Washington State Service Employees

National Labor Relations Board - Board Decisions

Mar 12, 1971

188 N.L.R.B. 957 (N.L.R.B. 1971)

WASHINGTON STATE SERVICE EMPLOYEES 957
Washington State Service Employees State Council
No. 18 and Local 6, Service Employees Union affil-
iated with Building Service Employees International
Union , AFL-CIO, and Jill Severn. Case 19-CA-
4570
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act by discharging Severn for engag-
ing in concerted activities protected under Section 7 of the
Act. Briefs I}ave been submitted by the parties.
Upon the entire record in the case , and from my observa-
tion 'of the witnesses, I make the following:
March 12, 1971
DECISION AND ORDER
On August 14, 1970, Trial Examiner Martin S. Ben-
nett issued his Decision 'In the above-entitled proceed-
ing, finding that the Respondents had engaged in and
were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondents filed exceptions to the Trial Examiner's
Decision ,and a supporting brief.
The Board has reviewed the rulings of the Trial
Examiner at the hearing and finds that no prejudicial
error was conirnitted. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Deci-
sion, the exceptions, brief, and the entire record in the
case,' and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner and hereby orders that
the Respondents , Washington State Service Employ-
ees State Council No. 18 and Local 6, Service Em-
ployees Union affiliated with Building Service
Employees International Union, AFL-CIO, Seattle,
Washington , their officers , agents , and representa-
tives, shall take the action set forth in the Trial
Examiner's Recommended Order .2
1 The Respondent's request for oral argument is hereby denied as the
exceptions , brief, and the entire record adequately present the issues and
positions of the parties.
2 In footnote 5 of Trial Examiner 's Decision , substitute "20" for "10" days.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter was
heard at Seattle, Washington, on May 7, 1970. The com-
plaint, issued January 15, 1970, and based on charges filed
November 12, 1969, and January 14, 1970, by Jill Severn,
an individual, alleges that Respondents, Washington State
Service Employees State Council No. 18, herein State Coun-
cil, and Local 6, Service Employees Union, herein Local 6,
affiliated with Building Service Employees International
Union, AFL-CIO, had in their capacity as an employer
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Washington State Service Employees State Council No.
18 and Local 6, Service Employees Union are labor organi-
zations within the meaning of Section 2(5) and are employ-
ers of their own employees within the meaning of Sectipn
2(2) of the Act. Local 6 exercises urisdiction over Seattle,
Washington , and is one of a number of locals in the State
which comprise State Council . They are affiliated with
Building Service Employees International Union, AFL-
CIO, herein the International , whose office is in Chicago,
Illinois . The latter has chartered in excess of 259 local un-
ions in various states of the United States and, during 1969
Respondents, together with other affiliated local unions,
remitted per capita taxes , a percentage of dues and initiation
fees , and other monetary payments in excess of $250,000
across state lines to the headquarters office of the Interna-
tional . I find that Respondents are engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act. See
Employees International Union, Local 11 (Oregon
2ters) v. N.L.R.B. 353 U.S. 313.
II. THE UNFAIR LABOR PRACTICES
A. Introduction; The Issue
Jill Severn was employed by Respondents as an or gganizer
in May of 1969. She was terminated on November it after
participating in a demonstration with employees of other
employers and members of civil rights groups for the pur-
pose of furthering the employment opportunities of minori-
ty groups by other employers. This led to the arrest,
publicized in the ress , of Severn and others for criminal
trespass . Respondents admit that she was terminated for
this reason , but contend both that this was a source of
embarrassment and an activity' not protected under Section
7 of the Act. Also at issue herein is whether this was a
concerted activity in view of the fact that the record is silent
as to any other employees of Respondents participating in
this demonstration.
B. Joint Employers
Contrary to the claim that Severn was solely an employee
of State Council, the record amply demonstrates that Re-
spondents were joint employers of Jill Severn. Arthur Hare
is president of Local 6, secretary- treasurer of State Council
and also a vice president of the International. He testified
that he hired Severn in May of 1969 to work as an organizer
for State Council. Inasmuch as State Council lacks a payroll
procedure, Severn was placed upon the payroll of Local 6
and was accordingly paid through Local 6. The record dis-
closes that this was much more than a bookkeeping proce-
dure.
Thus, the checks of Severn were signed both by Hare and
by Secretary-Treasurer Eugene Hooper of Local 6. Moreo-
ver, Local 6 directly and individually absorbed both
Severn's car allowance as well as her medical benefit pay-
ment. As Hooper put it, Local 6 agreed to pick up her car
188 NLRB No. 141
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expenses in connection with organizational activities be-
cause State Council had no more funds available. It is sig-
nificant that Severn's organizational efforts were solely with
persons who were to join Local 6. This was so because her
activities were limited to the city of Seattle and this was
precisely the jurisdiction of Local 6.
Local 6, utilizing its own checks, directly paid Severn her
monthly salary. It then billed State Council for this amount
and Hare, now wearing his hat as secretary-treasurer of
State Council, would monthly remit that precise amount to
Local 6. While Hare claimed that no one connected with
Local 6 supervised Severn, the fact is he, Hare, did supervise
her, wearing at least two connecting hats from the two labor
organizations, and at no time distinguishing them.
While it could well be argued that Local 6 rather than
State Council was the basic employer at the very least, both
labor organizations determined the essential terms and con-
ditions of her employment, her activities were basically in
behalf of Local 6, she had contacts with officials of Local
6, and Local 6 solely paid at least part of her remuneration.
I find that State Council and Local 6 were joint employer
of Severn. See Manpower, Inc., 164 NLRB 287.
C. Sequence of Events
Jill Severn, who is white, was hired as an organizer by
Respondents in May of 1969. Severn's competency is con-
ceded. Her function was to organize employees of nursing
homes and hospitals in Seattle, Washington. Severn testi-
fied, and this is not in dispute, that the employees she organ-
ized are approximately 50 percent black.
Severn is manifestly a most articulate person and is presi-
dent of an organization known as Radical Women. This is
a local organization in the Seattle area whose function is to
alleviate and improve the role of ostensibly deprived or
downtrodden females . In that capacity, several days after
she entered Respondents' employ, she participated in a
picket line sponsored by an unrelated labor organization on
strike against an employer in Seattle which was engaged in
the finishing of hotogra hs. Severn engaged in this picket-
ing between 6:30 and 8:3D a.m., prior to her normal starting
hour of 9 a.m.
This picketing activity by Severn was reflected in the local
press . As President Hare of Local 6 put it, he read the news
story, told Severn that this type of picketing brought disre-
pute to Respondents, and said that she was to choose to
work for Radical Women or for Respondents. According to
Severn, Hare told her that he was prepared to discharge her
for this activity in behalf of Radical Women but, after some
discussion, reversed himself. Be that as it may, Severn suf-
fered no discipline it on this occasion.
In August of 1969, Severn became interested in an organi-
zation known as Central Contractors Association, herein
CCA, which was active in promoting job opportunities for
underprivileged members of the Seattle black community.
Building trades contractors working at the Seattle-Tacoma
Airport-had agreed with CCA to hire and train underprivi-
leged blacks in the building trades; they then, at least in
part, reneged, ostensibly due to pressure from labor organi-
zations representing the building trades.' It would appear
that the blacks were either not put to work or, on the other
hand, were assigned to perfunctory tasks and did not receive
the promised training. On November 6, 1969, there was a
demonstration at the Seattle-Tacoma Airport by approxi-
mately 300, including affected trainees and Severn, in sup-
port of those persons who had been allegedly discriminated
' There were several projects underway including a new post office.
against by the contractors and the building trades unions.
They sat in front of airline ticket counters with the aim to
induce the airlines to intervene in their behalf, and a sub-
stantial number were arrested for criminal trespass . No con-
tention is made that this was violent and the record warrants
the conclusion that it was peaceful in nature. Severn was
one of those arrested and, on the morning of November 7,
her arrest was prominently set forth in a morning newspa-
per.
As Hare put it, he told Severn on November 7 that he was
very much disturbed about the incident and would discuss
it with her on Monday, November 10; it is undisputed that
he was not feeling well on this occasion. On Monday, Hare
spoke with Severn and reminded her about the prior picket-
ing incident. He stated that her participation in this type of
activity brought disrepute upon local labor organizations
and told her that she would have to decide whether to work
for State Council or for these other organizations.2
Hare contended that her participation in this outside ac-
tivity would make her ineffective as an organizer because
the employers whose employees she was organizing would
point to her as someone who would likely be sent to ail. On
the other hand, Severn pointed out, with considerable'i l logic,
that the employees she was organizing were approximately
50 percent black and that this outside activity by her, aI
though motivated by more basic factors, would facilitate
organizational activities. Hare testified that on the following
morning, November 11, Severn came to his office and stated
that she had made a decision to expose him to the press and
to go to the Labor Board. He then discharged her. Severn's
version was that she told Hare she did not consider this a
viable alternative and that she believed this issue should be
passed upon by the membership of Local 6. Hare responded
that she was crazy and that she was discharged.
It is clear and I find, on either version, that Hare pre-
sented Severn with a choice of working for Respondents or
for outside organizations , announcing that the two were
incompatible. Severn refused to make such a choice and
Hare then discharged her because of the airport incident
and because of her refusal to commit herself to abandon all
outside activity of this nature.
D. Was This a Concerted Activity?
Initially considered is whether Severn's activity was "con-
certed" activity within the meaning of Section T of the Act.
So far as the record discloses, no other employee of Respon-
dents participated in the demonstration at the Seattle Air-
port. But employees of other employers were present and
active, and, more particularly, the trainees who were present
and participated are employees within the meaning of the
Act. See Phelps Dodge Corp. v. N.L RB. 313 U.S. 177,
wherein attention was directed to the language of the Act
that the term employee "shall include any employee, and
shall not be limited to the employees of a particular employ-
er, unless the Act explicitly states otherwise ... and point-
ing out further that the use of this term was not fortuitous.
See also Fort Wayne Corrugated Paper Co. v. N.L.R.B., 111
F.2d 69 (C.A. 7), censuring a threat of discipline to an
employee for activities in behalf of the em lo,ployees of another
company. Indeed, the Board in that case flatly held that the
Act did not lt an employee to activities on behalf of his
own employer.
And Section 7 does not place any limitation upon the
2 Severn took compensatory time off to demonstrate on this occasion,
having so notified Hooper . Respondent contended that she was not author-
ized to do this , but ultimately conceded this was not an operative factor in
her termination.
WASHINGTON STATE SERVICE EMPLOYEES 959
term "concerted" which would warrant a conclusion that a
combination of employees as that present herein was not
protected by Section 7. The record further discloses that
Respondents through Hooper were on notice that Severn
intended to participate in the demonstration, this manifestly
not being a single person operation. Indeed, Hare was on
notice thereof, through the press story, when he discharged
Severn. I find that this was a concerted activity under Sec-
tion 7 of the Act.
E. Was This an Activity for Mutual
Aid and Protection?
The purpose of the nonviolent demonstration was to pro-
test the failure of the building contractors at the Seattle-
Tacoma Airport to live up to employment pledges to hire
minority groups on their construction projects . One of these
projects was the construction of a Federal Post Office and
it would certainly seem that Federal funds were involved in
runway construction also under way. Thus, the activity was
also in support of Federal policy against racial discrimina-
tion.
The Board has held in Tanner Motor Livery, Ltd., 148
NLRB 1402, that protests and picketing to induce one's own
employer to hire blacks are a protected Section 7 activ-
ity. See also Mason and Hanger-Silas Mason Co., 179
NLRB 434.
There is authority that Severn was protected even though
the demonstration was not aimed at the hiring practices of
her own employer . N.L.R.B. v. Peter Cailler Kohler Swiss
Chocolates Co., Inc., 130 F.2d 503 (C.A. 2). The employees
of that employer , a chocolate manufacturer , published a
newspaper protest in su sport of another labor organization
which was engaged in a milk strike" against an association
which sold milk to their employer . The sole issue was wheth-
er this was a protected concerted activity and the court
concluded that it was . The court conceded that concerted
activities with employees of other employers may be highly
prejudicial to an employer "but the Statute forbids him by
a discharge to rid himself of those who lay such burdens
upon him ." In General Electric Co., 169 NLRB 1101, the
Board found protected the collection by employees of mon-
ey for agricultural workers of other employers who were not
even employees under the Act. And, in Bob 's Casing Crews,
Inc., 178 NLRB 3, the Board found a violation where an
employer refused to employ one who had enga ged in a
protected concerted activity, namely walking off a job,
while working for another employer.
Nor is there any substantial evidence that this activity
was truly inimical to Respondents ' business activities as
labor organizations . Cf. N.L.R.B. v. Local 1229, IBEW (Jef-
ferson Standard), 346 U.S. 464 . There is no showing that
Hare had been contacted by the building trades unions or
that the latter dealt with Respondent . Stated otherwise, at
best , Hare did not want to be party to activity directed at
a sister labor organization. Severn uncontrovertedly testi-
fied that the employees whom she attempted to organize
were approximately 50 percent black . This suggests that her
extraneous activity, when publicized , would rather be help-
ful to her as an organizer . And Hare 's final remarks to her
at the time of her discharge disclose rather a lack of personal
sympathy on his part with Severn's views rather than a true
policy concern over relations with other labor organiza-
tions . Finally , as I view it , on either reason , Severn would
be equally protected.
3 Remanded twice on other grounds in N LR B v. Tanner Motor Livery,
Ltd., 349 F.2d 7, and 419 F.2d 216 (C.A. 9) -
I find that Severn was engaged in a concerted activity for
mutual aid or protection within the meaning of Section 7 of
the Act. I further find, in view of all the foregoing considera-
tions, that by discharging Jill Severn for this reason Respon-
dents have engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
III THE REMEDY
Having found that Respondents have engaged in unfair
labor practices , I shall recommend that they cease and de-
sist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
It has been found that Respondents violated Section
8(a)(1) of the Act by discharging Jill Severn on November
11, 1969. 1 shall therefore recommend that Respondents
offer Severn immediate and full reinstatement to her former
job, or if this job no longer exists , to a substantially equiva-
lent position , without prejudice to her seniority or other
rights and privileges. See The Chase National Bank of the
City of New York, San Juan, Puerto Rico , Branch, 65 NLRB
827.
I shall further recommend that Respondents make her
whole for any loss of ' earnings she may have suffered as a
result of her discharge, by payment of a sum of money equal
to that she normally would have earned from said date to
the date of Respondents ' offer of reinstatement , less net
earnings during such period, with backpay and interest
thereon to be computed in the manner prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716. As part of Severn's
remuneration was an unspecified medical premium pay
-ment, she is to be made whole for any medical expenses she
has incurred which would have been paid for her under the
medical plan or coverage.
On the basis of the foregoing findings of fact, and upon
the entire record in the case , ?make the following:
CONCLUSIONS OF LAW'
1. Respondents , Washington State Service Employees
State Council No. 18, and Local 6, Service Employees Un-
ion, affiliated with Building Service Employees
p
Internation-
al Union , AFL-CIO, are labor organizations within the
meaning of Section 2(5) and are employers with res pect to
their own employees within the meaning of Section 2(2) of
the Act.
2. By discharging Jill Severn on November 11, 1969,
because she engaged in concerted activities to protest racial-
ly discriminatory hiring policies and practices , Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclu-
sions of law, it is recommended that Respondents , Washing-
ton State Service Employees State Council No. 18 and Local
6, Service Employees union, affiliated with Building Em-
ployees International Union , AFL-CIO, their officers,
agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Discharging or threatening to discharge its employees
because they engage in concerted activities to protest racial-
ly discriminatory hiring policies and practices.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act.:
(a) Offer to Jill Severn immediate and full reinstatement
to her former job, or if this job no longer exists, to a substan-
tially equivalent position, without prejudice to her seniority
or other rights and privileges.
(b) Make Jill Severn whole for any loss of pay and bene-
fits she may have suffered as a result of her discharge in the
manner set forth above in the preceding section entitled
"The Remedy."
(c) Preserve and make available to the National Labor
Relations Board and its agents , upon request , for examina-
tion and copying, all payroll records, social security pay-
ment records , time cards, personnel records and reports,
and all other records necessary to determine the amount of
backpay due under the terms of this recommended order.
(d) Post at their offices copies of the attached notice
marked "Appendix."4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 19, shall, after
being duly signed by Respondents, be posted by them im-
mediately upon receipt thereof and maintained for 60 con-
secutive days thereafter , in conspicuous places, including all
places where notices to their employees are customarily
posted . Reasonable steps shall be taken by Respondents to
insure that said notices are not altered , defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 19, in writing,
within 20 days from the date of receipt of this Decision,
what steps they have taken to comply herewithS
4 In the event no exceptions are filed as provided by Sec. 102 . 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations , and Recommended Order herein shall, as
provided in Sec . 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions , and order , and all objections
thereto shall be deemed waived for all purposes . In the event the Board's
Order is enforced by a Judgment of a United States Court of Appeals, the
words in the notice reading "Posted by Order of the National Labor Rela-
tions Board" shall be changed to read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
5 In the event this Recommended Order is adopted by the Board this
provision shall be modified to read . "Notify the Regional Director for Re-
gion 19, in writing, within 10 days from the date of this Order , what steps
it has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or threaten to discharge our
employees because they engage in concerted activities
to protest racially discriminatory hiring policies and
practices.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise
of the rights guaranteed by Section 7 of the Act.
WE WILL offer Jill Severn immediate and full rein-
statement to her former position , or if it no longer
exists, to a substantially equivalent position without
prejudice to her seniority or other rights and privileges.
E WILL make Jill Severn whole for any loss of Tay
and benefits she may have suffered as a result of her
discharge.
WASHINGTON STATE SERVICE
EMPLOYEES STATE COUNCIL No. 18, af-
filiated with BUILDING SERVICE EM-
PLOYEES INTERNATIONAL UNION,
AFL-CIO
Dated By
(Representative) (Title)
LOCAL 6, SERVICE EMPLOYEES UNION,
affiliated with BUILDING SERVICE
EMPLOYEES INTERNATIONAL UNION,
AFL-CIO
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its previsions may be directed to the Board 's Office, Repub-
lic Bldg ., Tenth Floor, 1511 Third Avenue, Seattle, Wash-
ington 98101, Telephone 206-583-7473.