Service Employees International Union, United Healthcare Workers-West (Permanente Medical Group, Inc

National Labor Relations Board - Administrative Judge Opinions

Jun 12, 2014

20-CB-113164 (N.L.R.B. Jun. 12, 2014)

JD(SF)–27–14
Oakland, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SERVICE EMPLOYEES
INTERNATIONAL UNION, UNITED
HEALTHCARE WORKERS-WEST
(PERMANENTE MEDICAL GROUP,
INC.)
and Case No. 20-CB-113164

ANGELA A. FOGGY A.K.A. ANGELA
A. JOHNSON
David Reeves, Esq., San Francisco,
CA for the General Counsel
Bruce A. Harland, Esq., Weinberg, Roger
& Rosenfeld, Alameda, CA for the
Respondent
DECISION
Statement of the Case
Gerald A. Wacknov, Administrative Law Judge: Pursuant to notice a hearing in this
matter was held before me in Sacramento, California on February 18 and 19, 2014. The
captioned charge was filed on September 10, 2013 by Angela A. Foggy a.k.a. Angela A.
Johnson (Johnson). On November 27, 2013 the Acting Regional Director for Region 20 of the
National Labor Relations Board (Board) issued a complaint and notice of hearing alleging
violations by Service Employees International Union, United Healthcare Workers-West
(Respondent or Union) of Section 8(b)(1) (A) of the National Labor Relations Act, as amended
(Act). The Respondent, in its answer to the complaint, duly filed, denies that it has violated the
Act as alleged.
The parties were afforded a full opportunity to be heard, to call, examine, and cross-
examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs
have been received from Counsel for the General Counsel (General Counsel) and counsel for
the Respondent. Upon the entire record, and based upon my observation of the witnesses and
consideration of the briefs submitted, I make the following:
Findings of Fact
I. Jurisdiction
At all material times, the Permanente Medical Group, Inc. d/b/a Kaiser Permanente
South Sacramento Medical Center (Employer) has been a corporation with an office and place
2
of business located in Sacramento, California and has been engaged in operating a hospital
providing inpatient and outpatient medical care. In the course and conduct of its business
operations the Employer purchases and receives at its South Sacramento facility goods valued
in excess of $5,000 which originated directly from points outside the State of California. I find
that at all material times the Employer has been an employer engaged in commerce within the 5
meaning of Section 2(2), (6) and (7) of the Act, and has been a health care institution within the
meaning of Section 2(14) of the Act. .
II. The Labor Organizations Involved
10
It is admitted, and I find, that the Respondent is, and at all times material herein has
been, a labor organization within the meaning of Section 2(5) of the Act.
III. Alleged Unfair Labor Practices
15
A. Issues
The principal issue in this proceeding is whether the Respondent has violated Section
8(b)(1)(A) of the Act by failing and refusing to bring Johnson’s grievance to arbitration for
discriminatory, arbitrary and perfunctory reasons.20
B. Facts
Angela Johnson, the Charging party herein, worked for Kaiser Hospital from April 9,
1999 until the date of her discharge, March 30, 2009. At all material times herein she was a 25
member of the collective bargaining unit represented by the Respondent. During her ten-year
tenure she had never received written discipline for any infraction although she had received
prior counseling.
During the six years prior to her termination she was a program assistant in the 30
hospital’s chronic pain management clinic. She performed a wide range of duties. One of her
duties prior to her termination was to make the initial appointments for the pain management
patients, schedule their procedure, and thereafter remind them of their subsequent periodic
office visits. The patients who would be receiving periodic cortisone injections because of their
chronic pain were sent a packet of information explaining the procedure and emphasizing that it 35
was important for them to cease taking certain blood-thinning medications three days prior to
their cortisone injection as this could be dangerous and result in excessive bleeding; and
moreover, that If they neglected to do so the physician would not be able to administer the
cortisone injection. One of Johnson’s duties, which Johnson describe as “a low job on my totem
pole,” was to make confirmation calls to the patients two or three business days1 prior to their 40
appointment. Johnson testified:
A confirmation call is basically just calling the patient and saying you have this
appointment, remember? I’m just calling to remind you of your appointment. And
you should have got your packet in your mail, and it tells you that you need to 45
stop these medicines. So I’m just making sure you stopped, you know, your
medications and just reminding them of their appointment. If they had co-pays,
reminding them, you know…

1 The record is unclear whether the calls were to be made two days or three days prior to the
appointment.
JD(SF)–27–14
3
According to Johnson, while it was important to make these confirmation calls, it was the
lowest priority job to be performed during her busy day, as she was also occupied with many
other duties. Moreover, according to Johnson, as a practical matter, the reminder was not
critical as the patients already knew or should have known from the information contained in the 5
packet they had received and/or from prior calls and appointments that they were to cease
taking their medications prior to the visit. Thus, if Johnson would call the patient’s phone number
and the call would be picked up by the patient’s answering machine, a common occurrence,
Johnson would merely leave a message reminding the patient of the appointment and, in
accordance with HIPPA regulations, was not permitted to say anything about discontinuing their 10
medications as such information was not to be divulged to third parties who might listen to the
telephone messages. The record contains no evidence that in the event the patient’s answering
machine picked up the call there were any further attempts made to reach the patient directly.
One reminder call was sufficient.
15
Nevertheless, Johnson acknowledged during her testimony that it was important for the
calls to be made and to at least attempt to remind the patient to discontinue their blood-thinning
medications two or three days prior to the office visit. It was also necessary for Johnson to
document the fact that she had made the calls by entering the date and time of each call in the
computer system, and note whether she had talked to the patient or had simply left a message. 20
March 20, 2009 was a particularly hectic Friday. Johnson testified that the department
was short staffed with only a “skeleton crew” and she not only had to perform her multiple duties
but also the duties of other absent personnel. At the end of the day she began making the
reminder calls to patients who had appointments scheduled for the following Tuesday, March 25
24. However, she was unable to complete all the calls during the regular workday. She did not
ask permission to work overtime to complete her calls that day as, according to Johnson,
overtime work in that department was not permitted because of budgetary considerations. She
did not advise her supervisor that because of other pressing duties she was unable to make the
calls that day because the calls were of low priority or equally as important as other duties and 30
“we never did it like that.” Thus, Johnson testified, “if we had calls to continue over, then we
would just call them the next day.” Johnson further testified:
…the way the clinic ran and the way we had done it for years, six years, was that
if we didn’t call them that day, if we couldn’t get to it that day, then we got to it as 35
soon as possible, the next day…Because there were so many things that were
more—not more important. I can’t say that they were more important. But there
were so many things that we had to do in the clinic that we didn’t put off just to
give a reminder call for the appointment.
40
Early on Monday morning, March 23, Johnson continued making the reminder calls that
would have been made on Friday, giving the patients only a one-day reminder of their
scheduled appointments for the next day, Tuesday, March 24. Upon continuing to make these
calls that should have been made on the preceding Friday, she documented each call by
inadvertently, according to Johnson, entering the date March 20 rather than the correct date, 45
March 23 because, as she proceeded with the reminder call-list, she mistakenly entered the
date of the last entry she had made on March 20 for each successive reminder call. She did not
realize that she kept repeating the same mistake for all the reminder calls that should have been
JD(SF)–27–14
4
made on March 20. She did not testify that she had ever made a similar mistake by entering the
wrong date of reminder calls in the computer system.2
The record shows that it was highly unusual for personnel to check the computer system
or monitor Johnson’s work to see if calls were being timely made, but for an unknown reason 5
Johnson’s computer records were checked the morning of March 23 even as Johnson was
making the calls. As noted, the records reflect that Johnson was entering the date March 20 for
the calls she was making on March 23. Further, as was later learned by Johnson, a supervisor
phoned the patients that Johnson had called that morning and asked when they had received
the reminder calls and the patients verified that they had received the calls on Monday rather 10
than Friday.
Three days later, on March 26, Johnson was summoned by her supervisor, Assistant
Department Manager Rose Campbell, to Campbell’s office and told to bring a shop steward.
Johnson was the only shop steward in her department, and she first met with Shop Steward 15
Dawnyielle Moore. Johnson told Moore she didn’t know why she was being called to the office.
Because Moore, like Johnson, was a relatively new shop steward, Johnson told Campbell and
two other individuals in addition to Campbell who were present on behalf of the Employer, that
she did not feel comfortable with Moore as a representative. The Employer then summoned
another shop steward, Sheryl, whom Johnson did not know. Johnson said she didn’t feel 20
comfortable having Sheryl represent her either. Nevertheless Campbell began the interview.
Campbell began by asking Johnson whether she understood the confirmation call
guidelines. Johnson indicated that she understood the guidelines, and that she understood the
importance of calling and confirming the patients’ appointments three business days in advance 25
because it was important for certain patients to cease their medications prior to their
appointments. Johnson said she knew her job. She does not recall whether Campbell handed
her the computer logs showing that she had made the calls on March 23 rather than on March
20. She does recall, however, being asked about the dates of the confirmation calls, and
responded, “Well, what’s this got to do with anything?” She also told Campbell, “…if I put down 30
that date, that’s the date I called them.” Asked by Campbell whether she talked to each of the
patients and told them to stop taking the blood-thinning medication because she knew how
important it was, Johnson replied to Campbell that she always did that because she knew how
important it was. At the end of the interview Johnson was placed on suspension pending
termination. Johnson testified that even at that point she did not understand why she was being 35
interrogated or why she was suspended pending termination; nor had she realized she
mistakenly entered the incorrect date of March 20 for the reminder calls she made on March
23.3

2 The testimony of Johnson regarding her job duties and the relative importance of the
confirmation calls is background for the events occurring thereafter, and is neither credited nor
discredited. The Employer did not participate in this proceeding.
3 It appears from Johnson’s testimony that she was concerned about her tenure for several
reasons and opined that underlying the decision to coach or reprimand or terminate her were
other considerations, namely, that the department might be closing and/or jobs were being
consolidated and supervision preferred someone with less seniority to take her place; or that
someone was attempting to find a job for a friend and wanted to create an opening in the
department to accommodate the friend; or that in the department there were overtones of racial
discrimination toward Johnson. Johnson believes that prior to her discharge she was being
harassed, and that “they drowned me in work because they wanted me to fail.”
JD(SF)–27–14
5
Following the meeting, Johnson told the shop stewards that she did not understand why
she had been called into the office and did not understand why she was being asked about
dates and procedures.4 Union Shop Steward Sheryl told Johnson that the Union would file a
grievance.
5
On March 30, 2009 in the presence of shop steward Celia Morrison, Johnson was
handed a letter from Campbell headed “RE: TERMINATION OF EMPLOYMENT—FALSIFYING
RECORDS,” in pertinent part as follows:
On March 26, 2009, an investigation was conducted in regard to allegations that 10
you falsified patient records. The allegations consisted of a review of confirmation
calls to patients that you stated and documented you made on Friday, March 20,
2009.
Based on the investigation, it was found that you falsified the dates and actually 15
called the patients on March 23, 2009. Kaiser Permanente policies require that
you accurately record information into the patient record. Based on your failure
to do so, you placed patients at possible harm and risk.
Based on these findings, it has been decided to terminate your employment. 20
The record evidence is unclear regarding Step 1 of the grievance process. On April 8,
2009 the Union filed a Step 2 grievance for “Unjust cause for termination” and, in the form to the
employer entitled “Notice of SEIU Grievance Action,” requested from the Employer “Any and all
information used for termination: Names, Phones, Emails Etc.”25
The Step 2 grievance meeting was held on May 21, 2009. Union
Representative/Organizer Jacob Pridgen-Daniels represented Johnson at the meeting.
Johnson explained to the Employer’s HR personnel that Friday, March 20 had been a very busy
day; that Johnson was the only one answering the phone, making the appointments, and 30
making the confirmation calls that day; and that on Monday March 23 she continued making the
calls and unintentionally recorded the date of March 20 because as she continued making the
calls from the preceding Friday she saw that date at the top of her screen; and that no one ever
gets discharged for accidentally entering the wrong date. Pridgen-Daniels argued that Johnson
should be put back to work because she had merely made an unintentional mistake.35
During a subsequent phone call which Johnson initiated, Pridgen-Daniels advised her
that the Step 2 grievance had been denied and the grievance would have to be taken to Step 3.
The Step 3 grievance meeting was held on July 7, 2009 by video conference. Johnson, 40
Pridgen-Daniels, and Union Contract Specialist Kim Tinsley were present in a room at the
Employer’s premises, and the Employer’s representative, Senior Labor Relations Consultant
David Isaacs, was at a different location. Johnson related to Isaacs essentially the same
explanation she had made on her own behalf at the Step 2 grievance meeting. Upon completing
her explanation, Isaacs said, according to Johnson, “If what you’re telling me happened…it 45

4 In fact Johnson testified that she did not know what she had done until sometime prior to Step
2 of the grievance process when Pridgen-Daniels suggested to her that she simply must have
made a mistake. At that point the union presented this rationale to the employer, maintaining
that the incorrect entries Johnson made in the computer system were inadvertent and should
not have resulted in termination.
JD(SF)–27–14
6
seems like you just made a simple mistake and it seems like an open and shut case. I’ll talk to
your manager.”
On July 9, 2009 Isaacs sent the following letter, in pertinent part, to Pridgen-
Daniels:5
After reviewing the grievance file and discussion with Management I do
not find a violation of the collective bargaining agreement. The grievant
was terminated for falsifying patient records after she contacted patients
regarding their appointments on Monday, March 23, 2009, but10
documenting that the calls were made on Friday, March 20th. The
Grievant and Union stated that this was unintentional. What was not
explained during the Step III meeting is that not only does the grievant
remind the patients about their appointments, but also tells the patients
that they need to stop taking blood thinning medication prior to their visit. 15
This is the reason for the two (2) day notice requirement. Patients who fail
to stop taking their medication during this time period cannot be seen
during their scheduled appointment time and must be rescheduled. This
was a glaring omission of facts.
20
Based on the above, the Step III grievance is respectfully denied.
After attempting to call Contract Specialist Tinsley several times over a two-week
period, Johnson finally spoke with Tinsley and was told that her Step 3 grievance had
been denied. Johnson asked about arbitration as the next step, and Tinsley said the 25
case would be appealed to an arbitrator. Tinsley told her to look for another job and that
“ arb (sic) is so backed up…It’s going to be two to four years before you’re even called.”
Johnson had several subsequent and similar conversations with Tinsley, and at one
point Tinsley asked Johnson to send her a resume, apparently so that Tinsley could
attempt to assist Johnson in finding other employment.30
Johnson filed for unemployment compensation with California EDD. Her claim
was initially denied. Upon appeal, on about September 23, 2009 the administrative law
judge reversed the original determination and found that Johnson was entitled to
unemployment benefits. The ALJ determined that Johnson had made an “inadvertent 35
mistake by misidentifying the call date, that the conduct was “not willful or wanton in
character,” and that Johnson “was discharged for reasons other than misconduct
connected with her most recent work.”
Upon receiving this favorable decision Johnson again attempted to contact 40
Tinsley and after multiple attempts was finally able to speak with her. Johnson told her
she had won her unemployment case and asked whether Tinsley needed to see it and
Tinsley said no. Therefore Johnson did not send it to her.
On February 16, 2010 Johnson sent identical letters to two Union 45
representatives, La Tasha Winslow and Kim Tinsley, which contain Johnson’s then-
current address and phone number. The letters state:
My name is Angela Johnson and this letter is regarding my wrongful
termination from Kaiser Permanente’s Pain Management Clinic at South 50
Sacramento. I started my career with Kaiser 4/9/1999 and I was hastily
JD(SF)–27–14
7
and wrongfully terminated from Kaiser Permanente on 3/30/2009. My
case was denied at step 3 grievance in or about June or July 2009,
therefore I am requesting that my case be heard in arbitration as soon as
possible. Please contact me if you have any questions regarding the
logistics of this case.5
Thank you for your time and consideration.

In 2010 Johnson began supporting a rival union that was attempting to organize the
Employer’s employees. She complained about her unwarranted discharge and, along with two 10
other employees, was featured in a flyer dated April 23, 2010, that the rival union, National
Union of Healthcare Workers (NUHW) disseminated among the Employer’s employees.
Johnson’s name, job title and photo appear on the flyer, opposite the following message:
IGNORED. 15
After nearly 10 years at Kaiser South Sacramento I was terminated on
trumped up charges that could have been fought if I had had the right
representation from SEIU-UHW. SEIU-UHW did not file the grievance on
my behalf until nearly 2 months after I was terminated. SEIU-UHW’s
negligence is the reason I was denied unemployment benefits and I 20
had no means of an income for 6 months. The EDD appeals court
judge ruled against Kaiser’s position and I was finally granted my
unemployment benefits, but this was WITHOUT any help from the SEIU-
UHW. (Emphasis in original.)
25
Johnson began handing out the flyers in the parking lot of the Employer’s facility soon
after she was given them by Pravindra Singh, an employee who was one of the leaders of the
NUHW organizational movement. Johnson testified that Tinsley came up to her “really fast and
really angry,” and asked what Johnson was doing. According to Johnson, Tinsley “was like in
my face like maybe seven, eight inches away from me.” Johnson said she had a right to be30
there and hand out the flyers and Tinsley “kept cussing at me and trying to run me off the
property and looking like she wanted to fight me.” Tinsley looked at the flyer and said,
“Get your ass off this property and take this (sic) damn flyers with you…before I call the police.”
Johnson left to avoid further argument, but continued passing out the leaflets on the sidewalk
adjacent to the entrance of the parking lot. 35
By coincidence, Singh, a former chief steward of the Union who became active on behalf
of the rival NUHW, shared an office with Tinsley at the Employer’s facility. Singh testified that on
the fourth floor of the parking structure, as he and others were passing out the flyers, Contract
Specialist Tinsley and an HR representative approached them. The HR representative told 40
Singh that they could not be passing out the fliers in the parking structure, and “Tinsley echoed
everything” that the HR representative said. Singh testified they were “threatened” because the
HR representative said the police would be called, and Singh replied that they could go ahead
and call the police, as he and the other employees had a right to be distributing the flyers at that
location. Singh testified that Johnson was not with his group as she was in a different parking45
lot passing out fliers.
Singh testified that sometime after the flyer naming Johnson had been distributed he
had a conversation with Tinsley about it in their common office. Singh testified that he and
Tinsley critiqued each other’s fliers, “and had a kind of healthy but non-healthy relationship.” 50
Tinsley was critiquing the flier in question which, in addition to Johnson’s photo and article, also
JD(SF)–27–14
8
had photos and articles about two other individuals who were complaining about their wrongful
terminations and about the lack of adequate representation by the Union. Tinsley said,
according to Singh, “They ain’t never getting their job back,” and walked off.
Employee Shannon Scott, who also supported the NUHW, was present during this 5
interchange between Singh and Tinsley. Scott testified that Tinsley began talking about each of
the individuals named in the flyer, including Johnson. According to Scott, as a contract
specialist Tinsley would know about the cases of terminated employees “because that’s what a
contract specialist is supposed to know.” Tinsley knew the facts about the discharged
individuals and related to Scott and Singh what she knew and why the individuals had been 10
terminated; however Scott was unable to recall Tinsley’s comments about each one. As Tinsley
walked out the door she said, “They’re not going to get their jobs back or words to that effect.”
Kimberly Wilkes (formerly Tinsley and hereinafter referred to as Tinsley) is currently
chief steward. From June 2009 until December 2010 she served as a contract specialist. 15
Tinsley testified that she had been appointed contract specialist only shorty before Johnson’s
Step 3 grievance meeting on July 7, 2009 and that she attended the meeting solely as an
observer and did not participate. She did recall that at the meeting the Union Representative
Pridgen-Daniels made the argument on Johnson’s behalf that Johnson’s misdating of the
records was unintentional. Tinsley has had no involvement with Johnson’s grievance since that 20
date.
Tinsley denied that she had a confrontation with Johnson in the Employer’s parking lot
while Johnson was leafleting, and denies that Johnson ever attempted to hand her a flyer.
Tinsley was present, however, when a group of some 21 individuals were warned by an 25
employer representative that they should not be leafleting on the Employer’s premises; and
according to Tinsley, Johnson was among those individuals but Singh was not.
Tinsley testified that she had probably seen the April 23, 2010 flyer with Johnson’s
photo, as she had seen many flyers distributed by the NUHW during the election campaign; 30
moreover she did know those individuals named in the flyer. However, she denies any
conversation with Singh about the flyer or about Johnson, as during that period of time she did
not discuss union matters with Singh, who was supporting the rival NHUW.
Apparently, attempting to elicit Singh’s help or to give him further information to prepare 35
additional flyers, Johnson sent a lengthy email to him, entitled “termination testimony,” detailing
her efforts to receive satisfaction from the Union. The email, dated May 8, 2010, contains the
following:
I have made countless phone calls, sent certified letters, and sent email to SEIU, 40
especially to Kim Tinsley and Latasha Winslow-Beavers, inquiring about an
arbitration date. Every time I’ve asked about arbitration they’ve told me that they
don’t know when I would be able to set an arbitration date because it was so
backed up and that there’s absolutely no way they could give me a date. I was
told that I would get a letter in the mail…(sic) it’s still in the mail. Every time I’ve 45
talked to Kim Tinsley and asked her about setting an arbitration hearing she tells
me she has no date, wait for a letter in the mail and instead of receiving positive
affirmation or solutions, she always asks me if I am looking for another job and
that I should just find another job…
50
JD(SF)–27–14
9
Johnson did not find another job until August, 2010, and this required her to move out
of the area. Johnson called the union hall on various occasions to inquire about her position on
the arbitration list and her arbitration date, and was simply told not to worry about it and that her
name was on the arbitration list. While her testimony is unspecific on this point, Johnson made
about two such calls in 2011 and about two such calls in 2012. Johnson never received a letter 5
from the Union telling her that her arbitration had been withdrawn, infra.
In July, 2013, four years after her discharge, upon the advice of a different union
representative, Johnson went to the union hall to find out what was happening with her
arbitration as she had been told that it could take as long as four years for her case to come to 10
arbitration. She spoke to Field Representative Alex Martinez and another union representative,
Celia Morrison, who knew Johnson. Morrison said that Johnson’s name had previously been on
the arbitration list but was not currently on the list, and told Johnson that she too had asked
questions about the matter as she also wanted to know the reason for the deletion of Johnson’s
name from the arbitration list. Martinez went to look for her file, apparently believing that 15
something in the file would indicate why Johnson’s name was no longer on the arbitration list,
but was unable to locate the file. Martinez told Johnson that “a lot of things were happening in
2009 and that people took files.” He said he would look for it and call her when he found it or
that she should call him at the end of a week. The file was not found. Martinez suggested that
Johnson obtain her employment file from the Employer, apparently believing that there would be 20
information in the file regarding the grievance. Shortly thereafter Johnson did so, with the
assistance of union representative Morrison, but there was nothing in the file regarding the
status of her case.
As a result of the Union’s failure to advise her of the status of her case, Johnson filed the 25
instant charge on September 10, 2013, still not knowing that her case had been withdrawn,
infra.
Alejandro Martinez has worked for the Union for nearly five years and is currently a field
representative/organizer. Prior to his employment by the Union he worked for the Employer for 30
fourteen years, and during most of this time was a shop steward and chief steward. Upon
becoming a union representative he was assigned to different locations in California. He was
not assigned to South Sacramento, where the pain clinic at which Johnson worked is located,
until August 2011, over two years after Johnson’s discharge. Martinez testified he first met
Johnson when she came to the union hall in June or July 2013 inquiring about her grievance. 35
He had never spoken to her before that. Upon meeting with Johnson he searched for and
thereafter inquired about the Union’s file regarding her grievance. He was unable to locate it.
Martinez testified that on January 17, 2012 some six months prior to meeting with
Johnson, he had participated in an arbitration review process, along with Contract Specialist40
Jimmy Hardy, at that time the contract specialist for the Sacramento area including the pain
clinic, and Director of Representation Excellence Marcus Hatcher. These three individuals
reviewed a substantial number of grievance files that were pending arbitration at that time.
Among many other grievance files that were pending arbitration was the Union’s file for
Johnson’s grievance case.5 Martinez testified that he completed and placed the date January 45
17, 2012 on a form headed “Kaiser Arbitration Review.” Upon reviewing the file it was decided

5 Martinez was not asked whether in June or July 2013, when he first met and spoke with
Johnson, he recollected that he had participated as a member of the review panel for Johnson’s
grievance.
JD(SF)–27–14
10
that the grievance lacked merit and should be withdrawn. Kim Tinsley was not present and was
not at all involved in this review process.6
The file was not located until about a week prior to the opening of the hearing in the
instant matter during a meeting with the Union’s counsel in preparation for the hearing. At that 5
time the Union’s attorney asked Martinez where he kept his oldest cases. Martinez testified that
he began looking in a box of papers in the Union’s office and found the file, paper-clipped
together within a pile of other documents. It had not been filed in a file cabinet and was not in a
folder. These are the documents that Martinez and the other two representatives reviewed in
making the decision to withdraw Johnson’s arbitration. They reviewed a “substantial number” of 10
cases that were set only for South Sacramento arbitration.7
Prior to the review process on January 17, 2012 Martinez and the other two members of
the Union’s review panel knew nothing about Johnson’s case. They solely relied upon the
documents in the Union’s file. The file consists of the following: the March 30, 2009 discharge 15
letter from Assistant Department Manager Campbell to Johnson specifying that Johnson was
being terminated for falsifying patient records by falsifying the dates of confirmation calls; the
employer’s computer records documenting that on March 23, 2009 Johnson made numerous
confirmation calls that should have been made on March 20, and entered the date of March 20
on the Employer’s records; a document noting that one of Johnson’s responsibilities was to “Call 20
all patients up to 3 days in advance reminding them that if they are having a procedure then
they will need to stop their anticoagulants…” ; the various union forms entitled “Notice of SEIU
UHW Grievance Action”; the Employer’s Step 2 and Step 3 letters denying the grievance; and
two identical February 16, 2010 letters from Johnson to union representatives Tinsley and
Winslow, containing Johnson’s phone number and then-current address, in which Johnson 25
requested that her case be heard in arbitration as soon as possible and that she be contacted “if
you have any questions regarding the logistics of this case.”
Marcus Hatcher has been Director of Representation Excellence for the Respondent
since December 2011. He was the “inaugural one,” as prior to this time there was no such 30
position. He had had considerable prior experience with the Union and had been director of
representation for another SEIU local and, in this capacity, had represented workers in
arbitrations and served as the final person making recommendations regarding arbitration.
The program which Hatcher headed was adopted by the Union in the spring or summer 35
of 2011. Hatcher testified that the Kaiser unit represented by the Union was a statewide unit
consisting of some 45,000 members, and at that point a significant backlog of over 700 cases
pending arbitration had accumulated, primarily because an arbitrator who was authorized to
arbitrate these cases had passed away, and for a period of time a successor had not been
agreed upon. Accordingly it had been decided to review the merits of these cases and, using 40
the standard of whether the Union was likely to prevail in arbitration, to withdraw the cases that

6 I credit the entire testimony of Martinez who appeared to be a forthright witness. I find no
substance to the assertion of the General Counsel in his brief that this testimony of Martinez
was a complete fabrication and that in fact neither Martinez, Hatcher nor Hardy had reviewed
the documents prior to sending the withdrawal letter to Johnson as they did not even have the
documents until a week prior to the hearing in this matter.
7 I credit the testimony of Martinez who appeared to be a credible and forthright witness with a
refreshed recollection of the review process pertaining to Johnson upon examining the
aforementioned file documents.
JD(SF)–27–14
11
were deemed to be unwinnable, thus speeding up the arbitration process. Prior to this time
there had been no arbitration review process.
Hatcher designed the review process, and he was involved in the review of each case.
In the event that the review panel decided the case should be withdrawn a letter was sent to the 5
employee advising that the case had been reviewed with “input from member leadership and
staff, and knowledge of the interpretation of the applicable collective bargaining agreement,”
and that the employee could appeal this adverse determination to an impartial, member-based
appeal panel that would make the final decision. Moreover, if it was determined that there was
not enough information in the file to make an informed determination regarding the merits of the 10
grievance, then the next step would be to secure adequate information and continue the review
at a later time.
Hatcher testified that on January 17, 2012, along with Martinez and Hardy, he reviewed
all the documents in Johnson’s file. The final decision, however, was Hatcher’s to make. After 15
some discussion all three individuals agreed that Johnson’s case should be withdrawn. Hatcher
testified that he understood the Employer’s allegation against Johnson to be that she had
falsified the date on which she made confirmation calls to patients; that, according to the
documents in the file, there was no denial that she had entered the wrong date for a number of
such calls in the Employer’s database; that these were calls that should have been timely made; 20
and that “it seemed too big of a coincidence that they [the calls] were made exactly when they
were supposed to be made for the purpose of contacting the patient”; that "…it just seemed,
again, a far stretch that it was just an accident…and I didn’t think the grievant was credible.”
The recommendation was to withdraw the grievance, as Hatcher Martinez and Hardy did not
think the Union could prevail in arbitration. Hatcher testified that during the review of Johnson’s 25
grievance there was no discussion of Johnson’s NUHW activity. He also testified that
“falsification is almost always intentional. In an overwhelming majority of cases the penalty is
termination.” Asked, “Is it your testimony that you decided to withdraw this grievance because it
was your conclusion that Angela Johnson intentionally falsified those records,” Hatcher
answered, “Yes.”. 30
However, considering Johnson’s tenure with the Employer, Hatcher believed the Union
“could potentially secure a settlement for her in lieu of the arbitration process.” He attempted to
do this, working with the Employer’s HR representative, but was unsuccessful as the HR
representative was unwilling to settle. Accordingly, on March 7, 2012 the Union sent a letter to 35
Johnson’s address contained in the Union’s database, both by certified mail and regular mail, as
follows:
RE: NOTICE OF GREIVANCE WITHDRAWAL
40
Dear Mrs. Johnson,
This letter is to inform you that after careful consideration that included a
thorough review of the details of your case, input from member leadership and
staff, and knowledge of the interpretation of the applicable collective bargaining 45
agreement, SEIU UHW (“the Union”) does not believe that we are likely to prevail
in arbitration and subsequently do not intend to further pursue the above
referenced grievance to arbitration.
Therefore the Union’s decision is to withdraw the grievance. If you disagree with 50
this decision you may appeal it to the Regional UHW Appeal Panel. To do so,
JD(SF)–27–14
12
you must contact the Panel by either mailing a letter to Marcus Hatcher, or
sending an e-mail to …not later than ten (10) days from the date of this letter. If
we do not hear from you by this date, the Union will withdraw the grievance with
the employer.
5
Sincerely,
Marcus Hatcher
Representational Excellence Director
SEIU United Healthcare Worker’s -West10
The certified mail and regular mail letters sent to Johnson were returned to the Union on
March 14 and March 15, respectively. Both envelopes bear a post office stamp stating:
Return to sender15
Not deliverable as addressed
Unable to forward
Johnson has moved three times since her discharge
20
From March 2, 2012 to December 24, 2012 some 180 similar withdrawal letters were
sent by the Union to advise individuals on the arbitration list that their grievances were being
withdrawn absent their appeal of this determination.8
.
C. Analysis and Conclusions25
The complaint essentially alleges that although Johnson’s grievance was pending
arbitration and was initially on the arbitration list the Respondent failed and refused to bring
Johnson’s grievance to arbitration for discriminatory, arbitrary and perfunctory reasons, thereby
violating Section 8(b)(1)(A) of the Act.9 The complaint also alleges that “Since about May 2013, 30
and continuing to date, Respondent has failed and refused to inform the Charging Party about
the status of her grievance.”
There is no showing that any representative of the Respondent who had knowledge of
Johnson’s support of the rival NUHW played any part in the processing of her grievance at the 35
several steps in 2009 or during the subsequent review of her grievance in 2012.
After the Step 3 grievance had been denied on July 9, 2009, Tinsley told Johnson that
her case would be placed on the arbitration list and advised her to find another job because “arb
(sic) is so backed up…It’s going to be two to four years before you’re even called.” As noted, 40
Johnson had several subsequent and similar conversations with Tinsley, Thus, given the
arbitration backlog, Tinsley was giving Johnson sound advice.
It was not until April 23, 2010, some 9 months after the denial of the Step 3 grievance,
that Johnson’s photo and article appeared on the NUHW flyer. I find that Tinsley did make the 45

8 It appears that at some point this review process was discontinued, as Hatcher testified, “We
didn’t get an opportunity to review all 700 for a variety of reasons.”
9 The complaint does not allege any failure of the Union to fairly represent Johnson either during
the three-step grievance process, or during the time the grievance was pending arbitration, that
is, before the Union’s withdrawal of the grievance.
JD(SF)–27–14
13
statements attributed to her by Johnson and Singh and Scott. Rather than attempting to explain
the circumstances surrounding the conversations, or why she believed the grievances of the
employees featured in the flyer lacked merit, she simply denied that the conversations took
place. As a result of Tinsley’s uncredited denial of such statements it may be inferred that the
statements indicate some degree of animosity toward supporters of the NUHW. However, there 5
is no showing that during that period of time the Union was actively processing the grievance or
was doing anything other than waiting for the arbitration to be scheduled.
The union election was conducted by mail ballot in September and October of 2010.
The NUHW did not prevail and the Respondent remained the collective bargaining 10
representative of the Kaiser unit.
As noted, in mid-2011, while Johnson’s arbitration was pending, the Union determined
that something needed to be done about the some 700 pending arbitrations. To expedite the
arbitration process it was decided to establish an internal review procedure whereby each 15
grievance file would be reviewed and a determination would be made as to the merits of the
grievance. Those grievances that appeared meritorious and had a likelihood of being winnable
remained on the arbitration list, while the grievances which the Union believed would likely be
dismissed were to be withdrawn. However, to safeguard the interests of the latter group of
grievants an appeals procedure was established that provided them with the opportunity to 20
appeal the Union’s refusal to bring their grievance to arbitration.
Johnson’s file was reviewed on January 17, 2012, and it was decided to withdraw her
grievance and remove it from the arbitration list. The General Counsel contends that Johnson’s
file was woefully inadequate and incomplete, and the limited documents therein could not 25
reasonably provide the three reviewers with sufficient information to render a determination that
her grievance was non-meritorious.
Further, the General Counsel maintains that prior to the date of the review the failure of
Tinsley and other union representatives to undertake a thorough investigation of the matter and 30
to create an adequate file in 2009 and thereafter amounted to arbitrary and perfunctory conduct.
Thus, the union representatives failed to take statements from Johnson and other employees in
Johnson’s department; they failed to request and obtain sufficient information from the Employer
regarding the discharge; and they failed to obtain a copy of Johnson’s EDD award that Johnson
had offered to furnish Tinsley. Had they done so, the file would have contained sufficient 35
information so that when, in 2012, the review of Johnson’s arbitration case was undertaken by
the review panel, none of whom had any firsthand information regarding Johnson’s grievance,
these individuals could have made an informed decision regarding the merits of her case.
Having no information other than what the Union had obtained from the Employer in the file, and
solely relying on such information, the three union representatives necessarily made a 40
perfunctory administrative decision in an effort to simply reduce the Union’s arbitration backlog
without due regard for Johnson’s right to receive fair representation by the Union.
Johnson, the only union steward from her department, was also, insofar as the record
shows, the only person in the department who made confirmation calls to patients who were to 45
receive injections, and therefore the only person who would understand the relative importance
of such calls in conjunction with her other duties. There is no contention and no complaint
allegation that Johnson, with the assistance of the other union representatives, did not have the
opportunity to present her explanation regarding anything that she wanted to explain or to
present other evidence in her defense during the various grievance meetings.50
JD(SF)–27–14
14
Following the denial of the Step 3 grievance the matter was placed on the arbitration
list. There is no evidence that, given the two to four year waiting period for matters to come to
arbitration, the Union’s customary procedure was to thoroughly investigate the matter in the
interim and prepare a complete file in anticipation of arbitration some four years later. Although
there was a lengthy waiting period, it may be reasonably presumed that union representatives 5
who were involved in the presentation of Johnson’s grievance simply believed that nothing more
remained to be done by them, and that prior to the arbitration the union representative
responsible for bringing the matter before the arbitrator would confer with Johnson as the initial
source of all the information that was needed to counter the Employer’s evidence. In this
regard, insofar as the record shows, Johnson’s case was treated no differently than any of the 10
other hundreds of grievances pending arbitration. Further, at that time there was no arbitration
review process in effect; accordingly, there was no reason for the union representatives to
anticipate that the information contained in the Union’s file alone, without more, would be used
to determine the merits of Johnson’s grievance.
15
It was not until approximately two and one-half years later, in early 2012, that the Union
undertook to reduce the arbitration list in accordance with its newly instituted review process.
And as a necessary component of the review process the Union established an appeal
procedure to provide a safety-net for adversely effected employees to appeal an adverse
determination. Significantly, as noted, the complaint does not allege that the design or 20
implementation of the review process, in and of itself, constitutes an arbitrary, perfunctory or
otherwise unlawful abdication of the Union’s responsibility to fairly represent the unit employees.
The review panel was comprised of veteran union representatives with many years of
grievance and arbitration experience. The panel, headed by Hatcher,10 determined that no 25
further information was needed to render a determination regarding the merits of Johnson’s
grievance. Hatcher concluded that Johnson’s repeated entering of incorrect dates was too
coincidental to be inadvertent, that in fact Johnson had intentionally falsified documents as
maintained by the Employer, and that the Union was not likely to prevail in arbitration. The two
other members of the panel were in agreement with Hatcher’s conclusion.11 As a result the 30
withdrawal letter was sent. I do not find that Hatcher’s determination was perfunctory or arbitrary
or irrational. Even assuming arguendo that it was erroneous, as the General Counsel maintains,
there is no showing that it was not a considered judgment made in good faith and based on a
fair comprehension of the information in the file.
35
The General Counsel maintains that it was a patently erroneous determination and that if
Hatcher and the panel would have known that, according to Johnson, during the course of the
July 7, 2009 grievance hearing Senior Labor Relations Consultant David Isaacs agreed that
Johnson had simply made an inadvertent mistake, the panel would have discerned that Isaacs,
after “discussions with Management,” seized upon a different rationale in the Step 3 denial 40

10 I credit the entirety of Hatcher’s testimony. Hatcher appeared to be a credible witness with a
solid recollection of the of the Union’s file documents pertaining to Johnson’s grievance and a
forthright and convincing explanation underlying his determination that the Union would not be
likely to prevail in arbitration.
11 Contract Specialist Hardy did not testify in this proceeding. The General Counsel argues in
his brief that it should be presumed that Hardy was aware of Johnson’s 2010 dissident union
activity on behalf of the NUHW because he must have discussed such matters with Tinsley.
There is no record evidence to support this argument. Moreover, even if Hardy was aware of
Johnson’s dissident union activity, Hatcher’s testimony that Johnson’s grievance was withdrawn
because it lacked merit is persuasive and supported by the material Hatcher reviewed.
JD(SF)–27–14
15
letter by, in effect, finding that although the misdating was inadvertent, nevertheless failing to
make the calls in a timely fashion was a serious mistake that in and of itself warranted
discharge; in other words, Isaacs himself was impliedly admitting that Johnson’s misdating of
the records was not conduct warranting discharge. While the General Counsel’s argument is
creative, the clear import of Isaacs’ Step 3 denial letter is that, upon further review with 5
management, Isaacs reasoned that the omission of highly essential facts during the grievance
meeting enforced Campbell’s determination that the misdating was indeed deliberate in an
attempt to hide the fact that very important calls should have been timely made.
The General Counsel also argues that because of the serious implications resulting from 10
the Union’s Notice of Grievance Withdrawal letter, and upon return of the letters as
undeliverable from the post office, the Union should have searched the file for contact
information and taken other means to contact Johnson. Thus, as Johnson testified, her phone
number had not changed since her discharge, and she had included her phone number and
then-current address in the February 16, 2010 letter she sent to union representatives which15
letters were in the file reviewed by the review panel.
Hatcher testified that a combination of certified and regular mail was the means used to
communicate with employees to advise them that their grievances were being withdrawn and to
further advise them of the appeal process. In this regard, Johnson was not treated any 20
differently than any of the 180 employees who received similar letters.12 The record shows that
Johnson moved three times since her discharge. She knew or should have known that the
address the Union had on file was her address as of the time she was working for the Employer.
Moreover, as Johnson notes and emphasizes in her May 8, 2010 email to Singh, on each of the
various occasions when she inquired about her arbitration she was told by Tinsley that she 25
would receive a letter in the mail. Further, as Johnson abundantly testified, she believed that
she could not rely on communications with union representatives by phone, as they would not
return her phone calls; rather, she would have to be the one who initiated the call. Although she
maintains that she left forwarding addresses, it is not unreasonable to expect that if she was
anticipating an important letter from the Union she would not rely on forwarded mail but would 30
keep the Union apprised of her current address each time she moved. While, as noted, she
wrote a letter to union representatives in 2010 containing her phone number and then-current
address, this was not the address where she was living in 2012 when the Notice of Grievance
Withdrawal letter was sent to her. Moreover, union representatives Tinsley and Winslow, the
recipients of the letters, could not be charged with the responsibility of updating her address in 35
the Union’s database unless she specifically requested that they do so. Accordingly, I find that
the responsibility for having not received the Notice of Grievance Withdrawal letter lies with
Johnson and not the Union, as the Union was not acting in an arbitrary or perfunctory manner
by relying on the method it used to advise grievants of the withdrawal of their grievances.
Accordingly, I find that despite Johnson’s continued, futile and understandably frustrating 40
attempts over the years to learn the status of her arbitration, her failure to receive the Union‘s
withdrawal letter is directly attributable to her lack of due diligence in updating her address with
the Union.13

12 It appears, according to the General Counsel, that two of the some 180 individuals who were
sent such letters were sent subsequent letters following the return of the original letters. The
record does not note why this occurred.
13 The General Counsel maintains that the instant charge was timely filed as to this issue as
Johnson had never been advised and did not know that her grievance had been withdrawn. The
Union maintains that Johnson would have been timely advised of the withdrawal of her
grievance had she updated her address with the Union, and therefore the charge should be
JD(SF)–27–14
16
The General Counsel asserts in his brief, as an alternative theory, that the testimony of
Martinez and Hatcher relative to Johnson’s file is a complete fabrication, and that in fact neither
Martinez, Hatcher nor Hardy could have reviewed the file documents prior to sending the
withdrawal letter to Johnson because they did not even have the documents until a week prior 5
to the hearing in this matter; rather, they were just disposing of Johnson’s case in an arbitrary
and peremptory manner in order to reduce the arbitration backlog and/or because of Johnson’s
dissident union activity. In support of this argument the General Counsel argues that Martinez,
who searched for but was unable to find the file in July 2013 when Johnson inquired about the
matter at the union hall, speculated to Johnson that perhaps it had disappeared in 2009; further, 10
that after the instant charge was filed and throughout the investigation of this matter the file did
not materialize; and finally, that the file allegedly was not discovered until a week prior to the
hearing. As noted, I have credited the testimony of Hatcher and Martinez, and the misplacing of
the file and its recovery prior to the hearing does not seem to present, under the circumstances,
a particularly unusual or improbable scenario. I find no merit to this argument of the General 15
Counsel.
A union, as the employees’ exclusive bargaining agent, must represent all unit members
“without hostility or discrimination toward any, to exercise its discretion with complete good faith
and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). Further,20
“a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory
fashion…” Ibid, at 191. See also Roadway Express, Inc. 355 NLRB No. 23 (May 21, 2010).
In Air Line Pilots Assn. v. O’Neill, 499 U.S. 65, 67 (1991), the Court states:
25
We further hold that a union’s actions are arbitrary only if, in light of the
factual and legal landscape at the time of the union’s actions, the union’s
behavior is so far outside a “wide range of reasonableness” (citation
omitted) as to be irrational.
30
In San Francisco Web Pressmen & Platemakers Union (San Francisco Newspaper
Printing Co., Inc.), 249 NLRB 88, 89 (1980), the Board summarizes a union’s duty of fair
representation as follows:
35
Indeed, it has been recognized that negligent actions or inactions by a
union do not alone constitute a breach of the union's duty of fair
representation. (Citations Omitted) A union violates its duty of fair
representation to bargaining unit members when it "arbitrarily ignore[s] a
meritorious grievance or process[es] it in a perfunctory fashion." Vaca et 40
al. v. Sipes, 386 U.S. 171, 191 (1967). We have recently stated that
where, as here, a union undertakes to process a grievance, but decides
to abandon the grievance short of arbitration, the finding of a violation
turns on whether the union's disposition of the grievance was perfunctory

dismissed. As a result of Johnson’s failure to keep her address updated in the Union’s
database, I agree that the complaint should be dismissed on this basis. Cf. Leach Corporation,
312 NLRB 990, 992, fn. 8 (1993): (“Lack of clear and unequivocal knowledge…of the unfair
labor practices is not attributable to any lack of diligence…in seeking relevant information.”);
SEIU Local 3036 (Linden Maintenance), 280 NLRB 995 (1986): (insufficient constructive notice,
under the circumstances, to warrant dismissal under Section 10(b) of the Act).
JD(SF)–27–14
17
or motivated by ill will or other invidious considerations. Glass Bottle
Blowers Association of the United States and Canada, AFL-CIO, Local
No. 106 (Owens-Illinois, Inc.), 240 NLRB 324 (1979). … It is well settled
that so long as it exercises its discretion in good faith and with honesty of
purpose, a collective-bargaining representative is endowed with a wide 5
range of reasonableness in the performance of its duties for the unit it
represents. Mere negligence, poor judgment, or ineptitude in grievance
handling are insufficient to establish a breach of the duty of fair
representation.
10
As noted, there is no contention that the procedure established by the Union to review
the some 700 pending arbitration cases was unlawful under the foregoing standards. There is
no evidence that Johnson’s grievance, from the outset, was treated any differently than the
other grievances handled by the Union’s representatives, including Hatcher and the review
panel. And I have found that Hatcher, an experienced union representative, used his best 15
judgment in evaluating the file documents and arrived at the reasonable conclusion that
Johnson’s grievance lacked merit. Accordingly, I find that the Union did not exceed the “wide
range of reasonableness” that it is permitted in representing bargaining unit members.
Moreover, I find it was not unreasonable or irrational for the Union, particularly given the size of
the collective bargaining unit and the large number of grievances pending on the arbitration list 20
and being evaluated for merit, to rely upon Johnson’s address in the Union’s database to advise
her of the withdrawal of her grievance and the appeal process. I shall dismiss this allegation of
the complaint.
The complaint also alleges that “Since about May 2013, and continuing to date, 25
Respondent has failed and refused to inform the Charging Party about the status of her
grievance.” The individual who should have informed Johnson of the status of her grievance
was, according to the General Counsel, Union Representative Martinez who, on July 11, 2013
advised Johnson that he did not know the status of her grievance. Martinez was unsuccessful in
locating her file and within a short time suggested she could obtain the Employer’s file directly 30
from the Employer. Johnson, with the assistance of union representative Morrison did so.
Having heard nothing further from Martinez, Johnson could have readily surmised that Martinez
had no further information to give her about the matter. Insofar as the record shows, this was
indeed the case.
35
Given this sequence of events, I find the evidence is insufficient to show that Martinez
willfully misinformed Johnson about her grievance or willfully kept her uninformed about her
grievance. While he may have been remiss, or negligent, or forgetful or preoccupied with other
matters, there is no evidence indicating that his failure to advise Johnson that her grievance had
been withdrawn over a year earlier was motivated by an intent to deceive. Cf. American Postal 40
Workers Union, 328 NLRB 281, 282 (1999); Union of Security Personnel (Church Charity
Foundation), 267 NLRB 974, 980 (1983). Accordingly, I shall dismiss this allegation of the
complaint.
On the basis of the foregoing, I shall recommend that the complaint be dismissed in its45
entirety.
50
JD(SF)–27–14
18
Conclusions of Law
1. The Employer is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act, and a health care institution within the meaning of Section
2(14) of the Act. 5
2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged in the complaint.
10
On these findings of fact and conclusions of law, I issue the following recommended:
ORDER14
The complaint is dismissed in its entirety.15
Dated: Washington, D.C. June 12, 2014
20
_____________________
Gerald A. Wacknov
Administrative Law Judge25

14 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.