NOTICE:  This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions.  Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C.  20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

SEIU Healthcare Workers West (Kaiser Foundation Health Plan, Inc., et. al) and Charles Barnes.  Case 32–CB–5893–1

April 17, 2007

DECISION AND ORDER

By Members Schaumber, Kirsanow, and Walsh

On December 7, 2006, Administrative Law Judge William L. Schmidt issued the attached decision.  The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has delegated 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,1 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, SEIU Healthcare Workers West, Walnut Creek, California, its officers, agents, and representatives, shall take the action set forth in the Order.

Dated, Washington, D.C.   April 17, 2007

 

______________________________________

Peter C. Schaumber,                 Member

 

______________________________________

Peter N. Kirsanow,                                   Member

______________________________________

Dennis P. Walsh,                                     Member

 

(seal)            National Labor Relations Board

 

Judith J. Chang, Esq., for the General Counsel.

Bruce A. Harland, Esq. (Weinberg, Roger & Rosenfeld), of Alameda, California, for the Respondent.

DECISION

Statement of the Case

William L. Schmidt, Administrative Law Judge.  This case involves the suspension and removal of Charles Barnes (Barnes or Charging Party) as a shop steward for Environmental Services Department (EVS) employees represented by SEIU United Healthcare Workers West (Union or Respondent) at the Kaiser Foundation Hospital in Walnut Creek, California.

Barnes filed this unfair labor practice charge on December 23, 2004.  He subsequently amended it on February 18, and March 30, 2005.1  The Regional Director for Region 32 of the National Labor Relations Board (NLRB or Board) issued a formal complaint pursuant to Section 10 of the National Labor Relation Act (Act) alleging that the Union violated Section 8(b)(1)(A) when its agent told its worksite stewards on February 10 that they had a duty to suspend Barnes for filing an NLRB unfair labor practice charge against the Union.  The complaint also alleges that that Respondent violated the same section by Barnes’ suspension and his subsequent permanent removal as a steward.  Respondent filed a timely answer denying the unfair labor practices alleged.

I heard this case at Oakland, California, on August 29, 2006.  The General Counsel and Respondent submitted posthearing briefs.  Based on the parties’ arguments, the hearing record, and my credibility determinations,2 I have concluded that Respondent violated the Act, as alleged, based on the following

Findings of Fact

i.  jurisdiction

The Kaiser system consists of the Kaiser Foundation Health Plan, Inc. (Kaiser) which provides prepaid health care services to individuals and groups, Kaiser Foundation Hospitals (Hospitals) which provide hospital facilities and services to Kaiser, and the Permanente Medical Group, Inc. (Permanente) which provides medical services to Kaiser.  Kaiser and Hospitals are California nonprofit corporations.  Permanente is a California corporation comprised of member physicians.  In the 12-month period preceding the issuance of the complaint, Kaiser, Hospitals, and Permanente each received gross revenues in excess of $250,000.  In the same period, Hospitals and Permanente each provided services to Kaiser valued in excess of $250,000.  And in that same period, Kaiser, Hospitals, and Permanente each purchased and received goods and materials valued in excess of $5000 that originated outside the State of California.  Based on the foregoing, I find that Kaiser, Hospitals, and Permanente are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that it would effectuate the purposes of the National Labor Relations Act for the Board to resolve this labor dispute.  I also find that the Union is a labor organization as defined in Section (5) of the Act.

ii.  alleged unfair labor practices

A.  Relevant Facts

Barnes began working in the EVS department at the Walnut Creek Kaiser Hospital (Walnut Creek Kaiser) in 2001.  During his tenure, Barnes has had two lengthy disability periods.  At relevant times, Barnes worked as a “24-hour float,” a job requiring that he substitute for absent employees.  About 150 employees work in the EVS department.

The Union represents 1500 Walnut Creek Kaiser employees.  The Union’s shop stewards there provide the front-line union representation.  About 40 employees serve as stewards, including seven chief stewards.  Collectively, these stewards constitute the Walnut Creek Kaiser stewards’ council (council).  The council meets once a month to provide steward training, to disseminate and obtain information about Union and hospital operations that may affect their work, and to discuss pending grievances and other relevant matters connected their representational functions.3  The council operates under written guidelines known as the Kaiser Division steward council structure and policies.  This policy document specifies minimum steward qualifications and contains procedures for the council to remove a steward from office.4  Greg Tegenkamp, the union staff representative/organizer responsible for overseeing union business at Walnut Creek Kaiser, attends and coordinates the monthly council meetings.  Lover Joyce, then a chief steward, began chairing council meetings in March 2005.5

The EVS department has five stewards, including chief steward, Sammie Garrett.  EVS employees elected Barnes as a shop steward in 2002.  Barnes then completed the Union’s steward training program and became a functioning steward.  Although Barnes represented a number of EVS employees, he had no occasion to file a grievance on behalf of an employee prior to his suspension in 2005.  However, he caused five grievances to be filed on his behalf.

The dispute that eventually led to Barnes’ initial grievance began shortly after he returned from a medical leave in late 2002.  Upon his return, Marie Bates, his supervisor and herself a former steward, assigned him repeatedly to outside trash duties.  Barnes met with Bates several times about these assignments.  He argued that the contract required that this work be assigned to less senior employees and, in any event, that his disability made it difficult for him to perform this work.  On at least one occasion, Tina Lynch, another EVS steward met with Barnes and Bates about this issue but they reached no lasting resolution.  Instead, Bates continued to assign Barnes to this work once or twice a week for the next several months.

After a while, Barnes sought out Alisha Blinks, a steward in the communications department to file a grievance on his behalf.  He chose Blinks because he knew of her reputation as an excellent steward.  Initially, Blinks felt reluctant to act on Barnes’ behalf because she did not work in the EVS department but she finally relented to Barnes’ insistence after receiving the okay from EVS chief steward, Garrett, and Michael Daly, her chief steward.  However, they insisted that Blinks keep them both informed about her work on Barnes’ behalf.  Having received the approval of the chief stewards involved, Blinks finally filed Barnes’ trash-assignment grievance in January 2004.6

Shortly thereafter, Barnes received another of the disputed trash assignments.  When he protested, Bates directed him to either do the work or punch out and go home.  Barnes elected to go home.  After learning that he lost the day’s pay, Barnes contacted Blinks who filed another grievance on his behalf seeking backpay for that particular day.  Later, she filed three more grievances on Barnes’ behalf but the reasons for these added grievances are not known.

In the meantime, Barnes also filed an unfair labor practice charge against the Union in Case 32–CB–5737 on February 9, 2004.  It alleged that the Union had failed to fairly represent him “in conjunction with a grievance against Kaiser . . . Walnut Creek.”  The precise reason Barnes filed this charge is not known.  However, some discord arose between Barnes, Blinks, and Tegenkamp during the processing of Barnes’ grievances.  Thus, Blinks sought some unspecified information from EVS Supervisor Bates claiming that she needed it to properly process Barnes’ grievances.  Bates refused to provide the information and when Blinks continued to insist on it, Bates told her (as well as Barnes and the EVS chief steward) that Tegenkamp agreed that she need not provide it.  Regardless, on April 12, Barnes withdrew Case 32–CB–5737 after becoming satisfied that the Union would properly represent him.

By late October or early November 2004, all five of Barnes’ grievances had reached step two of the grievance procedure and the parties scheduled a meeting to deal with them.  Tegenkamp, Blinks, and Barnes met with management representatives to discuss Barnes’ pending grievances.  When the meeting began to break up after a discussion of everything except the lost pay grievance, Blinks and Barnes requested to caucus with Tegenkamp.  During this caucus, the two stewards insisted that Tegenkamp also take up the pay grievance with management. Tegenkamp claimed to know nothing about the pay grievance but agreed to meet further with management about this added grievance.  At the end, the step two meeting failed to achieve any resolution satisfactory to Barnes.  Shortly afterward, Barnes was injured in an auto accident and he again went on a disability leave.  That leave lasted until July 2005.

Seemingly still dissatisfied with Tegenkamp’s efforts, Barnes filed a instant unfair labor practice charge against the Union on December 23, 2004.  The charge alleged that the Union conspired with management “to deny rights under the contract” but, as detailed below, Barnes twice amended the charge and the original substance of the charge became submerged by the events that followed.  The language of the original charge strongly suggests that Barnes’ motive for resorting to the NLRB grew out of the perception harbored by Blinks and himself that Tegenkamp adamantly blocked access to information they sought from Bates.

Tegenkamp became aware of the December NLRB charge shortly after it was filed.  He decided to take that matter up at the February 10 council meeting.  Tegenkamp began his presentation by reading from various provisions of the Kaiser Division stewards’ council structures and policies document including the provision related to the revocation or suspension of a steward’s authority.  After that, Tegenkamp began talking about Barnes’ new NLRB charge.  Although he professed that he did not know originally what the charge related to, he later learned that it concerned the Union’s failure to deal with Barnes’ grievance about the trash duty assignments.  Tegenkamp read the NLRB charge to the council members, distributed copies of it to them, and rhetorically questioned why Barnes would make such a charge when he knew it was not true.  He then told the assembled stewards that the charge was a public record which could be accessed, and used, by employers the Union was attempting to organize.7  Referring to the charge, Tegenkamp told the stewards that “this person” has nothing to do except go down and file an NLRB charge a couple of days before Christmas.  Tegenkamp then told the stewards that they had the right to suspend and get rid of Barnes “for filing these charges at the NLRB.”  The council proceeded to suspend both Barnes and Blinks.  Following the meeting, Dwight Johnson reported to Barnes that he as well as Blinks had been suspended as stewards.8

In a letter dated February 14, Tegenkamp formally notified Barnes that his authority to act as a SEIU steward had been suspended “[p]ursuant to the . . . Stewards Council’s Policies and Guidelines.”  Although the letter invited Barnes to attend the March 10 meeting “for the limited purpose of presenting any information you may have that might influence the council in making its final decision” about permanently revoking or restoring his authority, it gave no reason for the suspension or otherwise address the issues that would be treated with it at the March 10 meeting.  The letter warned that if he failed to attend on March 10, “the Council will revoke your authority.”9

On February 18, Barnes amended his pending NLRB charge.  In addition to the initial allegation that Tegenkamp had interfered with the processing of his grievance, the February 18 amendment alleged that the Union, acting through Tegenkamp, suspended Barnes from his duties as an elected steward because he filed the original charge.

Meanwhile Blinks made arrangements through Lover Joyce to appear at the March 10 council meeting with Barnes to defend their actions.  Following a minor brouhaha on the day of the meeting, Joyce relented to the insistence by Barnes and Blinks that they appear jointly before the council.  During their appearance, Barnes and Blinks fielded questions asked randomly by the stewards in attendance.  The substantive accounts provided by Barnes and Blinks differ considerably from the accounts provided by Tegenkamp and Joyce.

Barnes overheard a steward quiz Blinks about the situation in the EVS department.  She criticized Tegenkamp (apparently as she had done on several prior occasions) for blocking efforts to obtain information from Supervisor Bates that she considered essential to processing Barnes’ grievances.  Tegenkamp shouted a response.  Joyce asked both of the suspended stewards if they wanted to continue as stewards and both said that they did.

Another steward asked Barnes if he had filed an NLRB charge against the Union and whether he would do it again.  Barnes replied “yes” to both questions.10  Those answers provoked loud sighing from the audience.  One of the stewards then accused Barnes of hurting the Union because of the costs incurred in defending against the charge.  Another told Barnes that a “true shop steward” would never file an NLRB charge against the Union.

Joyce and Tegenkamp both claim that Barnes voluntarily resigned as a steward when he appeared at the March 10 meeting.  By their accounts, Joyce asked Barnes if he still wanted to be a steward.  Purportedly, Barnes said that he saw no point in being a steward because the Union’s structure, constitution and bylaws, and the steward guidelines did not work for him so he was resigning.  In response, Joyce purportedly said “that was easy” and Barnes then left.  Barnes emphatically denied that he resigned.

The accounts of Joyce and Tegenkamp about the March 10 meeting strike me as very improbable.  Barnes’ conduct reflects a more combative stance.  Thus, he amended his NLRB charge to protest his suspension, joined Blinks to attend the March 10 meeting even though he remained on a disability leave, and then fought with Joyce (and perhaps Tegenkamp) over appearing jointly with Blinks before the steward’s council.  Yet later on March 30, Barnes again amended his NLRB charge to allege that his removal as a steward was unlawful.  For these reasons, and as I earlier explained other reasons for discrediting Tegenkamp where his testimony conflicted with that of Barnes and Blinks, I do not credit the claim that Barnes voluntarily resigned as a steward when he appeared at the March 10 meeting.

As the meeting progressed it became little more than a shouting match that ended only when one of the stewards called upon Joyce to conduct the reinstatement vote.  Joyce asked the two suspended stewards if they wanted the council to vote.  Blinks requested a vote but Barnes disputed the council’s authority to remove him because the employee-members in his work area had elected him to be their steward.  With that, Joyce asked Barnes and Blinks to leave while the council voted.  They complied and waited outside the meeting room until the meeting ended.  When stewards began emerging from the meeting, Barnes and Blinks learned that the council voted for their removal.11  However, neither received a notice of any kind from the Union about the outcome of the council vote.

B.  Analysis and Conclusions

Section 8(b)(1)(A) provides that it is an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of the rights guaranteed in Section 7.  However, the proviso to Section 8(b)(1)(A) guarantees the right of a labor organization “to prescribe its own rules with respect to the acquisition or retention of membership.”

By adding Section 8(b)(1)(A) to the Act in 1947, Congress sought to impose the same restrictions upon unions that the Wagner Act imposed on employers with respect to violating employee rights.  Garment Workers v. NLRB (Bernard-Altman Texas Corp.), 366 U.S. 731, 738 (1961).  Although the 8(b)(1)(A) proviso “assures a union freedom of self-regulation where its legitimate internal affairs are concerned,” any coercion used to discourage, retard, or defeat access to the Board is beyond the legitimate interest of a labor organization.  NLRB v. Industrial Union of Marine & Shipbuilding Workers of America, AFL–CIO, 391 U.S. 418, 424 (1968).  Clearly, a union may sanction or remove an employee-steward from office for dereliction of duty as a steward but it may not lawfully discipline or remove a steward for filing a charge with the Board.  General American Transportation Corp., 227 NLRB 1695–1696 (1977), enf. denied 581 F.2d 473 (5th Cir. 1978).12

In this case, Respondent makes no claim that it had a legal right under the 8(b)(1)(A) proviso to punish Barnes for filing an NLRB charge.  Instead, it asserts that the council suspended Barnes in February for other, legitimate reasons, and that he voluntarily resigned his steward’s position at the March meeting.  Since these assertions and the supporting testimony places the motive for the actions taken against Barnes at those meetings in question, Respondent argues that this case must be analyzed under Wright Line,13 rather than under Shipbuilders.  Although I agree that Respondent’s evidence requires a Wright Line analysis (see e.g., United Mine Workers (Reitz Coal), 282 NLRB 106 fn. 3 (1986)), that case and Shipbuilders are mutually exclusive.  Thus, if the General Counsel meets his Wright Line burden and Respondent fails to show that it would have taken the same action regardless of the protected activity involved, the unlawful motive is proven.  In cases of this type, if a union’s motive is shown to be retaliation for the filing of an NLRB charge, then Shipbuilders would support a conclusion that it violated 8(b)(1)(A).  See Denver Newspaper & Graphic Communications Local 22, 338 NLRB 130 (2002).

The General Counsel established a compelling case that Barnes’ suspension and removal was motivated by the unfair labor practice charge that he filed in December 2004.  Barnes unquestionably filed the charge and Tegenkamp admitted that he knew about the charge prior to the February 10 meeting.  Blinks credibly testified that Tegenkamp brought the matter up at the February 10 meeting, distributed copies of the charge to members of the council, and called attention to their authority under the guidelines to suspend and remove stewards, and suggested that they should do so in this case.14  Tegenkamp admitted that he had made prehearing statements to the General Counsel that corroborated much of Blinks’ hearing testimony.  The February 14 letter to Barnes establishes that the council, in fact, suspended Barnes.  Even though the letter fails to address the specific reason for Barnes’ suspension, these circumstances create a compelling basis for inferring this action by the council resulted from Tegenkamp’s report about the NLRB charge and his suggestion that Barnes be suspended.  Similarly, counsel for the General Counsel adduced credible evidence that council members questioned Barnes at the March 10 meeting about filing an NLRB charge and disparaged him for doing so before voting for his removal.

Respondent asserts that the council suspended Barnes because he abused his office by using his steward’s position “for his own personal benefit” and failing to properly handle grievances, and because he exhibited disdain for the structure of the council by refusing to follow the “proper protocol for shop stewards.”  These claims apparently allude largely to the fact Barnes filed no grievances on behalf of other employees and arranged to have grievances filed on his behalf by Blinks rather than another steward from the EVS department.  The Union provided no evidence that Barnes’ conduct in connection with pursuing his own grievances violated any Union protocol or even offended anyone within the union structure at least until he filed the offending NLRB charge.  His initial trash assignment grievance that Blinks filed drug on for a year but Respondent failed to adduce any evidence that anyone objected to this representation arrangement until Tegenkamp accused Blinks of serving as Barnes’ “personal steward” in a January 2005 e-mail following Barnes’ latest NLRB charge.  By contrast Blinks and Barnes credibly testified, without contradiction, that they kept both of their chief stewards fully informed about their grievance activities and both chief stewards concurred with their activities.  In short, the claim that Barnes abused his steward’s position, failed to properly handle grievances and exhibited disdain for the Union’s protocols are supported only by Tegenkamp’s bare assertions.  Moreover, the Union’s own guidelines provide for the removal of a steward by a worksite council where “compliance problems cannot be resolved.”  There’s not a scintilla of evidence that any Union official or agent addressed any protocol problem with Barnes prior to Tegenkamp’s sudden and unannounced assault on the absent Barnes at the February 10 council meeting.

I find, therefore, that Respondent failed to prove that its council suspended and removed Barnes for abusing his steward’s position in any manner and that assertions to that effect are a pretext designed to mask its retaliation against Barnes for filing an NLRB charge.  Where, as here, a respondent’s affirmative defense amounts to a pretext, it not only fails to meet its Wright Line burden, it also lends added support for a finding that the adverse action at issue was unlawfully motivated.  Jet Star, Inc. v. NLRB, 209 F.3d 671, 678 (7th Cir. 2000).  For these reasons, I find that Respondent violated the Act as alleged in the complaint.

Conclusions of Law

1.  The Respondent is a labor organization within the meaning of Section 2(5) of the Act.

2.  By Tegenkamp’s conduct in urging the council to suspend Barnes, and by the council’s conduct in suspending and then removing Barnes from his position as a steward at the Kaiser Foundation Hospital in Walnut Creek, California, Respondent engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act.

Remedy

Having found that Respondent engaged in an unfair labor practice within the meaning of Section 8(b)(1)(A) of the Act, my recommended Order requires that Respondent cease and desist there from and that it take certain affirmative action to effectuate the policies of the Act.

As Respondent unlawfully removed Barnes from his steward position, my recommended Order requires Respondent to immediately offer to reinstate him to his former steward’s position with all rights and privileges he previously enjoyed in that position, or if that position no longer exists, to a substantially equivalent position.

On these findings of fact and conclusions of law and on the entire record, I issue the following recommended15

ORDER

The Respondent, SEIU United Healthcare Workers West, Walnut Creek, California, its officers, agents, and representatives, shall

1.  Cease and desist from

(a) Urging its stewards’ council to suspend a fellow steward for filing an unfair labor practice charge with the National Labor Relations Board.

(b) Suspending or removing any steward from his/her position for filing an unfair labor practice charge with the National Labor Relations Board.

(c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act.

2.  Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Offer Charles Barnes immediate reinstatement to his former position as a steward at the Kaiser Foundation Hospital in Walnut Creek, California, with all rights and privileges previously enjoyed in that position or, if that position no longer exists, to a substantially equivalent position.

(b) Within 14 days after service by the Region, post at its union office in Oakland, California, copies of the attached notice marked “Appendix.”16  Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 covered by any other material.

(c) Sign and return to the Regional Director sufficient copies of the notice for posting by the Kaiser Foundation Hospital in Walnut Creek, California, if willing, at all places where notices to employees are customarily posted.

(d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

Dated, Washington, D.C.   December 7, 2006

APPENDIX

Notice To Members and Employees

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 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 on your behalf with your employer

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

 

We will not urge our stewards’ council to suspend a steward for filing an unfair labor practice charge with the National Labor Relations Board.

We will not suspend or remove any steward from his/her position for filing an unfair labor practice charge with the National Labor Relations Board.

We will not in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act.

We will offer Charles Barnes immediate reinstatement to his former position as a steward at the Kaiser Foundation Hospital in Walnut Creek, California, with all rights and privileges previously enjoyed in that position or, if that position no longer exists, to a substantially equivalent position.

 

SEIU Healthcare Workers West

 

 


1 The Respondent has excepted to some of the judge’s credibility findings.  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.

2 The judge cited General American Transportation Corp., 227 NLRB 1695, 1695–1696 (1977), enf. denied 581 F.2d 473 (5th Cir. 1978), for the principle that a union may not lawfully discipline or remove a steward for filing a charge with the Board.  With regard to this principle, see also Graphic Communications Local 22 (Rocky Mountain News), 338 NLRB 130, 130–131 (2002) (finding coercive and unlawful the union’s filing of an internal charge against a union member in retaliation for his filing of a charge with the Board against the union); and Auto Workers Local 212 (Chrysler Corp.), 257 NLRB 637 (1981), enfd. 690 F.2d 82 (6th Cir. 1982) (finding unlawful the union’s removal of a member from his position as chair of a union committee because he filed a Board charge against the union).

1 Unless shown otherwise, all further dates refer to the 2005 calendar year.

2 The following factors inform my credibility findings: the opportunity to be familiar with the subjects covered in the testimony given, established or admitted facts, witness bias, testimonial consistency, corroboration, the strength of any rebuttal evidence, inherent probabilities, reasonable inferences available from the record as a whole, the weight of the evidence, and witness demeanor.  Critical credibility resolutions are explained in more detail below.

3 Typically, the council meetings last all day and, by agreement with the employer, they are held at the Walnut Creek Kaiser facility.

4 The steward council’s policies and guidelines (R. Exh. 3: 6) contains this provision relating to the revocation or suspension of a steward’s authority:

The appropriate Steward’s Council . . . is responsible to enforce the guidelines and policies for stewards.  Where compliance problems cannot be resolved, the Council shall have the authority to revoke or suspend the steward’s authorization to act for or on behalf of the Union.  Any such suspension or revocation by the worksite steward’s council (as opposed to a recall by members in the steward’s work area) may be appealed to the [division-wide steward’s council] for a final disposition.

5 Following the March 10 meeting, Joyce was elected as the Union’s executive board vice president.

6 Prior to her suspension as a steward in February 2005, Blinks had been a steward for about 4 years.  During that time, she had filed grievances on behalf of several other employees outside of her department.

7 Tegenkamp claimed during a 611(c) examination by counsel for the General Counsel that he actually did not recall whether he made this particular statement at the February 10 meeting or an earlier meeting.  During the 611(c) examination, counsel for the General Counsel alluded a few times to statements Tegenkamp made in an affidavit provided to the General Counsel’s office in May 2006 after being served with a subpoena.  He acknowledged that he had stated in the affidavit that this statement had been made at the February 10 meeting.  Based on my observations, I concluded that Tegenkamp made a considerable effort to hedge on this and several other statements he obviously made in his May 2006 affidavit.  His demeanor during this critical questioning has caused me to disregard Tegenkamp’s testimony about the February and March 2005 council meetings where it conflicts with that of Barnes and Blinks.

8 Barnes did not attend the February 10 meeting due to his disability leave.  No evidence shows that Barnes knew that the council would address his conduct at this meeting.  Blinks walked out in protest when Tegenkamp began discussing Barnes’ NLRB charge.  Johnson, a steward, also protested the fairness of considering issues about Barnes in his absence.

9 Blinks received an e-mail from Tegenkamp on February 12 setting out similar information.  That e-mail says that the council had voted unanimously to suspend her.

10 Blinks corroborated Barnes’ testimony about being questioned at the March meeting concerning the NLRB charge he filed.  In view of Tegenkamp’s acknowledgement that he discussed the charge at some length at the February 10 meeting, I find it highly probable that stewards at the March meeting questioned Barnes about the NLRB charge.

11 Even though the evidence suggests that Blinks’ situation is closely linked to that of Barnes, counsel for the General Counsel specifically stated that she sought no remedy on behalf of Blinks for her suspension and removal as a steward.

12 In Office Employees Local 251 (Sandia National Laboratories), 331 NLRB 1417 (2000), the Board engaged in a comprehensive discussion of the scope of Sec. 8(b)(1)(A).  Without reference to the refusal of the court of appeals to enforce the Board’s order in General American Transportation, the Board nonetheless reiterated the general principle based on Shipbuilders that Sec. 8(b)(1)(A) “proscribes conduct against union members that directly impedes access to the Board’s processes.”  Id. 1424.

13 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982).

14 Complaint par. 6(a) alleges that Tegenkamp told the shop stewards at the February 10 council meeting “that it was their duty to suspend” Barnes’ privileges and duties as a shop steward.  Whether Tegenkamp used this precise language is not altogether clear.  However, it is abundantly clear that Tegenkamp, in effect, urged the council members to suspend Barnes.  I find this conduct analogous to that alleged in complaint par. 6(a).

15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.

16 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 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.”