Rush Presbyterian-St. Luke'S Medical Center

National Labor Relations Board - Board Decisions

Dec 29, 1986

282 N.L.R.B. 537 (N.L.R.B. 1986)

RUSH PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER 537
Rush Presbyterian-St. Luke's Medical Center and
Stanley Tranowski, an Individual . Cases 13-
CA-25368 and 13-CA--25688
29 December 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 15 August 1986 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The'
Charging Party filed exceptions and a supporting
brief, and the Respondent filed an answering brief
and a motion to strike the Charging Party's excep-
tiions.'
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, I and
conclusions and to adopt the recommended Order.
ORDER '
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 In, view of our disposition of this proceeding , we find it unnecessary
to pass on the Respondent's motion to strike the Charging Party's excep-
tions and brief in whole or in part . The Charging Party's request to con-
solidate this proceeding with Case 13-CA-26125 is denied.
2 The Charging Party has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive 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 fmd no basis for re-
versing the findings.
Melvyn Basan, Esq., for the General Counsel.
Bruce K Alder, Esq. (redder, P'3ice, Kaufman and Kamm-
holz), of Chicago, Illinois, and David A. Rice, Esq., of
Chicago, Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge. A hear-
ing in this proceeding was held at Chicago, Illinois, on 9
and 10 June 1986, on the General Counsel's complaint
against Rush Presbyterian-St. Luke's Medical Center (the
Respondent). The complaint issued on 31 March 1986,
on a charge filed on 1 October 1985 by Stanley Tran-
owski (the Charging Party). The issue presented is
whether the Respondent suspended the Charging Party
from work for 3 days in retaliation for his prounion ac-
tivities in violation of Section 8(a)(3) of the Act. Briefs
were filed after the close of the hearing by the General
Counsel and the ' Respondent.'
On the entire record and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF TILE RESPONDENT
The Respondent is engaged in the operation of a not-
for-profit hospital in Chicago, Illinois. During the year
preceding issuance of the complaint, a representative
period, it derived gross revenues in excess of, $250,000
from that one operation. During the same period it pur-
chased and received at that location products, goods, and
materials valued in, excess of $50,000 directly from out-
of-state sources. I fmd that the Respondent is an employ-
er within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
-I fmd that Local 743, International Brotherhood of
Teamsters is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Tranowski, who filed the charge in this case, has been
an employee of ' the Respondent for a number of years.
On 3 October 1985 two of his supervisors-Anton
Dorner and Theodore Nichols-together decided to
impose a 3-day disciplinary suspension on Tranowski.
Their reason, as stated to him at the time, was because
he had deliberately punched two timecards at the same
time, his own and that of a fellow employee, in contra-
vention of the written rules of conduct in the workplace.
Tranowski denied having done that and insisted he had
only punched one timecard, his own. Who was telling
the truth-both during the disciplinary conversations and
at the hearing? That is the whole case.
In his brief the General Counsel advances two alterna-
tive arguments. His first is that Tranowski did not punch
two timecards that day. If that is so, it means the' man-
agement representatives were lying, and therefore of ne-
cessity must be found to have been motivated by another
purpose in disciplining the man, an illegal one, of course.
The second argument is that even if in fact Tranowski
did punch two timecards, the Respondent did not disci-
pline him for that reason, but did so because it, resented
his earlier activities as a union steward. Under this
theory of complaint, I must find, according to the Gen-
eral Counsel, that Tranowski was lying as a witness in
this case. But if he was lying at the hearing, how can I
believe his further testimony-contradicted by the Re-
spondent's witnesses-that they made antiunion state-
ments to him during the very disciplinary interviews that
took place? As it happens the case turns entirely on a
question of credibility, and on that basis primarily I will
recommend dismissal of the complaint.
Tony Ramirez is Tranowski's immediate supervisor.
Over him, in the same department, are Superintendent
1 A unopposed motion by the General Counsel to correct certain inad-
vertent errors in the record transcript is granted.
282 NLRB No. 65
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dorner and Director Nichols. The timecards in question,
called time control cards, are used to record the lunch-
breaks accorded the employees in this one department.
They were established as a regular system 4 years ago as
a result of an arbitration dispute that the Respondent
lost, when an employee was disciplined for sleeping on
the job and the employer was unable to prove that it had
not happened during that employee's lunchbreak. To be
sure the time would be correctly watched in the future,
the special timecards were established.
Ramirez testified that about 4 a.m., on 1 October 1985,
which was lunchtime in that department during that
shift, as he was standing near his office door he saw
Tranowski near the timeclock with two cards in his
hands. Ramirez' testimony is that he immediately called
out'towards the man saying: "What are you doing?" and
that Tranowski's answer was "I am only punching Mir-
anda's card ." By this time Ramirez was up close to the
clock and saw the man actually punch two timecards, his
own and Miranda's. Still according to Ramirez , he told
Tranowski it was against regulations to punch some-
body's else timecard, and then he went to Miranda and
asked if he had told Tranowski to punch his timecard.
Miranda replied, "No."
With this Ramirez then checked the written rules of
conduct that were in effect and they read:
Other violations of rules may warrant warning,
layoff, or discharge depending upon the circum-
stances . These include, but are not limited to:
d. Removal or alteration of any timecard or time-
sheet; punching the timecard of another employee;
repeated failure to punch your own timecard or any
falsification of time reporting.
Ramirez wrote a report of the incident for his superiors,
in which he recommended that Tranowski be dis-
charged. William Craver, also an employee in that same
department , was standing at the timeclock when this
happened. His testimony directly corroborated that of
Ramirez.
Q. What did you hear Mr. Ramirez say, to the
best of your recollection?
A. Don't punch cards or something like or don't
do that, don't punch cards....
Q. Did you observe Mr. Tranowski actually
punch two timecards?
A. Well, yes, he did punch the cards....
THE WiTNEss: I seen him punch two cards.
JUDGE Ricci: How did he punch them?
THE WITNESS: Punching them in the clock.
JUDGE Ricci: He had both in one hand?
THE wrrNEss: No, one in each hand.
Miranda's timecard for that day was received in evi-
dence; it shows it was punched at 3:50 a.m., exactly the
moment Tranowski's timecard was punched. Called as a
witness by the Respondent Miranda testified he did not
punch his timecard that day and he did not ask Tran-
owski to punch it for him.
Tranowski's testimony contradicts part of the forego-
ing testimony. He denied ever having held more than
one card in his hands that day and denied having
punched Miranda's card . But he did admit that Ramirez
called to him from "the doorway of his office . . . 'Stan-
ley, don't punch Miranda's card, just punch your own
card."' Tranowski then added he asked Ramirez, "What
did you say?" and that when the foreman repeated, "For
your own protection .... Just punch your own card,"
Tranowski said , "I am, that is all I am doing."
If I am to agree with the General Counsel that Tran-
owski truthfully testified he never had anyone else's
timecard but his own in his hands at that moment, it
means I must find that the Respondent set up a complete
scenario, a staged play, including three actors-Ramirez,
Craver, and Miranda-all programmed and rehearsed in
advance, because Tranowski admitted being accused of
wrongdoing-punching two timecards-and admitted
Craver was present.
I credit the Respondent 's witnesses against Tranowski.
Although there are many reasons for this finding on my
part, the principal one is the witness' behavior and de-
meanor on the witness stand . Again and again he evaded
answering direct questions; again and again he injected
extraneous arguments in his answers ; and ' more than
once-while talking of the two disciplinary interviews
that took place in the director's office after the incident,
he tried to make it appear the supervisors brought up the
subject of his earlier union steward activities, while ob-
liquely admitting it was he who injected that subject into
the conversations.2
Miranda and Craver were just bystanders; neither had
anything to gain so that their testimony could be deemed
suspect. I cannot believe that two rank-and-file employ-
ees, both members of the Union and one even a steward,
would join, at the request of their supervisors, in such a
planned scheme to hurt a fellow employee . Yet, to credit
Tranowski's story this is precisely what I would have to
hold. I hardly need comment that there is no merit in the
further argument of the General Counsel that Craver
should be discredited against Tranowski because the
former was testifying in favor of the Employer and the
latter against the interests of his supervisors . If such a
theory were correct, any employee who testifies in
Board proceedings in support of its employer's conten-
tion becomes suspect ,for that sole reason. More signifi-
cant, Charging Party Tranowski would also have to be
discredited, because certainly he too had a biased interest
in the outcome. Whatever my reason for discrediting
Tranowski in this case, I want to make it clear that the
fact he is the Charging Party has nothing to do with my
credibility resolution.
The truth being that Tranowski did punch two time-
cards that day-his and another man's-knowingly, of
course, we come to the alternative argument in support
of the complaint. And it is that the Respondent' s reason
for disciplining the man was not-because of his violation
of an established rule but because it seized the opportuni-
ty to punish him for having been an active union stew-
2 At one point towards the end of his direct examination of Tranowski,
after the witness' repeated generalizations of what the supervisors!' bad
attitude towards him had been, the General Counsel had to tell his wit-
ness: "Don 't editorialize please."
RUSH PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER
ard. Here again the proof offered in support of the con-
tention is direct testimony-again mostly from Tran-
owski-that antiunion intent was voiced by the Respond-
ent's supervisors at the time of the events . In their testi-
mony the management representatives denied that testi-
mony. Here too, therefore, consideration must start with
the question of credibility. Can Tranowski be believed?
As I look at the case from this side view, which the
General Counsel suggests, an interesting question arises
in my mind. By telling me to consider Tranowski as
having committed the rule violation, the General Coun-
sel is really saying I should evaluate the record as a
whole on the basis of the man having lied at the hearing.
But if I am to view him as a lying witness , on the funda-
mental issue of fact , is it not inconsistent for the General
Counsel to ask me to believe the same man when he is
contradicted by the Respondent's witnesses on other,
equally disputed complaint allegations?
In any event, the record in its entirety does not prove
a prima facie case against the Respondent, and the Re-
spondent has shown a perfectly convincing affirmative
defense of disciplinary action for just cause. Cf. Wright
Line Inc., 251 NLRB 1083 ( 1980).
The principal prop for the pretext theory is that the
Company discriminated against Tranowski, that it penal-
ized him for having done no more than any other em-
ployee had done before him with no penalties ever im-
posed on anybody. Employees sometimes make mistakes;
they punch somebody else's timecard inadvertently.
Whenever that happened they reported it to the supervi-
sors, who made a record of such errors. The General
Counsel placed those records into evidence, and they do
show about 26 such mistakes over a 2-year period. Ad-
mittedly none of those listed employees were penalized
in any way for the mistakes they had reported to man-
agement . I do not deem it necessary to speak at length
about the difference between one man mistakenly grab-
bing the wrong timecard when he punches in or out, and
another man taking two timecards in his hands at the
same time and deliberately punching both his and an-
other man's. There is absolutely no relationship between
the two situations-one plain error and the other an in-
tended violation of the rules. There is no evidence of
anyone ever having been excused without penalty for
committing the offense Tranowski committed on 1 Octo-
ber 1985. The assertion of disparate treatment therefore
has no support at all.
Moreover, the rules then in effect dictated some kind
of penalty for what Tranowski did. And, being a union
steward who participated in many disputes with manage-
ment, Tranowski certainly was familiar with all of them.
In addition to the proscription set out above, the Compa-
ny's personnel policies and procedures documents, re-
ceived in evidence, include the following:
Employees are subject to immediate dismissal,
even for a first time offense, for major policy viola-
tions including , but not limited to, the actions enu-
merated in this section.
c. Forging, altering, or intentionally falsifying
any Medical Center document, authorization or
record.
539
Time Control Card (tcc)-The time control time-
card is a document similar to the regular timecard.
At the beginning of every pay period each employ-
ee should obtain a blank time control timecard and
write his name and employee number in the appro-
priate blank. The time control timecards are stored
in the rack next to the timeclock adjacent to the
regular timecards. Employees are not permitted to
punch another employee's timecard for any reason.
When Foreman Ramirez decided to write Tranowski
up for what he had done, he looked up the written rules,
for he had not seen such a thing happen before. When he
read that, a man could, or should, be discharged for that
offense, he recommended such action in his report to his
superiors.. When he gave his report to Dourer, towards
the end of the shift, Domer called Tranowski to his
office to talk about it. Dorner also had Union Steward
Lambert present. Asked was it true he had punched two
timecards, Tranowski denied it. He and the steward then
demanded that if there were any witnesses they should
be brought into that room then and there. So the officers
called in Ramirez, who repeated directly he had watched
Tranowski do that with his own eyes. Tranowski called
Ramirez a liar. With this, the officers said they would
look into the matter further, investigate the incident, and
meanwhile they put Tranowski on indefinite suspension.
After talking to the other witnesses-Craver and Mi-
randa, a 3-day suspension was imposed on Tranowski,
and he was called in to a second interview in Dorner's
office on 3 October and told about the final decision.
And again Steward Lambert was also called in. Both
Dorner and Nichols were present that day too. The most
plausible: explanation of this procedure, in my considered
judgment, is Nichols' testimony at the hearing that he
and Dorner decided to investigate the matter further on
1 October, putting Tranowski on indefinite suspension
meanwhile; it was no more than the usual way of han-
dling a problem of this kind.
To prove an antiunion motive in the action of the su-
pervisors the General Counsel relies on a number of
statements, which according to Tranowski's and Lam-
bert's testimony, Dourer and Ramirez said during the
two disciplinary interviews. Among the statements attrib-
uted to Dorner by Tranowski are the following:
Mr. Dorner told me that I could have come in
there and plea bargain with him. . . . he told me
that he had never had so much union problems
since he had hired Frank Frey [another union stew-
ard] as he had told me before." "He told me at that
time that it was a sorry day when he first hired
Frank Frey, and I told him that it was immaterial
that he was very hostile to me because of the fact
that I had vigorously defended Frank Frey at the
grievance proceeding . . . And so what happened
thereafter is, as Mr. Lambert told him, he said,
`Okay,' he said, `You got Frank Frey, you tried to
gel Stanley. You got him for three days. When are
you going to get me now?' Mr. Domer did not
reply to that, but Mr. Dorner said that I was a dif-
ferent person from the person that he had hired.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tranowski also quoted the supervisors with respect to
other conversations they had had at other times . He said
that sometime in January 1986, when arguing about a
grievance involving another employee , Dorner said to
him: "I can make it hard for you. I can get you fired
too." Tranowski also quoted Foreman Ramirez as telling
him, again in January of 1986: "Well, if you are not
going to go along with me, I am going to write you up
for poor performance."
Finally, two last quotes from Tranowski's testimony.
Sometime in September 1985 Ramirez said to him: "`You
think you are pretty smart don't you?' He says, `Well, I
am going to get you too."' This was after Ramirez had
seen Tranowski talking with another employee, instead
of working-as he was supposed to be doing, and after or-
dering him to do his job. Tranowski went on to say that
some time later he heard Ramirez tell another employee,
"He ran my ass to the kitchen."
Steward Lambert, also testifying in support of the
complaint, testified that in the 3 October interview
Dorner told him, "[B]ecause of the union activity of
Stanley Tranowski and Frank Frey and myself, he is
having excess difficulty with us."
Both Ramirez and Dorner directly contradicted Tran-
owski's and Lambert's testimony. They denied ever
having voiced any threat against Tranowski because of
any of his union activity. On' the entire record and,
again, especially in the light of Tranowski's behavior as a
witness at the hearing, I credit the denials of Dorner and
Ramirez. A first and a sufficient reason for this credibil-
ity resolution is the fact Tranowski lied at the hearing
about the critical event that precipitated the whole case.
Lambert, who was offered by the General Counsel to
corroborate Tranowski, was always present. He said he
did not recall Dorner having said it was a sorry day he
had hired Frey-a very active union steward. Lambert
also did not recall Dorner having said Tranowski was a
changed 'person. Lambert , himself a union steward,
would hardly forget such statements concerning his
fellow union officers. I therefore must believe Dorner,
who denied each of those statements.
A close reading of Tranowski's testimony about the
two disciplinary interviews strongly indicates that the
subject of his earlier union activities was injected into
the conversations by him and Lambert, and not by the
management agents . For example , when Dorner saw
Tranowski talking to another, employee instead of doing
his assigned work, he threatened to "get" him too. Even
were, I to believe Tranowski at that point, all the super-
visor was saying was he would not stand for repeated of-
fenses of not working during working time. It was Tran-
owski who then added-if he is to be believed-"If you
are referring to the Frank Frey case, as I told you
before, Mr. Dorner, I deal with issues of facts, not per-
sonalities." This was Tranowski injecting the subject of
union activities into the conversation, not Dorner.
As set out above, Tranowski testified that Dorner told
him it was a sorry day he had hired Frey. In the same
sentence the witness then went on to add he reacted by
telling Dorner, "[I]t was immaterial that he was very
hostile to me because of the fact that I had very vigor-
ously defended Frank Frey at the grievance proceed-
ing." But Dorner had said nothing-as Tranowski him-
self recalled-about disliking Tranowski for having done
anything. Again it was the employee putting antiunion
words into the mouth of the supervisor. The witness
then continued that at that very point of his conversation
with Dorner, Steward Lambert spoke up and told the su-
pervisor, "You got Frank Frey. You tried to get Stanley.
You got him for 3 days. When are you going to get me
now? Mr. Dorner did not reply to that . . . ." Again,
this was the employee witness putting words, or
thoughts, into the supervisor's mouth that he did not
even say were uttered by Dorner.
At another point in his testimony Tranowski said he
told Dorner about Ramirez' threat to write him up for
poor performance. After saying that Dorner did not re-
spond to his remark , the witness then added, "This' has
been a standard ploy of Mr. Ramirez ...." His conclu-
sionary statement , which appears again and' again in his
testimony, did not enhance the witness' credibility.
A final argument-hinted at obliquely at the hearing
by the General Counsel-is that a reason for the 3-day
discipline imposed on Tranowski was because of his
threat "to go downtown," i.e., a threat to file some kind
of charge against the Respondent . The managers told
him to do as he pleased. But what the General Counsel
conveniently overlooks is that by the time Tranowski
first voiced that threat, the decision to discipline him had
already been made and announced to him . His threat
therefore came after the supervisors had already decided
on disciplinary action.
A final word, in his usual legal language Tranowski
told how Dorner had tried to "plea bargain" with him,
suggesting to the employee that if he told the `truth about
the rules violation the supervisor would consider being
more lenient with him. And Dorner did say at the hear-
ing that the fact of Tranowski having called Ramirez a
liar was a factor in his decision to impose the 3-day sus-
pension. I see nothing wrong in the supervisor asking an
employee to tell the truth, or thinking less of him for
lying, I think the employee was lucky to have been treat-
ed the way he was. Had the Respondent fired him then
and there it would have been perfectly justified.
I find that the record as a whole does not prove a
prima facie case of suspension based on union activity,
and that rather it proves affirmatively a good and legiti-
mate cause for disciplinary action taken against Tran-
owski. Accordingly, I shall recommend that the com-
plaint be dismissed.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
It is recommended that the complaint be dismissed in
its entirety.
8 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 pur-