Service Employees Local 1

National Labor Relations Board - Board Decisions

Jul 13, 2005

344 N.L.R.B. 1104 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 135
1104
Service Employees International Union, Local 1,
AFL–CIO and Remzi Jaos. Case 13–CA–41636
July 13, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The single issue presented in this proceeding is
whether the Respondent, Service Employees Interna-
tional Union, Local 1, AFL–CIO (the Union), violated
Section 8(a)(1) of the National Labor Relations Act (the
Act) by discharging its employee, business representative
Remzi Jaos, for complaining about and seeking change
in the Union’s newly-implemented system for assigning
work to its business representatives. The judge found
that the Union’s action did not violate Section 8(a)(1).
For the reasons discussed below, we disagree.1
I. FACTUAL BACKGROUND
The Union hired Remzi Jaos in 1996 as a business rep-
resentative. At the time, the Union assigned each busi-
ness representative to perform a wide variety of represen-
tational duties within a specific geographic area. The
Union assigned Jaos to represent members employed in
residential apartment buildings and condominiums in
certain Chicago neighborhoods. Jaos’ duties included
organizing employees, collecting dues, negotiating con-
tracts, handling grievances, visiting members’ places of
employment, and educating members on political issues.
Jaos successfully carried out his duties for the next 7
years.
In October 2003,2 the Union implemented a new sys-
tem for servicing its increasing membership. The new
system required each business representative to focus on
a particular task rather than a geographic area. This dra-
matically changed the business representatives’ job re-
sponsibilities. Under the new system, the business repre-
sentatives were assigned to one of the following: (1) a
telephone center fielding calls from members covering
the Union’s entire jurisdiction; (2) another telephone
center solely responsible for processing grievances re-

1 On December 28, 2004, Administrative Law Judge Arthur J. Am-
chan issued the attached decision. The General Counsel filed excep-
tions and a supporting brief, and the Union filed an answering brief.
The Union filed cross-exceptions and a supporting brief, and the Gen-
eral Counsel filed a brief in reply to the Union’s answering brief and in
answer to the Union’s cross-exceptions. The Union filed a revised
reply brief.
The National Labor Relations Board has considered the decision and
the record in light of the exceptions, cross-exceptions, and briefs and
has decided to affirm the judge’s rulings, findings, and conclusions
only to the extent consistent with this Decision and Order.
2 All dates hereafter are in 2003.
ferred to it from the main call center; or (3) a field center
responsible for visiting members, collecting dues, orga-
nizing, and political education. Jaos was assigned to the
grievance call-in center, where his primary responsibility
was handling grievances arising throughout the Union’s
jurisdiction. Jaos was dissatisfied with the significant
change in his job duties resulting from the new system,
but he did not do anything to undermine or interfere with
the system’s implementation.
However, Jaos actively discussed his concerns with his
fellow business representatives. Many of the business
representatives shared Jaos’ concerns, and also expressed
their own complaints regarding the new system, which
included confusion about new procedures, insufficient
time to complete tasks, and receipt of complaints from
members. Jaos suggested that they meet with Union
President Thomas Balanoff to discuss their concerns.
Several of the business representatives expressed reluc-
tance to meet with President Balanoff, however, for fear
of losing their jobs.3
On October 13, Jaos alone met with Balanoff and the
Union’s secretary-treasurer, Chris Andersen. Jaos ad-
vised them that he was receiving complaints from mem-
bers regarding the new system, and that the business rep-
resentatives needed further training on the new system.
Balanoff and Anderson agreed with Jaos’ suggestion
regarding additional training.
Jaos again met with Balanoff on November 11. Jaos
recommended that the Union return to its previous sys-
tem for servicing members. He also suggested that a
meeting be held with all the business representatives to
discuss the new system, and that the representatives
should have been allowed to vote on the new system.4
Balanoff thereafter learned that Jaos had criticized the
Union’s new system in conversations with Kenneth
Munz, Balanoff’s special assistant, and Mona Ballinger,
the head of the Union’s security division. Jaos had told
them that he believed Balanoff’s motive for implement-
ing the new system was to have the business representa-
tives collect increased political education contributions.5
The Union discharged Jaos on November 17. In a
formal discharge letter, the Union cited the fact that Jaos
had “taken several opportunities” to express to Balanoff
and other union officials his “concern and dissatisfaction
with the new system.” The discharge letter observed that

3 Jaos also discussed these issues with Laura Garza, a supervisor for
the business representatives. Garza encouraged Jaos to meet with
President Balanoff.
4 Prior to this meeting, Jaos had entered an elevator with Balanoff,
who criticized the way Jaos had answered questions about the new
system in a meeting with employers.
5 The Union maintained a political action committee for which it
sought contributions.
SERVICE EMPLOYEES LOCAL 1 1105
Jaos opposed the new system. The letter further noted
that the new system had been approved by the Union’s
executive board, and that the Board was not willing to
reverse its decision. The discharge letter concluded by
accusing Jaos of refusing to assist in the implementation
of the new system and by charging him with “disloyalty
and insubordination” warranting termination.
II. THE JUDGE’S DECISION
The judge found that the Union lawfully discharged
Jaos under the balancing test articulated in Operating
Engineers Local 370, 341 NLRB 822 (2004). In Operat-
ing Engineers Local 370, the Board held that, where a
union-employer discharges a paid employee in a key
position for activity that is critical of the union but also
protected by Section 7, the employee’s right to engage in
such activity must be balanced against the union’s le-
gitimate interest in ensuring loyalty, support, and coop-
eration. 341 NLRB at 824-825.
In the present case, the judge found that Jaos’ activity
regarding the new assignment system was protected by
Section 7, and that the Union discharged Jaos because of
his protected activity.6 The judge nevertheless deter-
mined that Jaos’ discharge did not violate the Act be-
cause the Union’s legitimate countervailing interest in
administering its affairs in the manner it deemed most
effective outweighed Jaos’ Section 7 rights.
III. DISCUSSION
Although we agree with the judge that the Operating
Engineers Local 370 balancing framework applies here,
we find, contrary to the judge, that the balance favors
Jaos’ Section 7 interest over the Union’s interest. We
therefore find that the Union violated Section 8(a)(1) as
alleged, and we shall provide an appropriate remedy.
A. The Framework: Operating Engineers Local 370
In Operating Engineers Local 370, the Board ex-
plained that two distinct questions are presented when a
union-employer discharges a key paid employee, such as
an organizer or business representative, for criticizing the
union’s policies. The first question is whether the em-
ployee engaged in concerted activity that is protected
from employer interference by Sections 7 and 8(a)(1) of
the Act. If so, the second question is whether the union
has a legitimate countervailing interest that outweighs

6 The judge cited, among other things, the terms of the discharge let-
ter and Balanoff’s testimony that Jaos’ criticism of the Union’s motive
for instituting the new system precipitated his discharge. The judge
additionally found that the Union failed to show that it would have
discharged Jaos absent his protected activity, rejecting the Union’s
contention that Jaos failed to fulfill his duties under the new system.
The judge found no evidence “that Jaos did anything to undermine or
interfere with the implementation of the new call center system.”
the employee’s exercise of his Section 7 rights. As the
Board made clear in Operating Engineers Local 370,
where to appropriately strike the balance between these
competing interests depends on the “particular context”
of each case. 341 NLRB 822, 825.
In the particular circumstances presented in Operating
Engineers Local 370, the Board struck that balance in the
union’s favor. The Board found that the union lawfully
discharged one of its organizers, Melvin Thoreson, for
relentlessly criticizing to union members and appren-
tices, the union’s policy of relieving employers of their
obligation to make pension fund contributions on behalf
of probationary apprentices.7
The Board assumed, without deciding, that Thoreson
had a cognizable Section 7 interest in complaining about
the union’s policy.8 However, the Board observed that
Thoreson’s “arguable” Section 7 interest was not sub-
stantial because the contribution waiver did not impact
his own working conditions as an employee of the union.
Id., 825. At the same time, the Board found that the un-
ion had a “strong legitimate interest” in having its em-
ployees support the contribution waiver policy, which
was designed to increase the number of apprentices and
union members. Id. In these circumstances, and with
particular mention of the extensiveness of Thoreson’s
criticism of the union’s policy, the Board concluded that
any arguable Section 7 interest belonging to Thoreson
was outweighed by the union’s strong legitimate interest
in ensuring that its employees loyally supported its poli-
cies. Id. Accordingly, the Board held that the union’s
discharge of Thoreson did not violate the Act.
B. Jaos’ Section 7 Interests Outweigh the Union’s Inter-
ests in the Circumstances Presented Here
Contrary to the judge, we find that the particular cir-
cumstances here lead to a different result from that
reached in Operating Engineers Local 370. Initially, we
affirm the judge’s finding that Jaos engaged in Section 7
activity. As described, the Union’s new system for rep-
resenting members dramatically changed the business
representatives’ daily job functions. Jaos’ attempt to
initiate or induce group action among his coworkers to
confront the Union (their employer) about their shared

7 See 341 NLRB at 825 (organizer Thoreson “persistently criticized”
union policy when teaching courses to apprentices and to members at
union meetings; his “uncooperative behavior reached a crescendo” at a
union meeting where he profanely “launched additional attacks” on the
union policy).
8 The Board observed that, to the extent that Thoreson’s conduct
“might be described as making common cause, as an employee, with
the apprentices, his efforts were not directed toward the apprentices’
employers, but toward the policies of their bargaining representative,
which happened to be his employer.” Operating Engineers Local 370,
supra, slip op. at 4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
concerns over the changes clearly constituted concerted
activity protected by Section 7 of the Act.9 Likewise,
Jaos engaged in Section 7 activity when he subsequently
raised these shared concerns with Union President
Balanoff10 in an effort to have the Union reconsider the
new system.11
In determining whether Jaos’ Section 7 interest was
outweighed by the Union’s interest, we regard two con-
siderations to be particularly significant. First, Jaos’ Sec-
tion 7 interest was more compelling than Thoreson’s
“arguable” Section 7 interest in Operating Engineers
Local 370. Jaos engaged in classic protected concerted
activity: he attempted to band together with his cowork-
ers to improve their daily working conditions. In con-
trast, Thoreson insisted on a change in the union’s collec-
tive-bargaining policy that had no impact on Thoreson’s
and his fellow organizers’ working conditions.12 Al-
though Thoreson’s activity was arguably protected by
Section 7, we find that Jaos’ bedrock Section 7 activity
merits greater weight in the Operating Engineers Local
370 balancing analysis.
Second, while the Union has a legitimate interest in as-
suring its business representatives’ loyal support of its
policies, Jaos’ activity was much less likely, compared to
Thoreson’s activity, to impair this interest. As described,
even though Jaos complained about the Union’s new
system, the judge specifically found no evidence that
“Jaos did anything to undermine or interfere with [its]
implementation.” The record fully supports the judge’s
finding. Thus, Jaos’ efforts to have the Union reconsider
the system were limited to in-house discussions with his
fellow business representatives and with union officials.
In contrast, Thoreson repeatedly aired his criticism of the
union’s contribution waiver policy during union mem-
bership meetings. As the Operating Engineers Local

9 See, e.g., Meyers Industries, 281 NLRB 882, 887 (1986) (con-
certed activity encompasses circumstances where individual employees
seek to initiate or induce or prepare for group action), enfd. sub nom.
Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S.
1205 (1988); Whittaker Corp., 289 NLRB 933 (1988) (same).
10 The record fully supports the judge’s finding that Union President
Balanoff knew of the concerted nature of Jaos’ complaints.
11 See Meyers Industries, supra, 281 NLRB at 887 (that an em-
ployee’s action inures to the benefit of all is proof that the action comes
within the “mutual aid or protection” clause of Sec. 7), citing NLRB v.
City Disposal Systems, 465 U.S. 822 (1984).
12 Indeed, in Finnegan v. Leu, 456 U.S. 431 (1982), the Supreme
Court case upon which the Board relied in Operating Engineers Local
370, the Court stressed the importance of elected union officials secur-
ing the loyalty of their employees regarding policies that affect the
membership. Accordingly, our accordance of more weight to the un-
ion’s interest in Operating Engineers Local 370, than the Union’s in-
terest here, based on the closeness of the issue to the members’ interest
versus the employees’ interest is consistent with the foundation upon
which the Operating Engineers Local 370 principle is based.
370 judge correctly recognized, a union’s “customers are
its members,” and, during these meetings, Thoreson “was
telling [them] that its leadership was doing a bad job of
providing employee representation.” 341 NLRB at 830.
Plainly, as compared to Thoreson’s broadly-disseminated
complaints in Operating Engineers Local 370, Jaos’ cir-
cumscribed activity was less likely to undermine the Un-
ion’s legitimate interest.13 As a result, we find that the
Union’s interest commands less weight in the balancing
required by Operating Engineers Local 370.
These circumstances lead us to conclude that the bal-
ance of interests favors Business Representative Remzi
Jaos. We find that his strong Section 7 interest in pro-
testing his and his colleagues’ working conditions was
not outweighed by the Union’s legitimate interest in the
cooperation of its employees with its policies. Accord-
ingly, we find that the Union violated Section 8(a)(1) of
the Act by discharging Jaos because of his Section 7 ac-
tivity.14
ORDER
The National Labor Relations Board orders that the
Respondent, Service Employees International Union,
Local 1, AFL–CIO, Chicago, Illinois, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Discharging or otherwise disciplining employees
because they concertedly complained about their wages,
hours, and working conditions by requesting changes to
the manner in which work assignments are made to em-
ployees.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Remzi Jaos full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
(b) Make Remzi Jaos whole for any loss of earnings
and other benefits suffered as a result of the discrimina-

13 The Union asserts that Jaos, in a meeting introducing the new sys-
tem to employers, contradicted his supervisor’s description of a proce-
dure involving the new call center. Jaos denied this allegation at the
hearing. In any event, even assuming this single incident occurred, we
find that it simply does not compare to Thoreson’s wide-ranging criti-
cisms of union policy in Operating Engineers Local 370.
14 The record supports the judge’s finding that the Union failed to
show that it would have discharged Jaos absent his protected activity.
The Union failed to produce evidence that Jaos engaged in any con-
duct—other than his protected concerted complaints about the new
assignment system—for which it would have discharged him.
SERVICE EMPLOYEES LOCAL 1 1107
tion against him. Backpay shall be computed in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Remzi Jaos, and within 3 days thereafter notify him in
writing that this has been done and that the discharge will
not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its office in Chicago, Illinois, copies of the attached no-
tice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, it shall duplicate and mail,
at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since November 17, 2003.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT discharge or otherwise discipline you
because you concertedly complained about your wages,
hours, and working conditions by requesting changes to
the manner in which your work assignments are made.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Remzi Jaos full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Remzi Jaos whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful discharge of Remzi Jaos, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the discharge will not be used against him in any
way.
SERVICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 1, AFL–CIO
Denise R. Jackson-Riley, Esq., for the General Counsel.
Marvin Gittler, Esq. (Asher, Gittler, Greenfield & D’Alba,
Ltd.), of Chicago, Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Chicago, Illinois, on October 20, 2004. Remzi Jaos
filed a charge on January 20, 2004, alleging that Respondent,
the Service Employees International Union (SEIU), Local 1,
engaged in an unfair labor practice by terminating his employ-
ment as a business representative/organizer on November 17,
2003. Based on this charge, the General Counsel issued a com-
plaint on March 4, 2004, alleging that Respondent violated
Section 8(a)(1) of the Act by discharging Jaos for concertedly
complaining to Respondent about the working conditions of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1108
Respondent’s employees and requesting changes to the manner
in which work assignments were being made.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an unincorporated association, is a labor organi-
zation, and represents approximately 40,000 employees, includ-
ing janitors, building engineers, doormen and security guards,
in collective bargaining. Its principal office is in Chicago, Illi-
nois. During 2003 and 2004 Respondent collected dues and/or
initiation fees in excess of $50,000 from its members and remit-
ted in excess of $50,000 of dues and/or initiation fees from its
Chicago office to the international union in Washington, D.C.
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Remzi Jaos, a member of SEIU Local 1, was hired by the
Union in 1996 as a business representative/organizer. Until
October 2003, his job entailed representing SEIU members
employed in residential apartments and condominiums. In do-
ing so, Jaos performed a variety of tasks including organizing,
political education, grievance handling, visiting members at
their place of employment, collecting dues and initiation fees
and negotiating contracts. He performed his tasks within a spe-
cific geographic area of Chicago to which he was assigned.
In October 2002, Union President Thomas Balanoff ap-
pointed a committee to study the Union’s method of servicing
its members. In October 2003, the Union implemented the
committee’s recommendations, which called for the centraliza-
tion of certain functions in a call center and a much more spe-
cialized role for its business representatives. Under the new
system, five business representatives were assigned to the call
center, which was to receive all telephone calls from members
and employers throughout the Union’s jurisdiction, which cov-
ers the Chicago metropolitan area, St. Louis, Kansas City, and
the State of Wisconsin. This call center disposes of 65 percent
of the incoming calls and refers the other 35 percent to a griev-
ance center staffed by eight business representatives. These
representatives’ sole responsibility is the processing of griev-
ances. Another 15 business representatives were assigned to a
field center. The tasks of the field center representatives include
organizing, dues collection, member visits, and political educa-
tion.
The Union assigned Remzi Jaos to the grievance center. Jaos
was not happy with the change in the scope of his responsibil-
ity. Jaos, the General Counsel’s only witness, testified that he
discussed his concerns about the new system with a number of
other employees and suggested to some that they meet with the
Union’s president, Thomas Balanoff, to discuss these concerns.
Since this testimony is uncontradicted, I credit it.
Jaos told Business Representative Anton Farby that he was
getting a lot of complaints about the new system. Farby replied
that he was getting a lot of complaints also and that he didn’t
think the new system was working well. Farby also commented
that he was confused as to what he was supposed to do regard-
ing completing field assignments received before the change
and processing new grievances.
In a second conversation, Farby agreed with Jaos that they
should meet with Union President Tom Balanoff about the new
call center system. Farby and Jaos agreed that the new system
was very “labor intensive” and that there was insufficient time
for the representatives to type closure letters for each of the
grievances referred to them. Another business representative,
Ted Williams, indicated agreement.
Business Representative Lionel Saffold, who had been on the
committee which had recommended the new centralized sys-
tem, complained to Jaos about the difficulty in handling new
calls and following up on old grievances in the field. When
Jaos suggested they meet with Balanoff and the Union’s secre-
tary-treasurer, Chris Andersen, Saffold declined, saying that he
didn’t want to lose his job.
Representatives Dariuz Kozinski and Robert Pawlaszek also
discussed the new system with Jaos and complained about it.
However, when Jaos suggested they take their complaints to
Balanoff, both were unwilling to do so. Pawlaszek also told
Jaos he was afraid of losing his job.
Jaos also discussed his unhappiness with the new system
with Rick Owsiany, the head of the new grievance center and
Laura Garza, the supervisor of the representatives for industrial
janitors. Garza indicated agreement with his criticisms of the
system and encouraged Jaos to set up a meeting with Balanoff.
Additionally, Jaos told Kenneth Munz, an assistant to Union
President Balanoff, that he was getting complaints from mem-
bers regarding the system and suggested a meeting with Balan-
off. Jaos met with Balanoff and Andersen on October 13, and
told them that he was getting complaints about the new system
from members and that further training was needed for some of
the representatives. Balanoff and Andersen agreed with Jaos’
suggestions regarding training.
On November 11, 2003, as he arrived at work, Jaos entered
an elevator with Balanoff. According to Jaos, Balanoff criti-
cized Jaos and his immediate supervisor, Carl Riconi, for their
handling of a question about the call center at a meeting with
representatives of ABOMA, an association of residential apart-
ment employers. Balanoff testified he chastised Jaos for contra-
dicting Riconi in front of the ABOMA representatives.1
Jaos called Balanoff’s secretary and set up a meeting in the
latter’s office 2 hours later. At this meeting, Jaos recommended
to Balanoff that the Union go back to its previous system or
something close to it. He asked that representatives be assigned
to a specific geographic area in which they would perform a
variety of functions. Jaos testified that he suggested a meeting
with all the business representatives to discuss the new system
and that Balanoff agreed.
Balanoff testified that at first Jaos asserted that a number of
union members had problems with the new system. However,
according to Balanoff, when he asked Jaos for the names of
such members, Jaos said that it was building managers who
were critical of the system. However, Balanoff also testified

1 Jaos denies contradicting Riconi.
SERVICE EMPLOYEES LOCAL 1 1109
that Jaos told him that Balanoff should have let the business
representatives vote on the new system. Balanoff testified that
he replied by noting that the new system been approved by the
Union’s executive board, which was elected by the member-
ship.
Six days later, on November 17, 2003, Balanoff summoned
Jaos to his office and handed him a termination letter (GC Exh.
3). Jaos’ termination letter stated:
You have taken several opportunities to express to me
and other officers your concern and dissatisfaction with
the new system. Your complaints and suggestions were
noted, but not accepted.
On November 11th you and I met at your request
wherein you raised complaints about the program, insisted
the previous system was effective, and proposed a change
that for all intents and purposes would dismantle the reor-
ganization.
At that point, I explained to you the reasons why the
executive board adopted this very important program to
service Local 1 members, and that the executive board is
not willing to reverse the reorganization that is in place. It
is apparent you are having great difficulty working within
the new system and that you oppose it.
Your unwillingness to assist in the implementation of
our program is clearly designed to undermine our efforts
to properly serve the members, and is further designed to
reverse the executive board’s decision to reorganize and
restructure the way the union provides services to its mem-
bers.
Your refusal to participate and assist in the efficient
implementation of this program interferes with our efforts
to develop innovative and important member service pro-
grams, and constitutes disloyalty and insubordination.
These actions cannot be tolerated and your continued
employment is contrary to the interests of our union.
Effective immediately, your employment with SEIU
Local 1 is terminated.
Balanoff testified that between his November 11 meeting
with Jaos and presenting the termination letter to Jaos on No-
vember 17, he learned that Jaos had criticized the new call cen-
ter in conversations with Mona Ballinger, the head of Respon-
dent’s security division, and Balanoff’s special assistant, Ken-
neth Munz. Balanoff was told that Jaos, “basically, trashed the
system, said it was only about Tom Balanoff wanting people,
. . . reps to go out and collect COPE [political education]
money” (Tr. 230).
Balanoff further testified that learning of these conversations
“reinforced my distrust, at this point, in Mr. Jaos’ continuing to
work in this system (Tr. 231).” I infer from this testimony that
when Balanoff learned that Jaos was telling people in the Union
that Balanoff instituted the new call center system primarily, if
not exclusively, to increase contributions to COPE, that this
information precipitated Balanoff’s decision to terminate Jaos.
There is no credible evidence that Jaos did anything to un-
dermine or interfere with the implementation of the new call
center system other than complain about it, question the moti-
vation for its implementation and attempt to gain the support of
other business representatives in seeking to have the Union’s
management reverse course.
Analysis
For the reasons that follow, I conclude that Respondent ter-
minated Remzi Jaos for engaging in concerted activity that is
generally protected by the Act. However, I also conclude that
Respondent did not violate Section 8(a)(1) because its legiti-
mate countervailing interests outweigh Jaos’ Section 7 rights.
In order to prove a violation of Section 8(a)(3) or (1), the
General Counsel must establish that union activity or other
protected activity has been a substantial factor in the em-
ployer’s adverse personnel decision. To establish discrimina-
tory motivation, the General Counsel generally must show un-
ion or protected concerted activity, employer knowledge of that
activity, animus or hostility towards that activity and an adverse
personnel action caused by such animus or hostility. Inferences
of knowledge, animus and discriminatory motivation may be
drawn from circumstantial evidence as well from direct evi-
dence.2 Once the General Counsel has made an initial showing
of discrimination, the burden of persuasion shifts to the em-
ployer to prove its affirmative defense that it would have taken
the same action even if the employee had not engaged in pro-
tected activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (lst Cir. 1981); Gary Enterprises, 300 NLRB 1111
(1990).
Section 8(a)(1) provides that it is an unfair labor practice to
interfere with, restrain or coerce employees in the exercise of
the rights guaranteed in Section 7. Section 7 provides that,
“employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection . . . (emphasis added).”
In Meyers Industries (Meyers I), 268 NLRB 493 (1984), and
in Meyers Industries (Meyers II), 281 NLRB 882 (1986), the
Board held that “concerted activities” protected by Section 7
are those “engaged in with or on the authority of other employ-
ees, and not solely by and on behalf of the employee himself.”
However, the activities of a single employee in enlisting the
support of fellow employees in mutual aid and protection is as
much concerted activity as is ordinary group activity. Individ-
ual action is concerted so long as it is engaged in with the ob-
ject of initiating or inducing group action, Whittaker Corp., 289
NLRB 933 (1988); Mushroom Transportation Co., 330 F.2d
683, 685 (3d Cir. 1964). The fact that an employee is unsuc-
cessful in persuading fellow employees to protest their wages,
hours or working conditions is immaterial in assessing whether
an appeal to coworkers is “concerted,” El Gran Combo, 284
NLRB 1115, 1117 (1987).
In the absence of any contrary evidence, I credit Jaos’ testi-
mony that he spoke to several coworkers in order to persuade
them to meet with Union President Balanoff with the object of
at least modifying their working conditions in the new call

2 Flowers Baking Co., 240 NLRB 870, 871 (1979); Washington
Nursing Home, Inc., 321 NLRB 366, 375 (1966); W. F. Bolin Co. v.
NLRB, 70 F. 3d 863 (6th Cir. 1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110
center system. Thus, I find that Jaos engaged in protected con-
certed activity.
Nevertheless, Respondent argues at page 27 of its brief, Jaos
conduct was not protected because his activities were not seek-
ing “mutual aid or protection,” citing the recent Board decision
in Holding Press, Inc., 343 NLRB No. 45 (2004). I conclude
otherwise. Unlike Holding Press, other employees expressed
reservations about the call center system in their discussions
with Jaos. Moreover, Joas’ uncontradicted testimony estab-
lishes that he sought to initiate group action to address these
reservations with union management.
Additionally, the Board held in Amelio’s, 301 NLRB 182
(1991), that in order to present a prima facie case that an em-
ployer has discharged an employee in violation of Section
8(a)(1), the General Counsel must establish that the employer
knew of the concerted nature of the activity. Based on Jaos’
testimony that, on November 11, he suggested that Balanoff
meet with the business representatives and Balanoff’s testi-
mony (Tr. 228–230) that Jaos stated that Balanoff should have
let the Union’s staff vote on the new system before implement-
ing it, I find that Respondent was aware of the concerted nature
of Jaos’ complaints, and the fact that Jaos sought to address
concerns of business representatives other than himself.
I find that Respondent terminated Remzi Jaos for his persis-
tent complaints and criticism of the new call center system, his
lobbying for a return to the old system, his activities to enlist
other union employees in this effort and rendering his opinion
as to Balanoff’s motives for implementing the new system.
Although Respondent introduced evidence regarding two in-
stances in which Jaos was counseled for failing to call members
back in a timely manner, it did not rely on any alleged miscon-
duct in terminating Jaos. Respondent also alleged that Jaos
contradicted his supervisor in front of employer representatives.
It also suggests, based on his casual remark to Ken Munz that
members didn’t know about the new system (Tr. 195), that Jaos
was less than diligent in distributing flyers that informed union
members about the call center. Respondent did not specifically
mention these factors in its termination letter and I conclude
that, even if Respondent had a good-faith belief regarding these
matters, they did not contribute to the termination decision.
I credit Thomas Balanoff’s testimony at transcript pages
230–231 and conclude that the decision to terminate Jaos was
precipitated by Balanoff’s learning, between November 11, and
17, 2003, that Jaos told Munz and Ballinger that Balanoff’s sole
motive for instituting the call center was to increase political
contributions. Although other representatives made general
complaints about the new system, there is no evidence that
anyone but Jaos voiced his opinion concerning the heightened
emphasis on COPE, or that Jaos made such an assertion in dis-
cussions with other union employees.
I conclude that the General Counsel has established that Re-
spondent terminated Jaos at least in part for protected concerted
activity. Assuming that Jaos’ statements to Munz and Ballinger
regarding Balanoff’s motives can be distinguished from his
protected activities, Respondent has not shown that it would
have terminated Jaos even if he had not engaged in protected
activity. Moreover, nothing that Jaos did or said in trying to get
the Union to scrap the call center system forfeited his protec-
tion under the Act. More specifically, Jaos’ remarks which
questioned Balanoff’s motives for instituting the new call cen-
ter system were not sufficiently flagrant, violent or extreme as
to negate their protected nature, Dreis & Krump Mfg., 221
NLRB 309, 315 (1975). Outside the context of a labor organi-
zation, I would analogize Jaos’ remarks to those of an em-
ployee questioning whether a particular management official
was more interested in his or her personal advancement than
with the performance of the employer’s business. I would not
regard such remarks to be unprotected if they otherwise consti-
tuted protected concerted activity within the meaning of Sec-
tion 7.
Nevertheless, Respondent argues that it was entitled to dis-
charge Jaos on the grounds that it had a legitimate countervail-
ing interest that outweighs Jaos’ Section 7 rights. Citing Oper-
ating Engineers Local 370, 341 NLRB 822 (2004), Respondent
contends that it has a right to demand cooperation from its paid
employees and appointed representatives, and may discharge
those who are hostile to or in disagreement with the leadership
of the Union in the interest of promoting internal unity. The
Local 370 case is distinguishable from the instant case in that
the matters therein, for which Operating Engineers Local 370
fired organizer Melvin Thoreson, had no impact on Thoreson’s
working conditions. Thoreson repeatedly criticized Local 370
for allowing employers to cease making pension fund contribu-
tions on behalf of probationary apprentices. Since Thoreson
was not an apprentice, “the contribution waiver had no impact
on his own working conditions as an employee of the Local,”
(id. at 825). In the instant case the implementation of the new
call center had a profound impact on the working conditions of
Jaos and other business representatives, in that it materially
changed the nature of their duties and daily work activities.
Despite this distinction there remains an open question under
Local 370 and two United States Supreme Court cases as to
whether Respondent’s right to demand cooperation from its
paid employees outweighs Remzi Jaos’ Section 7 rights. In
Local 370, the Board observed, citing Eastex, Inc. v. NLRB,
437 U.S. 556 (1978), that the Board and the courts may balance
employees’ Section 7 rights with their employer’s countervail-
ing interests. The Board then analyzed Local 370’s countervail-
ing interests by discussing cases in which courts and the Board
have recognized a labor organization’s legitimate interest in
speaking with one voice and in internal unity.
The Board began it analysis by discussing Finnegan v. Leu,
456 U.S. 431, 102 S. Ct. 1867 (1982). In that case, the Supreme
Court held that a union did not violate the Labor-Management
Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C.
401, et seq., when the victorious candidate for president of
Teamster Local 20 discharged business representatives who had
been appointed by his opponent several years previously. Chief
Justice Burger writing for the Court opined that the LMRDA
“does not restrict the freedom of an elected union leader to
choose a staff whose views are compatible with his own.”
Far from being inconsistent with this purpose, the ability of
an elected union president to select his own administrators is an
SERVICE EMPLOYEES LOCAL 1 1111
integral part of ensuring a union administration’s responsive-
ness to the mandate of a union election. 456 U.S. at 441.3
Relying on Finnegan v. Leu and several Board cases arising
under Section 8(b)(1)(A),4 the Board opined that “Local 370
could legitimately demand the loyal service and cooperation of
Local 370’s employees in important positions like Thoreson’s
in the implementation of its policies,” Local 370, supra, at 824.
It also opined that, “Local 370 had a legitimate interest in the
support of its key paid employees for its contribution waiver
policy. Therefore, it had legitimate and substantial reasons to be
hostile to Thoreson for his relentless attacks on that policy,”
(Id. at 825).
The Board then proceeded to weigh Local 370’s interests
against Thoreson’s Section 7 interests in criticizing the Local’s
concessions made at the expense of the apprentices. It found
that the Local’s legitimate interests outweighed Thoreson’s
Section 7 rights.
Implicitly, the Board recognizes that an employer which is a
labor organization has legitimate interests in loyalty and inter-
nal unity that are different than those of employers who are not
labor organizations. Given the fact that Balanoff is the elected
president of the Respondent Union and that Remzi Jaos was an
appointed business representative, I conclude that the Union’s
interest in having employees who support the policies of the
elected leadership outweighs Jaos’ Section 7 rights. In Finne-
gan v. Leu, supra, the Supreme Court held that an elected union
leader may choose staff whose views are compatible with his or
her own. Similarly, I conclude that an elected union leader may
chose to retain only those appointed staff members sympathetic
to his or her policies. Moreover, such an official may make

3 In Sheet Metal Workers’ International Association v. Lynn, 488
U.S. 347, 109 S. Ct. 639 (1989), the Court held that a union could not
discharge an elected union business agent for opposing a dues increase
proposed by a trustee appointed by the International Union. The Court
found that the discharge violated the LMRDA because it was inconsis-
tent with the Act’s objectives in promoting union democracy.
4 Service Employees Local 254 (Brandeis University), 332 NLRB
1118 (2000), and Shenango, Inc., 237 NLRB 1355 (1978).
such personnel decisions regardless of whether the appointed
staff members have concertedly protested the elected official’s
policy decisions, even if the concerted protest involves the staff
members’ working conditions, which do not outweigh legiti-
mate interests of the union.
The instant case essentially involves balancing the union’s
interest in implementing a markedly different way of servicing
its members with Remzi Jaos’ interest, albeit discussed with
other representatives, in performing his job in the same manner
as he had in the past. I find the interests of the elected union
leadership in administering the union in a manner which they
deem most effective, outweighs Jaos’ interest in retaining the
job duties he deems most satisfactory, challenging or reward-
ing. Therefore, I conclude that Respondent did not violate Sec-
tion 8(a)(1) in terminating the employment of Remzi Jaos.
CONCLUSION OF LAW
Respondent did not violate Section 8(a)(1) of the Act in dis-
charging Remzi Jaos for engaging in protected concerted activ-
ity.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The complaint is dismissed.

5 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 pur-
poses.