Carmel Convalescent Hospital

National Labor Relations Board - Board Decisions

Sep 19, 1980

252 N.L.R.B. 274 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monterey Carmel Convalescent, Inc., d/b/a Carmel
Convalescent Hospital and Nancy R. Larsen,
Petitioner and Hospital and Institutional Work-
ers Union, Local 250, Service Employees Inter-
national Union, AFL-CIO. Case 32-RD-179
September 19, 1980
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Pursuant to a Decision and Direction of Election
issued on October 2, 1979, an election by secret
ballot was conducted on October 30, 1979, in a unit
composed of all full-time and regular part-time em-
ployees employed by the Employer at its Carmel,
California, facility, excluding all registered nurses,
office clerical employees, guards, and supervisors
as defined in the Act. At the conclusion of the
election, the parties were furnished a tally of bal-
lots which showed that of approximately 73 eligi-
ble voters 19 cast ballots for the Union, 27 cast bal-
lots against the Union, and 2 cast challenged bal-
lots.
On November 2, 1979, the Union filed and
served on the parties nine objections to conduct af-
fecting the results of the election. Following an in-
vestigation, the Acting Regional Director for
Region 32, on December 31, 1979, issued a Supple-
mental Decision, Order and Direction of Second
Election, wherein he overruled Objections 1
through 8, sustained a portion of Objection 9, and
directed a second election.
Thereafter, the Employer filed a request for
review of the Acting Regional Director's decision.
The Board, by telegraphic orders on February 21
and 22, 1980, granted the request for review and
directed that a hearing be held with respect to Ob-
jection 9. Such hearing was conducted on March
28, 1980, and, on June 19, 1980, the Hearing Offi-
cer issued his Report and Recommendation on Ob-
jections wherein he concluded that there was merit
to the objection and recommended that the election
be set aside and a new election held. Thereafter,
exceptions and a supporting brief were filed with
the Board by the Employer and a brief was filed
by the Union.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
i Counsel for the Employer, by letter dated July 22, 1980, filed with
the Board a motion to strike certain assertions made in the Union's brief
by counsel for the Union. Inasmuch as the assertions are contrary to the
record testimony, the motion is hereby granted. Valley Iron & Steel Co.,
224 NLRB 866 (1976).
252 NLRB No. 41
The Board has reviewed the record in light of
the exceptions and briefs, and hereby adopts the
Hearing Officer's findings and recommendations
only to the extent consistent herewith.
Objection 9 concerns the alleged failure of the
Board agent conducting the election adequately to
instruct the Union's observer, Ahren, at the morn-
ing voting session, on the proper challenge proce-
dures which thereby caused the observer to believe
that a failure or refusal to initial a voter's name on
the eligibility list constituted a challenge of that
voter.
The record shows that at the preelection confer-
ences the Board agent's instructions were fully ade-
quate, covering all essential points, including the
challenge ballot procedure. Ahrens testified that
the Board agent "explained things very well," but
that she did not understand because of inattention
and nervousness. At some point after balloting had
begun, Ahrens "may have" told the Board agent
that she intended to challenge voters she did not
recognize, and she admittedly was under the im-
pression that her refusal to place her initials on the
eligibility list next to the names of such voters con-
stituted a challenge of these voters.
During the election she refused to initial the eli-
gibility list some 10 to 15 times and, when this oc-
curred, the Board agent againtold her, as he previ-
ously had instructed all observers, that she could
ask for identification. When identification was
sought and corresponded with that name on the
list, Ahrens nevertheless continued to refuse to ini-
tial the voter's name. The record shows also that
upon a number of such occasions the Board agent
specifically asked Ahrens if she wished to chal-
lenge without receiving an affirmative response. 2
Thus, it is clear that the Board agent gave Ahrens
the opportunity clearly and unambiguously to
"challenge" and that she declined to do so.
The Hearing Officer found that Ahrens intended
to challenge and that the Board agent reasonably
should have construed her refusals to initial the
voters' names on the eligibility list as constituting
challenges.
We do not agree. It is well settled that an ob-
server should indicate clearly an intent to chal-
lenge, and that in the absence of such clarity, par-
ticularly when the question specifically is asked by
the Board agent and there is no affirmative re-
sponse, the Board agent cannot reasonably be ex-
2 There is no evidence that any ineligible voter was permitted to vote.
None of the dozen or so individuals sought to be challenged were among
those whose eligibility was in dispute at the conference the day before
the election, with one possible exception; and the two voters who voted
challenged ballots in the afternoon were challenged properly.
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CARMEL CONVALESCENT HOSPITAL
pected to interpret the observer's conduct as con-
veying an intent to challenge. 3
In view of the foregoing, we find that the Board
agent correctly handled the voting procedures at
the election. Inasmuchas the two challenged ballots
are insufficient to affect the results of the election,
we shall, accordingly, certify the results of the
election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Hospital and Institu-
tional Workers Union, Local 250, Service Employ-
ees International Union, AFL-CIO, and that said
labor organization is not the exclusive representa-
tive of all the employees, in the unit herein in-
volved, within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.
3 H L Distributing Company, 206 NLRB 169 (1973); Fern Lborato-
ries. Inc., 232 NLRB 379 (1977); Computer Sciences Corporation Applied
Technology Division. Aerospace Systems Center, 234 NLRB 1163 (1978),
enfd 589 F.2d 232 (5th Cir. 1979).
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This
matter was heard before me in Phoenix, Arizona, on
May 6 and 7, 1980. The complaint, issued December 28
and based on charges filed November 13 and December
17, 1979, by Warren J. McCarty, an Individual, alleges
that Respondent, Alfred M. Lewis, Inc., has engaged in
unfair labor practices within the meaning of Section
8(aX3) and (1) of the Act. Briefs have been submitted by
the General Counsel and Respondent and have been
carefully considered.
Upon the entire record in the case, and from my ob-
servation of the witnesses including their demeanor, I
make the following:'
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Alfred M. Lewis, Inc., a California corporation, main-
tains an office and place of business at Phoenix, Arizona,
where it is engaged in the wholesale sale and distribution
of dry groceries, refrigerated foods and related products.
It annually purchases and causes to be transported in in-
terstate commerce and delivered to its place of business
in Arizona groceries and other items valued in excess of
S50,000 directly from suppliers located in States other
than the State of Arizona. I find that the operations of
Respondent affect commerce within the meaning of Sec-
A post-hearing motion by the General Counsel to correct the record
in 33 respects, dated May 30, 1980 and unopposed, is hereby granted. It
may be noted that a reference therein to p. 272 is actually to p. 275.
tion 2(6) and (7) of the National Labor Relations Act, as
amended.
II. THE LABOR ORGANIZATION INVOLVED
Transport & Local Delivery Drivers, Warehousemen
& Helpers, Local No. 104, an affiliate of the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, herein the Union, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; The Issue
The sole issue herein is whether Respondent in August
1979 denied employee Warren J. McCarty 2 a 15-minute
break, and whether Respondent thereafter, about Sep-
tember 17 and 20, discriminated against and discharged
McCarty because he asserted rights under the collective-
bargaining agreement between the Union and Respond-
ent. According to Respondent, he was discharged solely
because he had stolen production time at work or, stated
otherwise, had falsified production records by claiming
payment for work not actually performed by him. As
found below, the evidence preponderates in favor of Re-
spondent's position.
B. Sequence of Events
The warehouse and trucking employees of Respondent
are represented for the purposes of collective bargaining
by the Union and, at the time relevant herein, a 3-year
collective-bargaining agreement covered the term from
March 1, 1978, up to and including February 28, 1981.
McCarty initially entered the employ of Respondent
on February 20, 1978, as a part-time employee on the
night shift. Approximately I month later, he became a
full-time employee on the night shift in the grocery
warehouse and, during the months of July, August, and
September 1979, he was employed principally in the to-
bacco, candy and repack rooms of the grocery ware-
house. His starting time for the night shift commenced at
2 p.m., and he was under the primary supervision of Su-
pervisor Randy Baughman.
Article XI of the contract treats with meal and break
periods and generally provides that during an 8-hour
shift employees are entitled to two rest breaks, each of
15 minutes duration, which are compensated, and also to
a 1/2-hour lunchbreak, which is not compensated. Em-
ployees who work overtime past 8 hours are entitled to
an additional 15-minute break at approximately the 10th
hour when an employee is to work 11 or more hours.
During the 3-month period, stated above, these employ-
ees did work a great deal of overtime. Stated otherwise,
employees who started their shift at 2 p.m., as did
McCarty, and then worked until 1:30 a.m. would have
put in II hours of time for which they were compensat-
ed.
On a particular shift, during August 1979, McCarty
was working in the candy room around I a.m. Shortly
2 To be distinguished from fellow employee and Job Steward Michael
K. McCarthy of Local 104.
275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after 1 a.m., he admittedly made a comment to his co-
workers in the presence of Baughman that the other em-
ployees should slow down in order to obtain an addition-
al 15-minute break. Several minutes later and shortly
before 1:30 a.m., Baughman, who had heard this com-
ment, told McCarty to punchout and go home; one
effect of this was to deprive him of eligibility for an ad-
ditional 15-minute break.
Some weeks later, on September 17, 1979, McCarty
was given an indefinite suspension by Respondent. As he
was told, and his own testimony so demonstrates, this re-
sulted from the Company's conclusion that he was sus-
pected of cheating on his production cards. Several days
later, on September 20, this discipline was increased to a
discharge.
As for the August incident, it is clear that McCarty
was not entitled to an extra break because he did not
work a full 11 hours. And there is substantial evidence
that it was the normal practice of Respondent to give the
break at different times, varying from 1 to 1:30 a.m.
Baughman testified that he generally tried to send
home employees who disliked working overtime, and on
the night in question he followed this policy precisely.
Thus, it is uncontroverted that shortly after 1 a.m., he
sent home employee Wesley because he knew of the lat-
ter's distaste for working late. As Baughman testified,
and I find, he did not need McCarty any longer that eve-
ning and, moreover, he was aware of.McCarty's prior
statement to employees suggesting a slowdown so as to
be awarded an additional break.
On September 17, just after McCarty reported to work
at 2 p.m., he was called to a meeting with Dave Ashby,
superintendent of operations; Baughman; and Union Ste-
ward Mendias. Ashby told McCarty, as the latter testi-
fied, that he was suspected of cheating on his production
cards and that he was suspended until further notice. He
was further told that Baughman had observed this cheat-
ing on the prior shift, and that fellow union members had
turned him in, and the record supports the latter finding.
Indeed, in his testimony at the instant hearing
McCarty, in effect, admitted that he had cheated on his
production card on the night in question. While the pre-
cise facts are not entirely clear, it appears that his pro-
duction card showed him as working time that he had
not.
Both Ashby and Baughman testified, and I find, that
McCarty admitted his cheating at the meeting on Sep-
tember 17. McCarty did deny that he had made such an
admission, but he did not deny that he was actually en-
gaged in cheating. And the cheating is corroborated else-
where.
The basic case of the General Counsel is that Re-
spondent was determined to "get" McCarty for his per-
sistence in asserting his rights under the collective-bar-
gaining agreement. There is evidence of a number of
contract grievances filed by McCarty with the Union.
However, although he was suspended on a number of
occasions during 1979, only one such suspension was
ever submitted to the grievance and arbitration proce-
dures set forth in the agreement, and this was won by
McCarty after his discharge. These grievances to the
Union include those dated January 10, July 2, and Sep-
tember 4, 1979.
There is also most persuasive evidence from Normal
Thelen, employee relations manager and safety coordina-
tor of Respondent. The General Counsel adduced evi-
dence that various employees including McCarty had
gone to OSHA and filed a grievance about working con-
ditions. Her testimony is not controverted, and I find
that this never came to the attention of Respondent al-
though another matter involving other employees in an
OSHA matter did. And the testimony of Thelen also dis-
closes, and this is not controverted, that Respondent
does not receive copies of complaints filed by an em-
ployee with the Union. She was aware of only one
grievance filed by him which came to the attention of
Respondent.
The General Counsel does rely on certain testimony
by Union Steward Mike McCarthy. According to
Baughman, it was McCarthy who initially notified him
that McCarty was cheating on his production cards. Sig-
nificantly, McCarthy, although presumably available,
was not brought back as a rebuttal witness to controvert
this.
According to McCarthy, Baughman told him in June
or July that McCarty was a thorn in the side of Re-
spondent which would like to find a way to discharge
him.3 Baughman flatly denied that there was any attempt
to "set-up" McCarty on the subject of cheating on pro-
duction records and testified, without contradiction, that
it was McCarthy who approached him in the warehouse
and advised him that McCarty was cheating on his pro-
duction records, and that the other men did not like this.
As a result, Baughman reported this incident to Ashby
and it was Ashby who instructed him to conduct an in-
vestigation of employees to determine whether any
cheating was taking place.
As a result, Baughman investigated the matter on the
next shift of September 16, and determined that McCarty
was in fact cheating. Indeed, Night Warehouse Supervi-
sor Jim Theis was called to the scene by Baughman to
verify this; this was done at the prior suggestion of
Ashby who desired verification of any such matter. And
the record has disclosed this verification by Theis both
in his testimony and in writing.
If the testimony of McCarthy is to be believed, it
would follow that he, a union steward, sat by idly and
did nothing while McCarty, his union brother, was dis-
charged according to a plan setup by Respondent.
McCarty did present some testimony that other employ-
ees were cheating on their production records in similar
fashion, but this is not supported. He did name a number
of employees who were so engaged and two of them,
Kuban and Bond were called as witnesses; they were un-
impressive or evasive and denied that they were in-
volved in any such system of cheating on production.
Indeed it was only Steward McCarthy, who admitted
3 There is testimony about an incident when Baughman and other em-
ployees were drinking beer after work and there was some joking about
the incident when McCarty was sent home before completing II hours,
and as a result was allegedly put in his place. I see nothing here which
assists the General Counsel or is dispositive of the issue before me.
276
CARMEL CONVALESCENT HOSPITAL
that he was involved on occasion in cheating in this
manner.
There is also evidence that at a later date, on January
28, 1980, management personnel questioned all employ-
ees in the tobacco, candy, and repack rooms about
McCarty's allegations of widespread cheatings, but un-
derstandably received no admissions of such misconduct.
C. Concluding Findings
To sum up, the General Counsel has not met its
burden of proof with respect to McCarty. On the other
hand, Respondent has offered plausible and sensible rea-
sons for the actions taken against him, and specifically
because he was caught cheating on his production re-
cords, a factor he in effect admitted. And as for the inci-
dent when he was sent home several minutes early be-
cause he was not needed, and because several minutes
earlier he had openly encouraged other employees to
slow down in order to get an additional break, I fail to
see how this assists the General Counsel, although Re-
spondent may not have been averse to the opportunity to
take this action.
In essence then, I find that the evidence preponderates
in favor of the position of Respondent herein, although
the General Counsel has argued forcefully at length in
favor of its position. And while there is some testimony
as to working practices of an unauthorized nature, I see
nothing sufficient to affect these findings in favor of Re-
spondent. I shall therefore recommend dismissal of the
complaint.
CONCLUSIONS OF LAW
1. Alfred M. Lewis, Inc., is an employer whose oper-
ations affect commerce within the meaning of Section
2(6) and (7) of the Act.
2. Transport & Local Delivery Drivers, Warehouse-
men & Helpers, Local No. 104 is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER4
The complaint is dismissed in its entirety.
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, 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.
277