Varela missing
work at Metro workstation #10 since June 26.22 (Tr. 243, 247–248; GC Exh. 4 at 3.)
Estrella further opined that by July 20, his only role with respect to Varela’s union 30
grievances was to act as his translator and that Business Agent Hadwan was responsible for
resolving Varela’s July 20 grievance. (Tr. 280, 282–289.) After the June 27 office meeting which
the Union believed fully resolved Varela’s workload issue, Abozayd also delegated to Hadwan
the handling of Varela’s July 20 grievance and did not speak with Varela or his daughter about it.
(Tr. 161.) 35
On July 20, at 11:17 a.m. Business Agent Hadwan tries to correct the miscommunication
between Varela and Metro that results in the July 20 grievance and sends an email to Director
Larios saying that: “. . . Mr. Varela never quit. He was just confused since his foreman told him
22 I further find that Varela’s statement that he did not receive Metro’s July 7 termination letter and final paycheck at
his home until August 2017 is not true. Hadwan forcefully stated that Varela brought the July 7 termination letter to
him when Varela came in to file the July 20 grievance and Director Larios also opined that Varela received the July
7 termination letter by July 17 as it was mailed to his regular mailing address. Tr. 175, 181, 245–248, 262. As a
result, I find that Varela and his daughter received the July 7 termination letter and paycheck before July 17 which
caused them to write the July 17 letter leading to the July 20 grievance which now seeks a new paycheck from
Metro for the entire period that Varela decided to miss work through the July 20 grievance.
JD(SF)-12-20
13
to go back to the Union, and he’s willing to go back to his station. Please confirm.” (Tr. 18–-182;
GC Exh. 13 at 2.)
On July 20, at 11:24 a.m. Business Agent Hadwan sends another email to Director Larios
with Varela’s July 20 grievance and written statement of events and Hadwan tells Director 5
Larios, trying to assist Varela to get his former job at Metro back, that Varela apparently
misunderstood what was going on at the June 27 meeting and conference call and the Union
suggests that Metro do a two way transfer between Varela and another janitor with a grievance
who also worked at a Metro building, Mr. Arturo Aviles, and that they close both (Varela and
Aviles) grievance cases. (Tr. 178; GC Exh. 11.) 10
Director Larios opines that as of July 20, his decision to terminate Varela was final since
he and Manager Florence had already discussed terminating Varela and had sent him the July 7
termination letter which communicated to Varela that he was terminated by Metro as a no-
show/no-call, and Director Larios spoke to Foreman Calero about Calero’s encounter with 15
Varela on June 26 and Foreman Calero recalled to say to Director Larios that Varela “got out of
control, very upset at him [Foreman Calero] and yelled at him.” (Tr. 182–183, 251; GC Exh. 13
at 1.)
Estrella opined that Varela “disappeared” for a little bit after he filed his July 20 20
grievance. (Tr. 281–282.)
On July 24, Hadwan writes again to Director Larios saying that he was confirming that
Arturo Aviles will stay at 100 Montgomery St. Building at workstation #10 until the Union
settles Varela’s July 20 grievance. (Tr. 178, 249; GC Exh. 11.) 25
Later on July 24, Director Larios responds to Hadwan’s July 20 email and writes that
Director Larios is confirming that “Arturo [Aviles] will be cleaning Alejandro Varela job station
[#10] starting today. Note: Arturo was cleaning Jorge Franco’s job station because he was on
vacations. [sic.] Jorge came back to work today.” (Tr. 178; GC Exh. 11.) Director Larios opined 30
that Arturo Aviles was taking over Varela’s workstation #10 because Varela was terminated as a
no show/no call and Arturo Aviles was replacing Varela. (Tr. 178, 180, 250.)
On July 25, Hadwan calls Varela’s daughter Jacqueline to report that he had gotten busy
and that he was waiting for Metro’s response to Hadwan’s proposal to get Varela back to work. 35
(Tr. 120–121, 241, 243.)
On July 26, Hadwan sends Director Larios a letter informing Metro that the Union has
filed a grievance against Metro on behalf of union member Varela alleging that Varela was told
by his foreman to go back to the Union, and now Metro refused to let Varela go back to work at 40
workstation #10 at the 100 Montgomery St. Building. (Tr. 180, 252–254; GC Exh. 14.) Hadwan
opines that as a business agent, he is fighting for Varela trying to get him his former job back.
(Tr. 252.) The grievance demands that Varela must go back to his site immediately and that
Metro pays for all days lost. Id.
45
JD(SF)-12-20
14
Also on July 26, Director Larios responds to Hadwan saying:
Alejandro [Varela] was off from work several weeks and Metro was not notified
from the Union or Alejandro [Varela] that he will be off from work. Alejandro
[Varela] knows very well the communication protocols that he needs to follow 5
when he is off from work. For no[t] [sic.] calling or showing up to work for
several weeks, Metro considered this a voluntary quit.
(GC. Exh. 13 at 1.)
On July 27, Metro resends Varela’s final paycheck for unpaid vacation to him as Varela 10
went to the Union and claimed he did not receive Metro’s July 7 termination letter, or the final
paycheck and the Union approached Director Larios soon thereafter. (Tr. 175, 181; GC Exh. 7.)
Director Larios responds saying to the Union and Varela that “we [Metro] terminated you
[Varela]. We mailed you [the July 7 termination letter and unpaid vacation check].” Id. Varela
responds saying: “No, I didn’t receive them [the July 7 letter and check]” and Director Larios 15
responds: “And then we resent it.” Id.
Finally, Director Larios tells the Union and Varela that the check cleared the bank having
been cashed by Varela as Metro verified this with its bank. (Tr. 175, 181; GC Exh. 7.) By that
time, Varela had filed his July 20 grievance and Director Larios opines that Varela must have 20
received the July 7 termination letter from Metro that Varela claimed he did not receive though
Varela filed his July 20 grievance based on Varela not reporting to work for 18 days. (Tr. 175,
181, 245–248, 262; GC Exh. 4.)
During the first 2 weeks of August 2017, Varela traveled to Mexico on vacation. (Tr. 25
85.)
On September 22, Varela filed his charge in this case alleging that the Union refused to
process Varela’s June 27 grievance regarding work assignments for arbitrary or discriminatory
reasons or in bad faith. (GC Exh. 1(a).)30

At hearing, the witnesses testified about events that had occurred more than 2 years
beforehand. As a result, I find it reasonable to expect that some recollections of facts have
diminished by the time of the hearing. Despite this, however, after clearly observing the
testimony of former union member and Metro Foreman Calero, Employer Director Larios, and 35
former union employee Estrella were consistent with documentary evidence and testimony from
union representatives Abozayd and Hadwan particularly with respect to the specific events on
June 27 and Varela’s unexplained absence from his workstation #10 from June 27 through his
termination on July 7. No credible evidence was presented that any union official or business
agent or Metro official, director, manager, supervisor, or foreman ever instructed, or offered to 40
Varela as an option, that Varela stay home and not return to his workstation #10 at the 100
Montgomery Street Building while Varela’s June 27 workload issue was pending.23 The decision
23 I further find that Foreman Calero’s testimony that he did not instruct Varela to stay home from work in
connection with his June 27 workload issue is more believable than Varela’s contrary testimony which I rejected
above as untrue as Foreman Calero did not hesitate when presenting his testimony, he acted confidently when
answering at hearing, and Calero was convincing when he explained that he was not authorized to issue Varela such
JD(SF)-12-20
15
to not call Metro and not show up to work on and after June 26, 2017, by Varela was his own
decision and contrary to what Varela knew or should have known was the Union’s regular
custom and practice of returning to work after being instructed by the Union to return to work
while his June 27 workload issue was pending unless the grievance involves a suspension or
termination. (Tr. 66–67, 184, 202–203, 234–235, 264–265.) Not returning to work was also 5
contrary to Metro’s communication protocol that Varela knew or should have known as
discussed by Director Larios who opined that Metro trains all of its employees about the protocol
and he thought Varela should know the protocol for what to do when you stay home from work
and Director Larios knew Varela easily worked for 12 years at Metro. (Tr. 184, 211.) (See also
GC Exh. 8 at 19–20 for the Leave of Absence policy in the controlling CBA between 10
Respondent and Metro.)
LEGAL ANALYSIS
I. The Union did not breach its duty of fair representation because it fully resolved 15
Varela’s June 27 workload issue on June 27 and Varela’s June 27 workstation #10
workload had not changed, and the Union told Varela to go back to work, and never
told him to stay home.
The General Counsel alleges that the Union violated Section 8(b)(1)(A) of the Act during 20
a span of several weeks by way of its agents, Abozayd, Hadwan, and/or Estrella, in connection
with its representative status and has failed to represent the Charging Party Varela for reasons
that are unfair, arbitrary, invidious, or in bad faith, and has breached the fiduciary duty it owed to
the Charging Party by failing to process and resolve Varela’s June 27 workload issue or by
misinforming and keeping Varela uninformed that the Employer had responded to Varela’s June 25
27 workload issue.24 (Tr. 22; GC Exhs. 1(a); 1(d); 1(k); and 1(l).)
The Respondent denies these allegations and avers that Varela’s June 27 workload issue
was fully processed and quickly resolved as Varela’s workstation #10 had not changed as
communicated to Varela and determined as part of the June 27 teleconference conversation with 30
Employer’s Director Larios and that the Union’s conduct in June and July toward Varela does
not constitute a violation of Section 8(b)(1)(A) because Varela alone decided to ignore the
Union’s order to return to work after the June 27 meeting and the Union was unaware that Varela
was not working before Employer Metro terminated Varela on July 7 for being a no-call/no-
show employee.35
an instruction to stay home while the June 27 workload issue was pending. Moreover, I find that the preponderance
of the evidence shows that Varela had knowledge that the Union’s regular custom and practice is for its members to
return to work while a grievance is pending which Varela, after years of union membership and experience as a
custodian in San Francisco, knew or should have known. Tr. 66–67, 202–203, 224, 234–235, 258–259, 264–265,
279. In addition, I further find that Varela was or should have been familiar with Metro’s protocol for
communicating absences and the ramifications if an employee is a no show/no call. Tr. 184, 211; GC Exh. 8 at 19–
20.
24 The General Counsel admits that this case does not seek adjudication of legal issues concerning any alleged union
failure to fulfill its duty in dispensing with Varela’s July 20 grievance for Employer’s termination of Varela’s
employment. Tr. 21.
JD(SF)-12-20
16
Section 8(b)(1)(A) states that “it shall be an unfair labor practice for a labor organization
or its agents . . . to restrain or coerce . . . employees in the exercise of their rights guaranteed” in
Section 7 of the Act. 29 U.S.C. § 158(b)(1)(A). A union’s duty of fair representation applies to
all union activity. A union may not treat a unit employee in a manner that is arbitrary,
discriminatory, or in bad faith. The review of a union’s performance must be allowed a wide 5
range of reasonableness in serving the unit employees, and any subsequent examination of a
union's performance must be “highly deferential” to the union’s performance and mere
negligence is not a breach of the duty. See Letter Carriers Branch 529, 319 NLRB 879, 881
(1995)(citing Vaca v. Sipes, 386 U.S. 171, 177 (1967); Airline Pilots Assn. v. O’Neil, 499 U.S.
65, 78 (1991). And a union's conduct is arbitrary only if, in light of the factual and legal10
landscape at the time of the union's actions, the union's behavior is so far outside a wide range of
reasonableness as to be irrational. Id.
In addition, the union has a duty of fair representation on behalf of all those for whom it
acts, without hostile discrimination. A union's power must be exercised fairly, impartially, and in 15
good faith, which gives an employee the right to be free from unfair or irrelevant or invidious
treatment by his exclusive bargaining agent. Vaca v. Sipes, 386 U.S. 171; Miranda Fuel
Company, Inc., 140 NLRB 181 (1962.) A union's obligation in this regard is breached when its
conduct toward a member of the collective-bargaining unit is arbitrary, discriminating, or in bad
faith. On the other hand, while the union may not arbitrarily ignore a meritorious grievance or 20
process it in a perfunctory manner, an individual employee does not have an absolute right to
have his grievance taken to arbitration. Id. In short, the union has an area of discretion in acting
reasonably and fairly.
Here, the General Counsel relies on the case, Teamsters Local 282, 267 NLRB 1130, 25
1131 (1983), where the Board found that the union was obligated to notify laid-off drivers of the
terms of the arbitration award which directly affected their employment and by failing to notify
these laid-off drivers, the Board held that the union acted arbitrarily and without lawful and
legitimate reason and breached its duty of fair representation. (GC Br. 21–22, 24–25.) The
Teamsters Local 282 case is distinguishable, however, as here, the Union set up a teleconference 30
to look into and resolve Varela’s June 27 workload issue determining that Varela’s workstation
#10 had not changed subject only to Foreman Calero telling the Employer Director Larios that
Larios’ understanding of the work duties at workstation #10 (the June 27 workload issue) was
incorrect. Instead, Foreman Calero agreed with Larios’ understanding that Varela’s workstation
#10 remained unchanged from Varela’s predecessor and included the 1st Floor lobby gym, the 35
6th Floor the 17th Floor and all restrooms whether fully occupied or not. Thus, Varela’s June 27
workload issue was fully resolved through Metro Director Larios’ response on June 27 in
Varela’s presence and the Union was not obligated to communicate any further with Varela after
ordering Varela to return to work and not to stay home.
40
The General Counsel also cites the case, Local 417, UAW, 245 NLRB 527, 534–535
(1980), in support of its argument that the Union breached its duty of fair representation. (GC Br.
21-23.) In Local 417, UAW, unlike in the instant matter, the union completely failed to dispose
of a member’s grievance and the Board held that by doing this the union willfully misinformed
the member of its unresolved status for more than 2 months. Id. In the current matter, however, I 45
find that the Union did not fail to process Varela’s June 27 workload issue as it was fully
JD(SF)-12-20
17
resolved at the June 27 teleconference where Employer Director Larios stated his understanding
to the Union and Varela that Varela’s workstation #10 had not changed and remained the same
as his predecessor at that workstation—clean the 1st Floor lobby gym and Floors 6 and 17
including restrooms and showers, whether fully occupied or not. The Union in this case did not
willfully misinform Varela about the status of his June 27 workload issue as it was fully resolved 5
on June 27 and the Union ordered Varela back to work and not to stay home and Varela himself
decided not to return to work leading to his termination by Metro.
In addition, I further find that the Union quickly disposed of Varela’s June 27 workload
issue on June 27 and its resolution of Varela’s workload issue was not perfunctory or motivated 10
by ill will or other invidious considerations.
Finally, the General Counsel also cites to King Soopers, Inc., 222 NLRB 1011, 1017–
1018 (1976), a case where the Board affirmed an administrative law judge’s finding that two
union representatives were hostile toward a union member and their hostility toward the union 15
member led to the judge’s determination that the union representatives failed to adequately
inform the union member of his seniority rights and correct the union member’s erroneous
understanding of seniority leading to the union member’s loss of employment. (GC Br. 21, 25–
26.) Here, there is no similar hostility or lack of credibility on the part of the Union agents
Abozayd, Hadwan and Estrella and any lack of credibility comes from Varela who did not return 20
to work after his June 27 workload issue was resolved when on June 27 Metro Director Larios
expressed his belief to Varela and the Union agents that workstation #10 was unchanged despite
specific instructions from Hadwan and Abozayd that Varela return to work.
In conclusion, I find that Respondent Union did not breach of its duty of fair 25
representation owed to Charging Party Varela and also did not violate Section 8(b)(1)(A) of the
Act when it fully resolved Varela’s June 27 workload issue quickly and ordered him to return to
work and never told him to stay home from work. In addition, the Union reasonably lacked
knowledge of Varela’s own decision to miss work and not call his employer prior to Employer
Metro’s termination of Varela. If any party is a wrongdoer here, it is Varela who willfully 30
decided to stay home from work contrary to the usual custom and practice of other union
members who question their work duties and in total disregard of Abozayd’s and Hadwan’s
specific orders that Varela return to work on June 27. Any mistake by the Union regarding
whether it should have known that Varela was not returning to work was mere negligence, but
not more. I am convinced that what occurred from June 27 through July 20 between the Union 35
and Varela was an unfortunate failure of communication. I further find that the Union did not
refuse to process Varela’s June 27 workload issue for arbitrary, discriminatory reasons or in bad
faith as it was resolved on June 27. I further find that there was no hostility, animus, or willful
misinformation on the part of the Union toward Varela and that the Union’s conduct here was
not so far outside the range of reasonableness as to be irrational.40
Accordingly, I find that the Union did not violate Section 8(b)(1)(A) of the Act.
45
JD(SF)-12-20
18
CONCLUSIONS OF LAW
1. Metro Services Group, is an employer within the meaning of Section 2(2), (6), and (7)
of the Act.5
2. Respondent, Service Employees International Union, Local 87, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Ahmed Abozayd, Abdo Hadwan, and Sergio Estrella are agents of the Respondent
within the meaning of Section 2(13) of the Act.
4. Respondent did not violate Section 8(b)(1)(A) of the Act in any manner alleged in the 10
amended complaint.
On the basis of the foregoing findings of fact, conclusions of law, and the entire record
and pursuant to Section 10(c) of the Act, I issue the following recommended25
15
ORDER
The complaint is dismissed.
Dated: Washington, D.C., May 14, 2020
20
Gerald Michael Etchingham
Administrative Law Judge
25 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
34-/k L45/e-