Broadway, Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1998

325 N.L.R.B. 409 (N.L.R.B. 1998)

409
325 NLRB No. 62
K-BAR-B YOUTH RANCH
1 The General Counsel has excepted to some of the judge’s credi-
bility 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 363 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 We agree with the judge that the General Counsel has failed to
show, as alleged, that the Respondent discharged and suspended the
discriminatees because of a belief, albeit mistaken, that they were
engaged in protected concerted activity. We find it unnecessary to
rely on the judge’s alternative rationale that, even if the sick-out
were found to be protected concerted activity, the employees’ con-
duct was indefensible.
1 I have corrected the transcript by making physical inserts, cross-
outs, and other obvious devices to conform to my intended words,
without regard to what I may have actually said in the passages in
question.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
Broadway, Inc., d/b/a K-Bar-B Youth Ranch and
Gail Padgett. Case 15–CA–14035
March 6, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
On August 21, 1997, Administrative Law Judge
William N. Cates issued the attached bench decision.
The General Counsel filed exceptions and a supporting
brief, and the Respondent 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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I heard
this case in trial proceedings conducted in New Orleans,
Louisiana on July 28 , 29, and 30, 1997. At the conclusion
of trial proceedings, and after hearing oral argument by Gov-
ernment Counsel and Company Counsel, I issued a Bench
Decison pursuant to Section 102.35 (a)(10) of the National
Labor Relations Board’s Rules and Regulations, setting forth
findings of fact and conclusions of law, including my ulti-
mate conclusion that the complaint lacked merit and should
be dismissed.
For the reasons (including credibility determinations) stat-
ed by me on the record at the close of the trial, I found
Broadway, Inc., d/b/a K-Bar-B Youth Ranch (Company) did
not violate the National Labor Relations Act, as amended,
(Act) when on or about May 27, 1997 it terminated its em-
ployees William Pellegrin, Jennifer Pellegrin, and Tia Water-
man and suspended its employee Aimee Rojas. Accordingly
I dismissed the complaint.
I certify the substantial accuracy of the portion of the trial
transcript (pages 463–474, inclusive) containing my Deci-
sion, and I attach a copy of that portion of the transcript, as
corrected,1 as an ‘‘Appendix’’ hereto.
Exceptions may now be filed in accordance with Section
102.46 of the Board’s Rules and Regulations, but if they are
not timely or properly filed, Section 102.48 provides that my
Bench Decision shall automatically become the Board’s deci-
sion and order.
CONCLUSIONS OF LAW
The Company is an employer engaged in commerce within
the meaning of Section 2(2)(6) and (7) of the Act, and it has
not violated the Act in any manner alleged in the complaint.
ORDER2
The complaint is dismissed.
APPENDIX
463
. . . .
JUDGE CATES: On the record.
First, let me say that it has been a pleasure to be in New
Orleans, Louisiana. I always enjoy coming here.
Let me express my appreciation to counsel for the presen-
tation of the case. Both of you are a credit to the side you
represent.
And let me state that I admire greatly each of you who
are involved in the childcare business. I can think of no more
honorable or greater profession than to care for children who
might otherwise be without care. I’m convinced it takes a
special type person to perform such work, and I admire each
of you for your devotion and dedication to children of the
type that are cared for at the facility such as the one involved
herein and others that perform a like work.
It is in that light that sometimes tough cases make tough
decisions, but I deeply admire those of you who devote your
life to maintaining the health and care and hopefully the hap-
piness of children of this nature.
I find as follows:
I find that the charge in this case was filed on August 26,
464
1996, and was properly served on the parties herein there-
after.
I find that the Company herein, Broadway, Inc., d/b/a K-
Bar-B Youth Ranch, is engaged in the operation of a group
home for children that are in the protective custody of the
State of Louisiana.
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410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I further find that the Company in conducting its business
during the 12-month period preceding October 31, 1996, de-
rived gross revenues in excess of $100,000, and during that
same time frame, provided services valued in excess of
$50,000 for the State of Louisiana, which State is directly
engaged in interstate commerce.
I further find that the Company herein during that same
period purchased and received at its facility goods valued in
excess of $2,000 directly from points outside the state of
Louisiana.
Based on that admitted information, I find that the Com-
pany herein is an employer engaged in commerce within the
meaning of Section 2(2)(6) and (7) of the Act.
I further find that Mary Speed held the position at the
Company of executive director and that she was a supervisor
and agent of the Company within the meaning of Section
2(11) and 2(13) of the Act at all times material herein.
I base that finding not only upon the admission of the par-
ties, but also upon the fact that Mary Speed was the individ-
ual who fired the three individuals and suspended the
465
fourth one that are named in the complaint, and as such, she
has performed functions and duties that place her in the cat-
egory of a supervisor within the meaning of the Act, and the
actions that she testified to herself that she took with respect
to staff and with respect to employees certainly place her as
an agent of the company within the meaning of Section 2
(13) of the Act.
I allowed the General Counsel to amend out paragraph 9
of the complaint, which stated alternative to the pleadings set
forth above in paragraph 6 about May 23 1996 that certain
of Respondent’s employees, William Pellegrin, Jennifer
Pellegrin, Tia Waterman, and Aimee Rojas, employed at its
facility, ceased work concertedly and engaged in a strike.
The Government amended out that paragraph of the com-
plaint and makes no contention that the parties actually en-
gaged in a strike. That leaves the allegations of the complaint
to be as set forth in paragraphs 6, 7, and 8 of the complaint
which are that the Company mistakenly believed that since
on or about May 23, 1996, that certain of its employees,
William Pellegrin, Jennifer Pellegrin, Tia Waterman and
Aimee Rojas, ceased work concertedly and engaged in a
strike.
I’m also considering, although the General Counsel did not
amend that paragraph out of the complaint, I’m considering
that the allegations that they ceased work concertedly and en-
gaged in a strike, I’m not addressing that in my decision, be-
cause the strike part is not before me.
466
What is before me is that on or about May 27, 1996, the
Company terminated its employees, William Pellegrin, Jen-
nifer Pellegrin, Tia Waterman, and Aimee Rojas because the
Respondent mistakenly believed that the named employees
engaged in the conduct described above in paragraph 6, and
to discourage employees from engaging in these and the
other concerted activities.
I hope I’m making myself clear that I’m referring back to
paragraph 6, that whatever the employees did, the Company
believed that it amounted to either a strike or concerted work
stoppage, but because the Government withdrew the strike
part, I’m not relying on that part.
Now, what is the evidence and what are the conclusions
to be drawn therefrom? I heard testimony from at least three
of the named individuals, and they gave testimony as to why
they did not report for work on May 23, 1996. I also heard
testimony from the Charging Party in this case, Gail Padgett,
as to the conditions of her health on May 22 and May 23,
1996.
I only mention Ms. Padgett somewhat in passing because,
although she’s the Charging Party, the evidence indicates, by
her own testimony, that she was a supervisor and is not cov-
ered by the Act and engaged in—or at least the Government
does not contend that she engaged in any act that would be
a violation of the Act to discharge her.
Each of the three individuals who gave testimony as to
why
467
they did not report for work on May 23, 1996, gave health
reasons for doing so. Let me start with Ms. Padgett, because
I think it’s important to this case.
Ms. Padgett said that on the evening hours of May 22, she
went home because she was suffering from a migraine head-
ache. I credit her testimony that she had pain in the head.
As to whether we classify it as a migraine or a debilitating
headache or any of the other professional and medical terms
that were attributed to it herein, I believe Ms. Padgett that
she was suffering from a headache and went home for that
reason.
The other individuals, Mr. William Pellegrin, testified that
he had a stomach virus and had suffered from that the great-
er part of the week before Wednesday, May 22, 1996. I cred-
it his testimony that he had a stomach virus and that he went
home for that reason.
I do so in light of the fact and notwithstanding the fact
that he testified he did not throw up at work but threw up
before and after. I don’t find anything in that to detract from
his testimony.
Aimee Roj as, as I recall her testimony, stated that she had
had a very rough day and that she wasnt feeling very well
at all, and she wasn’t going to come in the next day.
Tia Waterman said that on the night of May 22, that she
was going to go home and take some medication, which I
believe she said was nonprescription medication for sinus
problems, and that
468
she didn’t anticipate being in the next day.
I credit each of these individuals, Aimee Rojas, William
Pellegrin, and Tia Waterman, that they were ill, sick, and
that they went home sick, and that they notified the employer
that they were sick and would not be at work the next day.
And those notifications came somewhere between the hours
of perhaps eleven o’clock in the evening and one o’clock the
early morning hours of May 23, 1996.
I’m not going to go behind their medical statements that—
or the statements about their medical condition that they
were sick and that each notified the employer they were sick.
Was there a conspiracy to call in sick in order to bring
about a disruption of the employer’s work, with an eye to-
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411K-BAR-B YOUTH RANCH
ward resolving any grievance or dispute that they had with
the Company? There is no question that, based on the cred-
ited testimony of William Pellegrin and—I keep forgetting—
Ms. Padgett and others, that there was a concern expressed
on the evening of May 22 that certain employees had not re-
ceived overtime that they contended they were entitled to.
And apparently the Company did not seriously dispute that
they were entitled to this additional overtime, because Ms.
Padgett went to the proper representative of the Company
and asked about the overtime, and was told that it was too
late to get it on that particular paycheck that the employees
had received that evening, but they would receive a corrected
469
paycheck on the next two-week pay that would be forthcom-
ing.
There are a lot of things that happened on the night of
May 22 which I’m not fully convinced were inextricably
intertwined to each other. Was there a conspiracy to call in
sick and engage in a work stoppage to protest the overtime?
I’m persuaded there was not, for this reason among others.
I credit the testimony of the individuals, with the excep-
tion of Jennifer Pellegrin who did not testify, that they were
sick and that that’s the reason they didn’t go to work. There-
fore, they were not protesting overtime; they were simply
sick, ill, unable to report to work.
The reason among others that I don’t question but rather
credit their testimony that they were sick is I’m fully con-
vinced that this is a very stressful form of work and that if
someone said they had a headache after working 16 hours in
this environment, I don’t think that there’s anything unbe-
lievable that they would contend they had a headache.
For someone to say they had a stomach virus while work-
ing around children, I don’t find anything unbelievable about
a person saying, I got an upset stomach. It’s not unreason-
able to believe that children suffer from this and that it can
be transmitted to adults.
I don’t question that in Southern Louisiana’s weather, that
someone would testify, I’ve got sinus problems. I don’t find
anything that’s unbelievable about that.
470
So I find that they were not withholding their services to
protest the failure to adequately or properly pay the overtime
that the employees perceived and perhaps the Company ac-
knowledged they were entitled to.
But that does not solve the issue or resolve the matter
here. These individuals called in late at night, late some-
where between 11:00 p.m. and 1:00 a.m., saying, We won’t
be in. And the Company is, in order to maintain its license,
required to keep a three-to-one ratio with the children en-
trusted to this Company’s care.
Therefore, when the responsible people learned the next
day that they were short four employees and a supervisor be-
cause of illness, it certainly put the facility at a disadvantage
if they’re going to comply with state requirements for main-
taining their license vis-a-vis maintaining a three-to-one ratio,
that is, one care provider for every three children.
Then the question comes, as the Government contends:
Did the Company mistakenly believe that the employees
were engaged in a concerted work stoppage in order to pro-
test work-related grievances and discharged the employees
for that reason?
To get to that point, you have to answer certain questions,
and the first is: Did the Company believe or perceive that
the employees in question were engaged in concerted activ-
ity? And I think the answer to that part of the equation is
a resounding yes.
471
Ms. Speed was informed that on the evening of May 22,
there had been laughing and partying and going after Cokes
in the facility at about eleven o’clock, and then shortly there-
after, the care provider in this case, the Company, received
word from these individuals that they’re sick and not coming
in to work, and that there had been some discussion among
them about calling in sick.
So I don’t have any problem in concluding, based on that
evidence and other, that the care provider knew or at least
perceived or believed, whichever one you want to put in
there—and I’ll use the complaint language, ‘‘perceived’’—
that the employees had engaged in concert or were acting in
concert.
The next question then becomes: Did the Company believe
or perceive that the concerted activity was activity protected
by the Act? And I’m persuaded the answer to that question
is no. The director of the facility, Ms. Speed, testified that
she believed they were engaging in a sick-out and that was
the only reason; she had no other motive for taking action
against them.
But she believed that they had acted in concert. Was she
wrongfully motivated under the Act? I find that the Com-
pany, based on the credited testimony of Speed, that she re-
lied solely on the fact that they had all called in sick, that
the Company was not wrongfully motivated in the action that
it took.
I base that on the fact that she had information that the
employees in question were conducting themselves in a man-
ner
472
that perhaps was inconsistent with the reasons they had
called in.
Then I come to the point that the Company’s stated reason
for discharging the three individuals and suspending the
other, the Government contends, is different from what was
stated in their termination notices, and further that the Com-
pany did not follow its normal procedure in that it discharged
these individuals statedly for not following the proper proce-
dure for call-in.
While there was unrefuted evidence on this record that
others had violated that call-in policy and had not been ter-
minated, therefore the Government would ask that I draw a
conclusion from that contrary to Director Speed’s stated mo-
tive for discharging the individuals.
I reject the Government’s request in that respect, because
I do not see a great inconsistency between what was told
verbally and what was produced in writing to the individuals.
And, furthermore, even if she discharged individuals for indi-
vidually being sick and they were, in fact, sick, such does
not violate the Act.
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412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
So I find that the Government has failed to establish one
of the four elements that are necessary, and that is motiva-
tion. There was certainly adverse action, but it was not,
based on the credited testimony of Speed, unlawfully moti-
vated.
But even if the sick-out was concerted activity protected
473
by the Act, in that if the work stoppage herein constituted
conduct protected by the Act, i.e., that the employees with-
held their services via sick-out to protest their treatment re-
garding the improper overtime payment, I would find further,
if that were the case, that the conduct of the individuals in-
volved is indefensible in the light of the facts herein, which
is that this is a company that provides care to children who
are at risk and the individuals gave notification late at night,
near midnight, on May 22 that they would not be coming to
work the next day.
I find such, if it could be concluded that their conduct was
concerted protected activity, would be of a nature that would
be indefensible and would be an exception to the Company
discharging individuals for engaging in concerted protected
activity.
If those at risk herein were other than children, might be
persuaded otherwise, but not where children who are already
at risk are placed in the potential of being further at risk, ei-
ther to themselves or others. If it were concluded that the
employees herein were engaging in concerted protected ac-
tivity and/or that the Company perceived they were engaging
in concerted activity that is protected by the Act, I’d find
that the employees could easily have pursued their acknowl-
edged overtime problems in a manner that did not place chil-
dren in potential and/or imminent danger.
474
And for the reasons previously stated, I shall dismiss the
complaint allegation that the Company on or about May 27,
1996, terminated its employees William Pellegrin, Jennifer
Pellegrin, Tia Waterman, and suspended its employee Aimee
Rojas, and in dismissing that portion of the complaint, I shall
go further and dismiss the complaint in its entirety.
I advise the parties that I will, once the court reporter has
provided me with a transcript of these proceedings, I will
certify those pages of the transcript that constitute my deci-
sion, and I will serve that on all the parties, and it is my
understanding that any appeal period runs from that point in
time.
But please be advised that you are to consult the Board’s
rules and regulations with respect to taking exceptions and
not rely on my understanding of the rules and regulations.
I try to certify the decision as reasonably soon after I receive
it as I can do so. However, at the present, because of a short-
age of Judges and because of vacation time, we are doing
a bit more traveling, each of the Judges, not just myself.
Again, let me state that it has been pleasant to be in New
Orleans, and this trial is closed.
(Whereupon, at 3:08 p.m., the hearing in the above-en-
titled matter was concluded.)
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