Western Clinical Laboratory, Inc.

National Labor Relations Board - Board Decisions

May 9, 1979

242 N.L.R.B. 92 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Clinical Laboratory, Inc. and United Associ-
ation of Clinical Laboratory Technologists of North-
ern California, affiliated with Service Employees In-
ternational Union Local 22, AFL-CIO Western
Clinical Laboratory, Inc. and Service Employees In-
ternational Union Local 22, AFL-CIO
Western Clinical Laboratory, Inc. and Geraldine N.
Mastin. Cases 20-CA-9521, 20-CA-9627, 20-CA--
9680, 20-CA-10104, 20-CA-10119 and 20-CA--
10165
May 9, 1979
SUPPLEMENTAL DECISION
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
The National Labor Relations Board issued a De-
cision and Order in this proceeding on July 27, 1976,
finding that Respondent had violated Section 8(a)(l),
(3), and (4) of the National Labor Relations Act, as
amended, and ordering Respondent to offer Monte
Young reinstatement to his former job as a medical
technologist at Respondent's Roseville location.' On
March 2, 1978, the United States Court of Appeals
for the Ninth Circuit affirmed the Board's finding as
to the violations found, but vacated the portion of the
Board's Order reinstating Young, and remanded that:
portion of the proceeding to the Board to determine if
Young is competent to perform the job from which he
was discharged. The court enforced the remainder of
the Board's Order.2 The Board notified the parties on
July 26, 1978, that it had decided to accept the re-
mand and that they could file statements of position.
Thereafter, a statement was filed by the General
Counsel.
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.
The court agreed with the Administrative Law
Judge and the Board that the record supported the
findings that the 1974 evaluations given to Young
were discriminatorily motivated, as was his construc-
tive discharge, rejecting Respondent's contention that
Young was fired for incompetence. However, the
court was of the view that this determination did not
settle the issue of whether Young was in fact incom-
petent. Given the importance of the work performed
by medical technologists, the court determined that it
should not order the reinstatement of Young if the
credited evidence leaves substantial doubt that
i 225 NLRB 725.
2 571 F.2d 457.
Young is competent to perform the work. It therefore
remanded the proceeding to the Board to determine
from the record Young's competence as a medical
technologist. After reexamining the record, we are of
the opinion that the evidence does not leave substan-
tial doubt as to Young's competency, and that he is
entitled to reinstatement to his former job with Re-
spondent.
In support of its contention that Young was incom-
petent, Respondent relied to a great extent on the
evaluation prepared in September 1974 by his super-
visors, Williamson. Oda, and Hueners. However,
both the Board and the court found that this evalu-
ation was discriminatorily motivated. In addition, the
evidence presented at the hearing by Respondent
does not, in our opinion, support the evaluation. Oda
did not testify, so we are at a loss to know specifically
what input he had in the evaluation. Hueners did not
work evenings with Young, and little of his testimony
was based on personal observation. His testimony
concerning Young's failure to complete tests, which
were left for the day shift, the inability of Young to
handle emergency situations, and Young's making
clerical errors completely lacked specificity and was
unpersuasive. Further, nothing in his testimony
showed that Young was incompetent to perform as a
technologist, or that his presence in the job presented
a danger to patients, a situation the court obviously
wished to avoid.
Nor do we find at all persuasive the testimony of
Williamson concerning his reasons for giving Young
a poor evaluation or concerning Young's ability as a
medical technologist. As noted in the Administrative
Law Judge's Decision, the discriminatory motive be-
hind Young's 1974 evaluation was evidenced by Wil-
liamson's remark indicating that Young should have
expected a poor evaluation after engaging in union
activities. Further, Williamson's testimony shows no
support for the poor evaluation he gave Young. Al-
though he evaluated Young as not following chemis-
try instructions, and testified that Young made recur-
rent errors in bacteriology and blood banking, he
later admitted to a lack of knowledge of such errors.
Although he was highly critical of clerical errors
made by Young, the record shows that all technolo-
gists make these errors, and nothing indicates a pro-
pensity on Young's part to excel in this area. While
Williamson (and other of Respondent's witnesses),
made much of the fact that Young did more hematol-
ogy than other work in the lab, a condition they rep-
resent precludes his being a competent general tech-
nologist, the record shows that most of the
technologists, especially on the night shift, gravitate
toward one special area of their general field and
work primarily in that area. Also, Williamson admit-
tedly never spoke to Young of this alleged fault. Wil-
242 NLRB No. 12
92
WESTERN CLINICAL LABORATORY, INC.
liamson also testified that technologist Lee com-
plained of Young's work, yet Lee testified that he had
not spoken to Williamson of Young.
Of more significance is the fact that Williamson's
evaluation of Young is in direct conflict with the high
praise he showered on him in a December 1973 evalu-
ation prepared for Roseville Hospital. In that evalu-
ation. Williamson not only praised Young's work as
outstanding, but also went so far as to recommend
him for a promotion to a supervisory position. It is
our opinion, as it was that of the Administrative Law
Judge, that the December 1973 evaluation of Young
more accurately reflects Young's ability and compe-
tence than does the September 1974 evaluation of wil-
liamson's testimony in this case.
Respondent also presented evidence from another
employee, Lee, a technologist with 22 years' experi-
ence, concerning Young's work. Although Lee testi-
fied that Young did not have the ability that Lee
thought a technologist with Young's experience
should have, that he had to cover for Young's doing
incomplete tests perhaps three or four times in a
year's time, and that Young sometimes became "up-
tight" in stressful emergency situations, his testimony
principally reflected his resentment toward both
Young and employee Gillespie because he felt that
they did not carry as great a share of the workload at
night as he. Lee did admit that he and other technolo-
gists made the same kind of clerical errors for which
he faulted Young and that Young did not try to avoid
work. Further, in each category of the "Quality of
Work" section of Western Clinical's evaluation forms,
Lee rated Young as "average," thus not incompetent.
In contrast to Lee's somewhat critical opinion of
Young's work, Alves, an experienced technologist
who also had worked with Young at Roseville Hospi-
tal, testified that he had always had complete confi-
dence in the accuracy of Young's work, and that he
never noticed Young having difficulty with the work.
Further, he testified that Young did not limit himself
to working in hematology, corroborating Young's
own testimony in this regard.
Although Respondent makes much of Young's al-
leged poor score on the "12 slide" test, we place no
reliance on that test as a measure of his competence.
In late September, Young was given the bad evalu-
ation and told that he would be evaluated again in 30
days and, if he did not improve, he would be termi-
nated. Nearly 30 days later, while Young was per-
forming stressful stat work, he was required to drop
his work and, alone, take the test in the doctor's of-
fice, as part of his evaluation. Respondent's attempt
to compare Young's poor score to the allegedly supe-
rior scores of four technologists at another lab, or to
Lee's performance on the test, is meaningless. The
four technologists at Grass Valley were asked to take
the test in their spare time at their normal work sta-
tions. There was no pressure put on them such as
Young had, and there is no evidence that they did not
collaborate on the test or other aids. Similarly, Lee, a
technologist with vast experience, was under no pres-
sure (certainly not the threat of discharge as was
Young), when he took the test.
In the circumstances surrounding Young's being
tested, we find the results of the test of no value in
judging his competence.
In our opinion, Respondent presented no reliable
evidence that Young was incompetent in his work.
On the other hand, there is unbiased evidence show-
ing that he was not only competent, but a good tech-
nologist. Williamson's 1973 evaluation of Young not
only reflects this opinion, but it also contradicts testi-
mony that Dr. Keenan and Williamson were con-
cerned with Young's ability from the time of his hire.
Similarly, a September 25 memorandum from the
emergency room staff praising the speed and effi-
ciency of Young's work and the September 26 letter
from an emergency room physician to Dr. Keenan
not only attest to the high opinion of the speed and
accuracy of Young's work held by those who relied
on his work on a day-to-day basis, but also belies Dr.
Keenan's testimony concerning complaints from the
emergency room concerning Young.
Finally, we credit the testimony of Young which, in
our opinion, shows that he was a concerned technolo-
gist who realized the importance of speed and accu-
racy in his work and strove to achieve greater profi-
ciency. Although he did more work in hematology, he
did not limit himself to this area, and attempted to
further his knowledge of all aspects of his work. Fur-
ther, prior to his engaging in union activities, no one
had questioned his competency or criticized his per-
formance in his job.
Based on all of the foregoing, we conclude that
Young possesses the competency required of a medi-
cal technologist to perform the job from which he was
constructively discharged. We therefore adhere to our
Order (225 NLRB at 726), in which we ordered
Young reinstated to his former position, and made
whole for his losses.
93