Service Employees Local 9 (Blumenfeld Enterprises)

SERVICE EMPLOYEES LOCAL 9 (BLUMENFELD ENTERPRISES) 1 Theatre and Amusement Janitors Union, Local 9, Service Employees International Union, AFL- CIO (Blumenfeld Enterprises, Inc.) and Yhya Mohamed. Case 20-CB-7404 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 28, 1988, Administrative Law Judge Joan Wieder issued the attached decision. The Re- spondent Union filed exceptions and a supporting brief, and the General Counsel filed a reply brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, " findings, and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , Theatre and Amusement Janitors Union, Local 9, Service Em- ployees International Union, AFL-CIO, San Fran- cisco, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. ' We agree with the judge's finding that Charley Huber was an agent of the Respondent, as he held the office of president of the Local on No- vember 17, 1987. We, therefore, find it unnecessary to rely on the judge's alternative finding that Huber , even if he were not president, was an ap- parent agent for the Respondent. Christine Rails, Esq., for the General Counsel. William Sokol Esq. (Van Bourg, Weinberg, Roger and Ro- senfeld), of San Francisco, California, for the Respond- ent. DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge. This case was tried in San Francisco, California, on February 23, 1988. The initial charge was filed by Yhya Mohamed, an Individual, against the Theatre and amusement Janitors Union, Local 9, Service Employees International Union, AFL-CIO (the Union), on October 9, 1987, and amend- i ed on November 24, 1987.1 The complaint, issued on December 18, 1987, and amended at trial, alleges the Union refused to permit Mohamed to view specified hiring hall records in violation of Section 8(b)(1)(A) of the National Labor Relations Act. In its answer, the Union denied the commission of any unfair labor prac- tices. All parties were provided opportunity to present oral and documentary evidence, cross-examine witnesses, and present oral argument. Counsel for the General Counsel presented an oral argument , and a posthearing brief has been received from Respondent.2 On the entire record, including my observation of the demeanor of the witness, and after due consideration of all pleadings and Respondent's brief, I make the follow- ing FINDINGS AND CONCLUSIONS 1. JURISDICTION The Union admits its status as a labor organization and stipulated that Blumenfeld San Francisco Theaters (Blu- menfeld), a partnership with an office and place of busi- ness in San Francisco , California, where it is engaged in the operation of movie theaters and the exhibition of motion pictures, during the calendar year ending Decem- ber 31, 1986, derived gross revenues in excess of $500,000 from such business and purchased and received goods and materials valued in excess of $5000 which originated from points outside the State of California. However, the Union asserts that Blumenfeld is not the appropriate entity to derive jurisdiction in this proceed- ing and therefore claims the Board lacks jurisdiction. It is Respondent's position that it is a "minuscule union" predominately concerned with representing jani- tors at racetracks; thus, most of its operations are not en- compassed within the Board 's jurisdiction. The Union did not adduce any evidence in support of this position. The Union did stipulate that from time to time it had collective-bargaining agreements with Blumenfeld and the last contract requiring them to hire janitors from the Union under an exclusive hiring hall provision, which has expired, was being followed by Blumenfeld and the Union in 1987. Accordingly, I find this claim of lack of jurisdiction to be without merit. The most recent collective-bargaining agreement effec- tive August 1, 1980, provides in relevant part: Section 2. Union Security (a) Union Membership: Membership in good standing in the Union not later than the thirty-first (31st) day following the beginning of employment or not later than the thirty-first (31st) day following the effective date of this Agreement, whichever is later, shall be a condition of employment. (b) Hiring: When new or additional employees are needed, the Employer shall notify the Union of ' All dates are in 1987 unless otherwise indicated. S The transcript was corrected by letter dated March 10, 1988, from the reporting service and a copy of the letter was sent to all parties. 290 NLRB No. 1 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the number of classifications of employees needed. Applicants for jobs shall be referred by the Union to the Employer for employment on a nondiscrim- inatory basis. The Employer shall be the sole judge of the com- petence of all applicants and reserves the right to reject any applicant referred by the Union. The Employer agrees within seven (7) days of the date of hiring to notify the Union of the name or names and addresses of the persons hired and the theatres to which such persons are assigned. In hiring, the Employer shall give preference to applicants previously employed in the building serv- ice industry in the local labor market area. If the Union is unable to refer to the Employer suitable applicants for employment within a reason- able time, the Employer may hire persons from other sources provided the Employer on the date of hiring shall notify the Union of the same and ad- dress of each person hired. Mohamed has never worked in a Blumenfeld theater but has been dispatched by the Union to work in other theaters and for various television stations, and is de- pendent on the Union on matters affecting his employ- ment. The complaint alleges, and I find, based on the stipula- tion and admitted uncontroverted facts, that Blumenfeld is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Similarly, I fur- ther find the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Only one witness appeared and testified, Mohamed. Mohamed has been a union member since 1972. He signed the out-of-work list "years ago." The list contains only the members' names and telephone numbers. At any one time, there were only about 15 names on the list. Usually, the same 15 members' names were on the list. As each new list was posted, Mohamed signed it. As a member was dispatched, his name would be crossed off the list. During 1987, Mohamed visited the Union 2 to 3 days a week seeking work . The list was hung on a wall and he frequently consulted it to determine if he would be dispatched. He was consistently told there was no work. The turnover rate was apparently slow; the list was changed approximately every 5 months. In mid-1987, Mohamed began to suspect that members were being dispatched out of order. 3 While he was at the union hall seeking work , he observed on the table used by the dispatchers four or five dispatch slips for several television stations, including KGO and KPIX. He does not know if the individuals dispatched to these jobs had their names crossed off the out -of-work list as he did not check. At the time he observed these dispatch slips, he talked to an individual called Kelly, who was indispu- 0 There is no allegation in the complaint that the Union violated the Act by making out-or-order dispatches tably a dispatcher for the Union. Mohamed asked Kelly if there was any work for him . Kelly replied "there's nothing, there's nothing for you, there's no job, it's kind of slow." After observing the dispatch slips, Mohamed asked about them if there was no work and Kelly said: Well those people had been request [sic]. I said this is not true request, I've been working Channel 5, I've been working Channel 7, I've been working all the building or this TV station that Local 9 has and these are the ones that put me to work . You can't say that. Well he says it's nothing, I can't do any- thing, there's no work for you. Mohamed never talked to any individuals he suspected received a dispatch, whether or not he believed their names were crossed off the list. He thought some names were not taken off the list after the members had been dispatched. Mohamed testified he would be told that cer- tain individuals were dispatched and yet would still see their names on the list. Mohamed was unsure whether there were two or three copies of the dispatches, but it is undisputed that there were at least two; one to be given to the Employer and one to be placed in the members' file which was maintained by the Union. On November 16, Mohamed telephoned the Union and spoke to an individual he identified as Louie's wife. It is undisputed that Louie also dispatched members and was assisted by his wife. He asked her if there was any work for him and she replied: There is no work for you. Then I ask her well I like to have a copy for the dispatch for the past six months because all the time I call she's no work and I'd like to get a copy.4 She said no we have to get an order for that from the court and she hung up on me. I tried to call her again and she hung up again. The next day, November 17, Mohamed went to the union hall and saw Charley Huber.5 4 Respondent claimed in its opening argument that Mohamed sent a letter to the Union claiming, "My attorney has advised me to ask for re- ferral lists from the Union ." The letter was not placed in evidence. Re- spondent understood that the reference to "my attorney" was either an attorney or field examiner for Region 20 and raised as a defense to the complaint the claim that the charge had been solicited by the Region. I find this claim has not been shown to be meritorious . On cross-examina- tion Mohamed said no one told him to ask for the dispatch slips and he did not tell Kelly his attorney advised him to ask for the dispatch slips. Inasmuch as Mohamed's testimony is uncontroverted, Respondent has failed to substantiate this allegation of solicitation of the charge by the Region. See generally Plumbers Local 136 (Shaw Ca), 280 NLRB 847 (1986) S Respondent denies Huber is the president of the Local. I credit Mo- hamed's uncontroverted testimony that he referred to Huber as the presi -. dent during the described conversation that day, November 17; and Huber admitted he was president of the Local . Furthermore, neither Huber nor Kelly, who was also present, claimed that Huber was no longer president. This conclusion is supported by a Labor Organization Annual Report, Form LM-3, submitted by Respondent to the United States Department of Labor pursuant to the Labor Management Report- ing and Disclosure Act of 1959, as amended, and Title VII of the Civil Service Reform Act, which indicates Huber was the president in 1986 and the next regular election for officers was December 1987. Mohamed testi- fied, without dispute, that Huber was president of the Local since he Continued SERVICE EMPLOYEES LOCAL 9 (BLUMENFELD ENTERPRISES) Mohamed asked Huber if Huber could assist him in getting work, since there had been other members dis- patched. Huber asked his name and when told referred to a suit Mohamed had initiated against the union, which cost them $700 for attorney's fees. Mohamed again asked Huber for work. Huber replied: "Well we can't do that. The Executive Board they say there's no work for you." Mohamed then told him he as president should be able to assist him. Huber rejoined : "There's no work, there's no work for you and I'm President doesn 't mean any good, because I'm President I can't do anything." Mohamed then asked to get a copy of the Union's dis- patches for the past 6 months indicating that he thought others had been dispatched out of order when he should have been dispatched. Huber told him they could not give him the information without a court order and re- ferred him to their attorney. The Union never gave Mo- hamed a copy of the requested dispatches or offered to let him review the documents in the union hall. Mo- hamed telephoned the Union's attorney three times, left his name and telephone number , but his calls were never returned. B. Analysis and Conclusions The Union's position is that they are not under a legal obligation to let one member see the files of all the other members. As was held in Operating Engineers Local 825 (Building Contractors), 284 NLRB 188, 189 (1987): A union has an obligation to deal fairly with an em- ployee's request for job referral information and that an employee is entitled to access to job referral lists to determine his relative position in order to protect his referral rights. Teamsters Local 282 (AGC of New York), 280 NLRB 733, 735 ( 1986); Op- erating Engineers Local 324 (AGC of Michigan), 226 NLRB 587 (1976). Moreover, it has been held that "A union breaches its duty of fair representation in violation of Section 8(bXl)(A) of the NLRA when it arbitrarily denies a member's request for job re- ferral information, when that request is reasonably directed towards ascertaining whether the member has been fairly treated with respect to job refer- rals." See NLRB v. Carpenters Local 608, 811 F.2d 149 (2d Cir. 1987), enfg. 279 NLRB 747 (1986). Respondent argues that Mohamed offered no "good reasons" for his request which it claims "is overbroad and burdensome . . . it invades the privacy of the mem- bers, and Mohamed has always been allowed to see the became a member. Any change in officers after such a long tenure would likely be the subject of common knowledge and/or susceptible to docu- mentation; no documentation supporting the claimed change of union presidents was submitted. Based on the absence of any evidence that there was a change in officers , the situs of the conversion in the office rather than outside in the hall, and the failure of Huber and Kelly to dis- claim Mohamed's assertion, I find Huber was president of the Union on November 17, 1987. Additionally, assuming Huber was no longer presi- dent, his failure to correct Mohamed's understanding in the presence of the uncontroverted agents, makes Huber an agent for Respondent during the time here pertinent and renders the Union responsible for his state- ments and actions. 3 out-of-work list." I find these arguments unpersuasive and lacking in merit. As previously indicated, a union member has the right to protect his right to fair treatment by the union in mat- ters affecting his employment . Miranda Fuel Co., 140 NLRB 181, 189 (1962). In that decision , the Board quoted from Electrical Workers IUE Local 801 v. NLRB; NLRB v. General Motors Corp., 307 F.2d 679, 683 (D.C. Cir. 1962), as follows: Among the most important of labor standards im- posed by the Act as amended is that of fair dealing, which is demanded of the union in their dealings with employees.... The requirement of fair deal- ing between a union and its members is in a sense fiduciary in nature and arises out of two factors. One is the degree of dependence of the individual employee on the union organization; the other, a corollary of the first, is the comprehensive power vested in the union with respect to the individual. In this case, Mohamed indicated he was on the out-of- work list for years without dispatch and suspected he was not being treated fairly by the Union . He suspected other members were dispatched out of order and the mentioning of a prior suit he filed against the Union fur- ther raised his suspicions of unfair treatment. Instead of taking steps to allay his concerns, the Union referred Mohamed to their attorney. There was no claim of unduly burdensome efforts required to meet the request for the dispatch slips as the basis for denial when Mo- hamed spoke to anyone at the Union. Only after union representatives denied his requests did counsel raise the claim that the request was unduly burdensome. I find this claim is not colorably valid . On the one hand Respondent asserts it is so minuscule as to avoid the Board's jurisdiction, and on the other presents asser- tions that reviewing personnel files for dispatch slips is so burdensome as to overcome a member's right to infor- mation relevant to determining if he is receiving fair treatment when he fails to receive a dispatch. The un- controverted evidence of record is that there were few dispatches over the 6-month period encompassed in the request in a "minuscule" Union. There was no evidence that there were logistical problems in providing the in- formation. Huber and Louis' wife did not make such a claim at the time Mohamed made his requests . If there are impediments to providing the information , Respond- ent has not demonstrated them. Similarly, Respondent failed to substantiate its claim that the personnel files of its members contain confiden- tial material. There is no evidence of what they con- tained other than dispatch slips. Again, it was not until after the Union refused to provide the information that a claim of confidentiality was raised. I find there is no basis to conclude that the material contained in the files warrants designating them confidential . Even if I assume there are confidential matters contained in the files, as noted above, there was no reasonable impediment dem- onstrated to Respondent's extracting the dispatch slips from the files. Thus, I conclude Respondent's refusal to honor Mohamed's request was arbitrary. 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As found in Operating Engineers Local 324 (AGC of Michigan), 226 NLRB 587, 598-599 (1976): A union is a service agency , designed to further the interests of the employees it represents. There is no reason for it to be a closed society, unresponsive to reasonable requests of the unit employees. As the Court of Appeals for the District of Columbia Cir- cuit noted in I. U.E., Frigidaire Local 801 v. NLRB, supra, 307 F.2d at 683 (per J. Burger), a union, as the agent of employees, is subject to the positive obligation set forth in Restatement (Second), Agency Section 381 (1958): "To use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have." On the evidence before me, there is nothing to show that the [members'] request required Respondent to exert efforts which might be described as unreasonable and beyond the call of duty described. In the circumstances of this case , I find Respondent violated Section 8(b)(1)(A) of the Act by arbitrarily de- nying Mohamed's request for the dispatch records for the preceding 6 months. Mohamed clearly requested the information to ascertain if he was being fairly treated by the Union when he failed to receive job referrals and he was entitled to and had a reasonable need for that infor- mation. CONCLUSIONS OF LAW 1. Blumenfeld Enterprises, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is now, and has been at all times materi- al, a: labor organization within the meaning of Section 2(5) of the Act. 3. By arbitrarily refusing to provide Yhya Mohamed with copies of dispatches for a specified 6-month period as lawfully requested by him, the Union has engaged in unfair labor practices within the meaning of Section 8(bXIXA) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found the Union has engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, I recommend that it be ordered to cease and desist there- from and that it take certain affirmative action to effectu- ate the policies of the Act. Having found that the Union unlawfully refused to provide Yhya Mohamed with the previously described information, I recommend that, on request duly made, it be ordered to do so. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eda 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 ORDER The Respondent, Theater and Amusement Janitors Union Local 9, Service Employees International Union, AFL-CIO, San Francisco, California, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing arbitrarily to honor requests for informa- tion regarding referrals for employment by failing to pro- vide Yhya Mohamed with copies of the dispatch slips re- flecting dispatches from its hiring hall for a discrete 6- month period. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, provide to Yhya Mohamed copies of the dispatch list for the 6 months preceding his request. (b) Post at its business offices and other places where notices to their members are customarily posted copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. Board and all objections to them shall be deemed waived for all pur- poses. * 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 Nation- al 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 MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to provide Yhya Mohamed with copies of dispatch slips reflecting all referrals from our hiring hall for the 6 months preceding his request. WE WILL NOT arbitrarily refuse to honor members' reasonable requests for information pertaining to the re- ferral of members to positions with employers. WE WILL NOT in any like or related manner restrain or coerce employees or applicants for employment in the SERVICE EMPLOYEES LOCAL 9 (BLUMENFELD ENTERPRISES) 5 exercise of the rights guaranteed them by Section 7 of our hiring hall for the 6-month period preceding his re- the Act. quest. WE WILL, on request, provide Yhya Mohamed with copies of our dispatch slips reflecting all referrals from THEATRE AND AMUSEMENT JANITORS UNION LOCAL 9, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO