Beverly Manor Convalescent Center

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Service Employees International Union, Local No. 579, AFL-CIO (Convacare of Decatur d/b/a Beverly Manor Convalescent Center, et al.) and Carolyn P. Evans and John Scales. Cases 10-CB-2564 and 10-CB-2573 more nearly that of a legislator to a constituent. Cf. Steele v. Louisville & Nashville Railroad Co., et al., 323 U.S. 192 (1944). Although that requires that union decisions affecting employees be made in good faith, application of the strict standard of allegiance owed by an attorney to a client might well preclude representation by a union of more than one member because of the potential conflicts of interest. We adopt pro Jorma, in the absence of exceptions, the Administrative Law Judge's finding that the Respondent violated Sec. 8(bXIXA) when its agent told an employee that the Respondent did not file grievances. May 16, 1977 DECISION AND ORDER DECISION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On December 28, 1976, Administrative Law Judge Michael O. Miller issued the attached Decision in this proceeding. Thereafter, both the General Coun- sel and the Respondent filed exceptions and support- ing briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Service Employ- ees International Union, Local No. 579, AFL-CIO, Atlanta, Georgia, its officers, agents, and representa- tives, shall take the action set forth in the said recommended Order. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We agree that the Respondent violated Sec. 8(b)(IXA) by its perfunctory handling of Carolyn Evans' grievance. But we do not adopt any implication that, in the informal, investigative, or bargaining stage of a grievance, a collective-bargaining representative's duty to an employee it represents is analagous to that owed by an attorney to a client. The nature of the relation between a labor organization and an individual employee is STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge: These consolidated cases were heard on September 21, 1976, in Atlanta, Georgia. The charge in Case 10-CB-2564 was filed by Carolyn P. Evans, an individual, on April 21, 1976,1 and amended on June 11. The charge in Case 10- CB-2573 was filed by John Scales, an individual, on May 21 and amended on June 14. Based upon these charges and amended charges, on September 2, the Acting Regional Regional Director for Region 10 of the National Labor Relations Board issued an order consolidating cases, complaint, and notice of hearing. The complaint alleged that Service Employees International Union, Local No. 579, AFL-CIO, herein Respondent, failed and refused to process the grievance filed by Carolyn P. Evans, an employee of Convacare of Decatur d/b/a Beverly Manor Convalescent Center because of her nonattendance at union meetings and for other arbitrary or irrelevant reasons. The complaint further alleged that the said Local No. 579 failed and refused to process a grievance on behalf of John Scales, an employee of Springdale Convalescent Center, for arbitrary and irrelevant reasons, and told Scales that Respondent did not file grievances. By the foregoing conduct, it was alleged, Respondent violated Section 8(b)(1)(A) of the Act. A timely filed answer denied the substantive allegations of the complaint. All parties hereto were afforded full opportunity to be heard, to examine and cross-examine witnesses, to intro- duce oral and documentary evidence, and to argue orally. A brief was submitted by General Counsel. Throughout the hearing, I carefully observed the witness- es. Based upon my observation of these witnesses and their demeanor, and my consideration of the entire record in this case, 2 I make the following: All dates hereinafter are in 1976 unless otherwise specified. General Counsel's motion to reopen the record and receive G.C. Exh. 5 into evidence is hereby granted. 229 NLRB No. 104 692 SERVICE EMPLOYEES INTL. UNION, LOCAL 579 FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION STATUS- PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, Respondent admits, and I find that Convacare of Decatur d/b/a Beverly Manor Conva- lescent Center (herein Beverly Manor) and Springdale Convalescent Center (herein Springdale) are corporations which operate nursing homes within the State of Georgia. Jurisdiction is not in issue; each annually derives gross revenues in excess of $100,000 and makes substantial purchases of goods directly or indirectly from outside the State of Georgia. I conclude that both Beverly Manor and Springdale are employers within the meaning of Section 2(2) of the Act, engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, Respondent admits, and I find and conclude that Respondent is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. John Scales' Grievance 1. The facts John Scales is employed at Springdale as a housekeeper and porter. He is a member of Respondent Local No. 579 and, since the Union was selected as Springdale's employ- ees' collective-bargaining representative, has been the Union's chief steward in that unit. On January 30, Scales received a written warning for tardiness, stating that he had been late arriving for work 4 days in a I-week period. According to Scales, as corrobo- rated by his timecard, three of the incidents involved tardiness of only a single minute and on the fourth occasion he was 14 minutes late as a result of a power failure in his neighborhood during the night. Scales protested the warning and its wording to both his supervisor and the nursing home administrator, Ms. Jerri Keys. Keys refused to expunge the warning but did agree to have some of the language therein modified. Scales then contacted Respondent's business agent, Paul Masson. Pursuant to Masson's suggestion, Scales went back and spoke again to Keys. He told her that the timeclock did not coincide with the other clocks on the premises but he did not follow Masson's suggestion that he and Keys check the accuracy of the timeclock together. Keys once again refused to revoke the warning notice given to Scales. A couple of days thereafter Scales returned to the union office and spoke again with Masson. Scales told Masson that he wanted to file a grievance to have the warning revoked. Masson attempted to question Scales about the 3 Masson testified that what he had said in effect was that the Union did not run around arbitrarily filing grievances. However, Scales' testimony in regard to the final statement made to him by Masson is corroborated, almost verbatim. by the testimony of Dianne P. Hartsfield. Hartsfield is an organizer employed by the Respondent and was sitting outside of Masson's office at the time this exchange took place. Both Scales and Hartsfield testified credibly. and particularly noting the corroboration of Scales' testimony by an agent of Respondent, I credit his testimony. details of the incident and an argument developed over whether Scales was going to tell Masson his story his own way or whether Masson was going to question him closely about it. According to Scales, Masson told him that, if he (Scales) wasn't going to listen to Masson, he could get up and get out of the office. Scales asked Masson for the forms on which to file a grievance and stated that he would fill it out himself and Masson told him, "We don't have any paper to file no grievance on. We don't file grievances." At this point Scales got up to leave, protested that Masson never did anything for the employees in the unit who had grievances except to question them as a prosecutor would, and then asked, one last time, whether Masson was going to file a grievance on his problem. Masson replied, "No, this Union don't file grievances." Scales replied that that's all he wanted to know and walked out.3 2. Discussion and conclusions Respondent contends, essentially, that its refusal to process further the grievance of John Scales was justified by Scales' own failure, both as employee and union steward, to fulfill his obligations to investigate the griev- ance, particularly his failure to adequately investigate and discuss with the nursing home administrator the alleged inaccuracy of the timeclock. I find merit to this contention. Moreover, Scales' testimony indicates only that, in his final conversation with Masson, Masson was attempting to elicit the facts from Scales. Scales, perhaps because of his excitability and emotional involvement with this incident, as indicated by his own testimony, saw this as Masson assuming a prosecutorial role and he did not give Masson the factual wherewithal upon which to file a grievance. Neither Masson's angry statement to the effect that this Union did not file grievances, nor the record herein, establishes a general practice on Respondent's part not to file grievances.4 I do not find that Respondent's refusal to further process a grievance on behalf of Scales resulted from any such policy. Accordingly, I recommend that this allegation be dismissed. However, it is clear that Masson did state to Scales, a union steward, that the Union did not file grievances. Such a statement, made to any employee but particularly to a steward, could not help but inhibit employees and restrain them from exercising their statuto- ry rights to enforce their right to fair representation. Accordingly, I find that, by telling Scales that Respondent did not file grievances, Respondent restrained and coerced employees in the exercise of their Section 7 rights and thereby violated Section 8(b)(IXA) of the Act. 4 The complaint did not allege a general unwillingness to file grievances by Respondent and, while the record herein, particularly in regard to Beverly Manor. raises some questions as to this Union's willingness to prosecute grievances, no finding on such an allegation can or will be made herein. 693 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Carolyn P. Evans' Grievance 1. The facts Carolyn Evans was a licensed practical nurse (LPN) employed since February 1974 on the evening shift at Beverly Manor. 5 Respondent Local No. 579 has been the collective-bargaining representative of Beverly Manor's employees, including the LPNs, since approximately December 1975, and Evans is a member of the Union. She has not attended union meetings. On Friday, February 29, Evans switched shifts with another LPN, Price, in order to attend her daughter's piano recital. The collective-bargaining agreement between Bev- erly Manor and Respondent requires that employees secure permission from the administrator or director of nursing prior to making such a shift change. Evans testified that approximately 2 weeks earlier she had told Kampten, the director of nursing, that she needed to change shifts for the foregoing reason and permission was granted at that time. She further testified that when she saw the work schedule for February 29 she noted that she was still listed for her regular evening shift and once again spoke to Kampten and confirmed her permission to change shifts with Price.6 Nothing was said to Evans during the following week until Friday, March 5, except that on Thursday, March 4, Beverly Manor's administrator, Wolfe, announced a rule against switching shifts because of the overtime costs involved. On March 5, Kampten called Evans at her home and discharged her because she had switched shifts with Price. Price was not discharged. 7 Immediately following her discharge Evans called the union office. Her call was received by Dianne Harsfield who recalled that Evans was distraught, crying, and that she related that she had just been terminated. She asked to speak to someone in the Union who could help her. Harsfield referred the call to Paul Masson. Masson directed Evans to get in touch with Truzella Miller, the union's chief steward at Beverly Manor, and then have Miller call Masson. Evans tried to reach Miller at the nursing home and, when unsuccessful, called her at her home. She told Miller that she had been discharged by Kampten, allegedly for switching shifts, and Miller said she would look into it.8 5 She also had a prior period of employment with Beverly Manor under its previous owners. 5 Kampten, who is no longer employed by Beverly Manor, denied that Evans had asked for permission to switch shifts with another employee or that she gave Evans permission to do so. Kampten, however, did recall Evans telling her about a forthcoming piano recital in which her daughter was participating. In this type of a case, the Board does not sit in place of the arbitrator and no resolution of this credibility issue is required, The Buffalo Newspaper Guild, Local 26, American Newspaper Guild, AFL-CIO- CLC (Buffalo Courier Express, Inc.), 220 NLRB 79 (1975). 7 General Counsel contended that Beverly Manor's discharge of Evans while retaining Price was evidence of a racially discriminatory practice inasmuch as Evans was black and Price was white. These facts raise a colorable claim of racial discrimination. However, the Board is not called upon to determine the ultimate grievance issue. See Buffalo Courier Express, Inc., supra. Kampten had testified that Price was not discharged because Price had been unaware that Evans lacked permission to arrange a change in shifts. 8 Miller confirmed that Evans called her and told her of the discharge, but claimed that she asked Evans whether Evans wanted her to file a grievance and Evans told her that she didn't want a grievance filed. I do not On Monday or Tuesday of the following week, Miller went to the office of Richard Wolfe, the administrator, and asked what the problem was with Evans. According to Miller's testimony, Wolfe said that they had had a lot of problems with Evans and showed Evans' personnel file to Miller. The file reflected warnings and disciplinary actions taken in regard to Evans in the past.9 Miller did not discuss Evans' discharge with Wolfe but only looked at the file. The record does not reflect that she asked Wolfe or Kampten whether the assigned reason for discharge, the swapping of shifts, was correct. Miller did not question Evans about either the change in shifts or any of the matters contained in her personnel file. After looking at Evans' personnel file, Miller told Wolfe that "there were a lot of problems there." She had no further conversation with Evans or Wolfe. Following her review of Evans' personnel records, Miller called Masson. According to Miller's testimony she merely told Masson that Evans had called and reported that she had been terminated. Miller reiterated her claim that Evans had said that she wanted no grievance filed. Masson allegedly replied that it was up to Evans and Miller to decide what was to be done. On cross and redirect examination Miller testified that she told Masson that Beverly Manor had had a lot of problems with Evans and that she thought the Employer had a reason for terminating her. She further testified that Masson told her that if Evans filed a grievance he and Mr. Wolfe could try to get together and work out a solution to that grievance. According to Masson, Miller called him following her meeting with Wolfe, informed him of the results of her "investigation" and when asked, told Masson that in her opinion Evans was terminated for cause. Masson agreed. Miller told Masson that Evans did not want to process the "case" further. Masson did not thereafter talk with either Wolfe or Evans about the Evans' termination until Evans subse- quently appeared at his office on April 20. Masson stated that he relied totally on the report from the steward. On April 20 Evans went to Masson's office. She told him that she wanted to see him about a grievance. Masson proceeded to call the nursing home and ask Wolfe whether Beverly Manor had received an Equal Employment Opportunity Commission charge. He told Wolfe that the Union had received one and requested Wolfe to send over credit Miller's testimony in this regard. It is obvious from Evans' call to the union office, and her calls to Miller, that she wanted assistance of the Union and was not calling merely to relay a bit of information. Moreover, Miller's testimony in this regard, aside from being illogical, was not tendered in a manner conducive to belief. I note, in particular, that during the course of Miller's direct examination, Miller stated no less than 13 times in the course of 39 pages that Evans had told her that she did not want a grievance filed. In the words of the immortal Bard, "Me thinks she doth protest too much." I note also that following her conversation with Evans, and notwithstanding the alleged request not to file a grievance, Miller proceeded to meet with Wolfe, the nursing home administrator, as discussed below. 9 Evans' personnel file contains two written warnings given to her in June and July 1975 for her attitude and for an error in signing for narcotics, respectively, four notations of absence due to illness, three warnings in January and February 1976, which apparently were not seen by her, and record of a 3-day suspension commencing February 9, 1976. The suspension appears to have been assigned to her because of the prior warnings, but testimony indicated that it grew out of an incident between Evans and a registered nurse which Evans attributed to her being ill as a result of a recent automobile accident. 694 SERVICE EMPLOYEES INTL. UNION, LOCAL 579 all of his documentation on the Evans' matter. Masson then proceeded to ask Evans whether she could secure her medical records. He also questioned her about her use of drugs, her blood pressure, and the recent passing of her mother. Evans asked why Masson was questioning her thusly and if he was going to file a grievance. He told her that he was not. After a few more words were exchanged, she left the office. Respondent's collective-bargaining agreement with Bev- erly Manor provides a four-step grievance procedure applicable to discharge actions, the final step of which is final and binding arbitration. The first step provides for a meeting between the chief steward and nursing home administrator. Absent settlement at step one, step two provides for reduction of the grievance to writing and a meeting between the business agent and the administrator. At step three the business agent meets with the representa- tive of the nursing home's owner. The procedure provides that a grievance "shall be initiated within 5 calendar days of the alleged violation" and arbitration may be sought "within 30 calendar days from the date of the alleged violation providing steps one, two and three of this procedure have been fully complied with in a timely manner." 2. Discussion and conclusions The complaint alleged that Respondent violated Section 8(b)(1)(A) by refusing to process Carolyn Evans' grievance because of her failure to attend union meetings and for other arbitrary and irrelevant reasons. Respondent, by its answer, contended that Evans' grievance was processed through the first step, at which point it determined that Evans was justly discharged for her poor work record. On the basis of that determination, Respondent alleged, it determined not to process the grievance further. It is well settled that a Union which enjoys the status of exclusive collective-bargaining representative has an obli- gation to represent employees fairly, in good faith, and without discrimination against any of them on the basis of arbitrary, irrelevant, or invidious distinctions. Vaca et al. v. Sipes, 386 U.S. 171 (1967); Miranda Fuel Company, Inc., 140 NLRB 181 (1962). A union breaches this duty when it arbitrarily ignores a meritorious grievance or processes it in a perfunctory fashion. Vaca v. Sipes, supra at 191, 194; Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976); Teamsters and Chauffeurs Local Union No. 729 (Penntruck Co., Inc.), 189 NLRB 696, 702 (1971). Correspondingly, so long as it exercises its discretion in good faith and with honesty of purpose, a collective-bargaining representative is endowed with a wide 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. Ford Motor Company v. Huffman, 345 U.S. 330 (1953); King Soopers, Inc., 222 NLRB 1011 (1976); Truck Drivers, Oil Drivers and Filling Station and Platform Workers, Local No. 705 (Associated Transport, Inc.), 209 NLRB 292, 304 (1974); Maxam Dayton, Inc., 142 'o Had she done so, she might have arrived at the conclusion suggested by General Counsel: racial discrimination in the assignment of discipline. This, too, might have provided a basis for a meritorious grievance. NLRB 396, 418 (1963). There comes a point, however, when a Union's action or its failure to take action is so unreasonable as to be arbitrary and thus contrary to its fiduciary obligations. Allen L Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UA W, 469 F.2d 181 (C.A. 4, 1972); United Steelworkers of America, Local 8093, AFL- CIO-CLC (Kennecott Copper Corporation, Ray Miner Division), 225 NLRB 802 (1976); King Soopers, supra; General Truck Drivers, Warehousemen, Helpers and Automo- tive Employees, Local 315 (Rhodes & Jamieson, Ltd), 217 NLRB 616 (1975). The only evidence of an unlawful reason for Respon- dent's failure to act further on Evans' behalf is found in Masson's affidavit. Therein, he stated: Evans has not attended any union meetings and in previous cases which I had with Region 10 of the NLRB, this fact was given considerable weight where the charging party, who was a member of the union alleged that the union had failed to fairly represent them. The context of this statement would seem to indicate that it was part of Masson's argument against issuance of complaint, not a reason why the Union did not process the grievance. At best, it is too ambiguous to support a finding that Respondent refused to process Evans' grievance because of her failure to attend union meetings. The question is thus whether Respondent's processing of, or refusal to process, Evans' grievance was so unreasonable as to be arbitrary. I conclude that it was. In reaching this conclusion I note particularly the following: When Miller reviewed Evans' personnel file in Wolfe's office, she undertook, intentionally or otherwise, to represent Evans at step one of the grievance procedure. Having undertaken that responsibility, Miller became obligated to represent Evans fully and fairly and to function as her advocate. United Steelworkers of America, AFL-CIO (Interroyal Corp.), 223 NLRB 1184 (1976); Associated Transport, Inc., supra. Miller failed to fulfill this obligation when, after reviewing the file, she agreed with Wolfe that there were a lot of problems with Evans. More importantly, I believe, Miller and Masson essentially abdicated their responsibili- ties toward Evans by failing to question, or even consider, the validity of the reason assigned for Evans' discharge. Evans was discharged for allegedly switching shifts without permission, not for her past derelictions. If, in fact, permission had been granted, the immediate cause for the discharge would have been removed and the discharge action would, in all likelihood, not have withstood the arbitral process. Miller did not seek Evans' side of the story; she did not raise the question with Wolfe and she did not question either Director of Nursing Kampten or Price, the nurse who made the switch with Evans.'o Masson, of course, questioned no one other than Miller. In evaluating the grievance, neither Miller nor Masson gave any consideration to the alleged precipitating event. Had they done so, Evans might have convinced them of the merits of 695 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her claim. But whether they, or the Employer, would have been convinced is, at this point, irrelevant. As the Board stated in Interroyal Corp., supra 1185, wherein the union president peremptorily refused the grievant's explanation and attempt at proof: [I ]t is patently irrelevant that the proof Beshears had in hand on March 24 might not have fully satisfied the Employer-it was not even considered by the Respon- dents. This failure to inquire into the validity of the stated reason for the discharge, and willingness to evaluate the worth of an employee solely through the eyes of the employer, is more than mere negligence or ineptitude. It is perfunctory grievance handling and so unreasonable as to be arbitrary. Additionally, I note that Miller cut off further consider- ation of Evans' grievance when, contrary to Evans' intentions, she told Masson that Evans did not want a grievance processed. Had she not thus blocked further consideration (and had Masson not accepted her state- ment, which conflicted with the tenor of his earlier conversation with Evans, so readily), Masson, with his greater expertise, might have discovered the flaws in Miller's "investigation," seen the credibility conflicts between Evans and Kampten and the possibility of racial discrimination, and determined to process the grievance further or otherwise meet with Wolfe and work out some sort of equitable adjustment." Accordingly, I find that by failing and refusing to process Carolyn Evans' grievance under the foregoing circumstanc- es, Respondent has breached its duty of fair representation and has violated Section 8(b)()(A) of the Act. III. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(bX)(XA) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It is not the function of the Board to decide the merits of a grievance in determining whether the refusal to process that grievance was violative of the Act: it is sufficient to determine from the record that the grievance was not "clearly frivolous." Buffalo Courier-Express, Inc., supra. Carolyn Evans' grievance was clearly not frivolous. An arbitrator, believing Evans, could find that the Employer erred in discharging her when it did; the arbitrator could also find racial discrimination in the assignment of discipline or that the discipline assessed here was excessive in light of Evans' medical problems which contributed to some of her earlier warnings. Even prior to arbitration, on the facts herein, the Union might have successfully prevailed upon the Employer to rescind or modify the discipline. 11 In this regard. I note and reject Respondent's contention that if it takes a grievance, it must be willing to press that grievance all the way to arbitration. The vast majority of all grievances are resolved short of arbitration. Vaca v. Sipes, supra, fn. 15. Accepting Evans' grievance at the prearbitration steps of the procedure would not have precluded a subsequent dropping of that grievance if such a determination were made reasonably. in good faith and honestly. However, the uncertainty as to whether Evans' grievance would have been found meritorious or would have otherwise been adjusted is a direct product of Respon- dent's unlawful action. Where, as here, resolution of that uncertainty is required for the determination of monetary responsibility, it is proper to resolve the question in favor of the injured employee and not the wrongdoer. Accordingly, for the purposes of remedy, I shall presume that if fully and fairly processed, Evans' grievance would have been found meritorious and that she would have been reinstated with backpay. King Soopers, Inc., supra; Local Union No. 2088, International Brotherhood of Electrical Workers, AFL-CIO (Federal Electric Corporation), 218 NLRB 396 (1975). Respondent's backpay liability must be limited to any loss Evans suffered as a result of the refusal to consider and process her grievance. That grievance is now time-barred; however, Respondent may be able to prevail upon the Employer to waive those time limits. Accordingly, I shall recommend that Respondent make Evans whole for any loss of earnings she may have suffered as a result of her discharge by Beverly Manor from the date of that discharge, March 5, 1976, until the earlier of the following occurs: Respondent secures consideration of her grievance by the Employer and thereafter pursues it in good faith and with all due diligence12 or, Evans is reinstated by Beverly Manor or obtains other substantially equivalent employ- ment. Interroyal Corp., supra; Federal Electric Corp., supra. Backpay shall be with interest at the rate of 6 percent per annum, as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950). ADDITIONAL CONCLUSIONS OF LAW I. By Paul Masson's conduct in telling John Scales that Respondent Union did not process grievances, Respondent restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby violated Section 8(b)(1)(A) of the Act. 2. By failing and refusing to process the grievance of Carolyn P. Evans in regard to the termination of her employment by Beverly Manor, Respondent has restrained and coerced Evans in the exercise of rights guaranteed in Section 7 of the Act, and thereby violated Section 8(b)(1)(A) of the Act. 3. The aforesaid unfair labor practices, occurring in connection with the operations of Beverly Manor and Springdale, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. They thus affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has not committed any unfair labor practices not specifically found herein. 12 As the grievance has yet to be processed beyond the first step, it is neither necessary nor appropriate at this time to order Respondent to proceed to arbitration. Whether or not the Respondent's obligations under the Act will require arbitration of the grievance necessarily depends upon future events and its own conduct. See Interroyal Corp., supra, fn. 3. 696 SERVICE EMPLOYEES INTL. UNION, LOCAL 579 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: ORDER '13 The Respondent, Service Employees International Union, Local No. 579, AFL-CIO, Atlanta, Georgia, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Restraining or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act by stating that the Union does not file grievances or by arbitrarily refusing to consider and process grievances. (b) Restraining or coercing employees in any like or related manner. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Request Beverly Manor to reinstate Carolyn P. Evans to her former position or, if it no longer exists, to a substantially equivalent position. If Beverly Manor refuses to reinstate her, ask it to consider a grievance over her March 5, 1976, termination and thereafter pursue her grievance in good faith with all due diligence. (b) Make Carolyn P. Evans whole for any loss of earnings she may have suffered as a result of her discharge by Beverly Manor, from March 5, 1976, until such time as she is reinstated by Beverly Manor or obtains other substantially equivalent employment or the Respondent secures consideration of her grievance by the Employer and thereafter pursues it with all due diligence, whichever is sooner, together with interest at the rate of 6 percent per annum, all to be computed in the manner set forth in the section of this Decision entitled 'The Remedy.' " (c) Post at their business offices and meeting halls and at all places where notices to their members and other employees in the bargaining unit are customarily posted (including all such places in Beverly Manor and Springdale Convalescent Centers) copies of the attached notice marked "Appendix."' 4 Copies of said notice, on forms provided by the Regional Director for Region 10, after being signed by officials of the Respondent, shall be posted by them immediately upon receipt thereof, and be maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. The Respondent shall also sign copies of the notice which the Regional Director shall make available for posting by Beverly Manor and Spring- dale, if they are willing. (d) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply therewith. L3 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, 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. 14 In the event that 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 Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the Order of the Board. WE WILL NOT fail or refuse to fairly represent any employee in a bargaining unit represented by us or arbitrarily fail or refuse to file and process any employee's grievance. WE WILL NOT tell employees that our Union does not file grievances. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their right to engage in or refrain from engaging in concerted activities guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agreement authorized by Section 8(aX3) of the Act. WE WILL request Beverly Manor to reinstate Carolyn P. Evans to her former position or, if it no longer exists, to a substantially equivalent position. If it refuses to reinstate her, we will ask Beverly Manor to consider a grievance over her March 5, 1976, termination and will pursue it in good faith with all due diligence. Since it was decided that we violated the Act by failing and refusing to file and process Carolyn P. Evans' grievance, WE WILL make her whole for any losses she suffered by reason of our failure to promptly file and process her grievance. SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL NO. 579, AFL-CIO 697