By Marjorie Johnson, J.D.
In light of the sheer number of functions the supervisor claimed to have performed within the “very short time period,” as well as her disingenuous claim she didn’t know the employees were union organizers, the ALJ properly rejected her testimony.
Affirming the NLRB’s determination that a healthcare center violated the NLRA by firing four union organizers two days before a union election purportedly for sleeping on the job, the D.C. Circuit found that the ALJ properly discredited testimony of the supervisor who claimed to have witnessed the employees sleeping well past their 10-minute break periods. Comparing the Board’s counsel’s skilled cross-examination tactics to the “Vincent Gambini” character in the classic movie “My Cousin Vinney,” the opinion penned by Chief Judge Merrick Garland found that the ALJ properly rejected the supervisor’s testimony as to how much time passed between the first time she witnessed the employees sleeping and the time in which she took her allegedly incriminating photo. Accordingly, the employer’s petition for review was denied and the Board’s cross-application for enforcement was granted (Novato Healthcare Center v. NLRB, March 5, 2019, Garland, M.).
In September 2015, the union filed a petition with the NLRB to represent a unit of the skilled-nursing facility’s employees. The four employees later accused of sleeping helped lead the organizing effort and attended union meetings, collected signatures, wore pro-union buttons and lanyards, and passed out flyers. Meanwhile, as part of its union-opposition campaign, management asked supervisors to volunteer to work night shifts to provide union-opposition materials and answer employee questions. On October 4, 10 days before the election, a supervisor asked one of the employees how he planned to vote and warned that his vote would have implications for his pay and that the union could potentially take a portion of his paycheck.
Accused of sleeping while on duty. During the October 6-7 night shift, the four pro-union employees were working at Station 4 while another employee with unknown union views was working at Station 1. A supervisor who was working as part of the union-opposition claimed that she arrived at the facility sometime after 3:50 a.m. and, after completing a number of tasks, saw all five employees sleeping at their stations. She further claimed that on her third visit she took a photo of two of the sleeping pro-union employees on her cell phone, which she later produced with a timestamp of 4:21 am. When she then saw the fifth employee was still sleeping, she informed the charge nurse, who woke her up.
All five terminated. She sent the photograph to the administrator and told him that the five had been asleep for 15-to-20 minutes, which would have been considerably longer than their permitted 10-minute breaks. They were suspended pending an investigation and the administrator contacted outside counsel, who recommended that all five be terminated even though the Station 1 employee was “a bit of a different story” since the charge nurse appeared “to have tolerated her sleeping.” The attorney stated that “giving her lesser discipline, in this situation, sends the wrong message to the NLRB or a judge looking at this” and that while the NLRB or judge “could view her situation as being less serious than the others,” that was outweighed by “the risk that letting her remain employed somehow dilutes our arguments with the other 4.”
On October 12, two days before the election, all five employees were fired for sleeping on duty. After the union won the election it charged the center with committing unfair labor practices. Following a multi-day hearing, the ALJ found that the employer violated the NLRA by firing the five employees, as well as when the other supervisor questioned one about how he planned to vote. The Board affirmed.
ALJ properly rejected supervisor’s testimony. The D.C. Circuit squarely rejected the employer’s assertion that it would have terminated the pro-union employees regardless of their union support because of the “brazen” nature of their conduct in sleeping on duty. Its argument admittedly turned entirely on the credibility of the supervisor’s testimony that they were sleeping “at least 15 to 20 minutes,” which the ALJ found wholly unsupported. While the employer urged that her testimony was corroborated by the 4:21 timestamp on the photo, she did not know the specific time that she first saw them asleep but instead stated that she began her rounding at approximately 4:00 am and took the incriminating photo around 15-20 minutes later.
Timing was everything. This was where “the lesson Vinny Gambini taught” came into play since a key issue in the murder-trial movie was how many minutes had passed between the time a witness saw the defendant enter the Sac-O-Suds convenience store and the time he heard a gunshot. Though he testified that he was sure only five minutes had passed, by the end of the cross-examination it was clear that he “could not have cooked his breakfast of eggs and grits in just five minutes.” The same timing discrepancy came to light during the NLRB counsel’s cross examination of the supervisor, who testified that the only time she saw a clock that morning was when her car’s clock showed that it was 3:50 a.m. when she stopped at a stop sign three blocks from work. She then claimed that as of 4:21 a.m., the employees had been sleeping at least 20 minutes from the first time she had seen them during her first round.
Testimony simply not credible. The problem with this timeline was the “sheer number” of tasks that the supervisor testified to having completed between stopping at the stop sign at 3:50 a.m. and arriving at Station 4 “just 5 to 10 minutes later,” which led the ALJ to regard her testimony as “implausible.” During cross-examination, counsel drew out an extensive list of activities she said she had completed during that short period, including driving three more blocks and stopping at another stop sign, parking and entering the facility, walking to her office and checking her emails, walking to the kitchen and checking temperature logs and dates of the items in the refrigerators, using the restroom, collecting union-opposition campaign flyers (on which someone had written “derogatory stuff”) and going back to her office to read them, walking down the hallway while peeking in rooms, and then finally arriving at Station 4 and seeing the sleeping employees.
The ALJ also questioned her credibility based on her failure to photograph the other two employees as well as her failure to attempt to wake any of them up despite the center’s insistence that they had to be fired since they put patients dangerously at risk by sleeping on the job. In addition, the ALJ discredited her assertion that she did not know the four were union adherents since she did not notice they all wore pro-union lanyards and buttons, yet claimed that she could “recall significant details” on how they slept since she got within “arm’s reach” of them. She and other supervisors also admittedly wore lanyards urging employees to “KEEP YOUR VOICE VOTE NO.” In the end, the ALJ rejected the supervisor’s version of events completely and the Board properly saw “no basis for reversing” that finding.
The Board also properly determined that the firing of the Station 1 employee violated the NLRA despite the alleged “total lack of evidence” that she was awake or that she was even a union supporter. The ALJ determined that the center unlawfully used her as a “pawn in an unlawful design” since management fired her along with the pro-union employees “for fear of diluting its argument” against them and to “‘cover” its unlawful suspension and termination of them. Finally, the court also rejected the employer’s challenges to the finding that another supervisor unlawfully interrogated one of the pro-union employees 10 days before the election.
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