NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,460, MAGAN MEDICAL CLINIC, INC. and OFFICE AND PROFESSIONAL EMPLOYEES, INTERNATIONAL UNION, LOCAL 30 et al., (Sep. 12, 1994), National Labor Relations Board, (Sep 12, 1994)

On April 6, 1993, Administrative Law Judge Jay R. Pollack issued the attached decision. The General Counsel and the Respondent filed exceptions and supporting briefs. The General Counsel and the Respondent also filed answering briefs.

We note that no exceptions were filed with respect to the judge’s dismissal of the allegation that the Respondent dominated the formation of the Committee.

In adopting the judge’s finding that the Respondent interfered with the formation of the Magan Medical Clinic Grievance Committee and the recommended Order that the Respondent withdraw recognition from the Committee, Member Devaney notes that, in the course of discouraging union supporter Wallin from unionizing the Respondent’s employees, Clifford, the Respondent’s administrator, stated that he wanted to start a grievance committee and that Wallin could be in charge of it and could pick the employees on the committee. The employees elected the committee representatives only because Wallin told Clifford such a method was preferable. Further, although the grievance committee appeared to free itself at least partially from the direct control of the Respondent during the course of its operations, the Respondent formulated the grievance committee scheme to frustrate employees’ attempts to determine whether they wanted a bargaining representative and bargained with the Committee over grievances numerous times. Thus, the Respondent accorded tacit recognition to a representative not freely chosen by a majority of employees and founded, in part, to frustrate employees’ efforts to choose a representative. See Electromation, Inc., [1992-93 CCH NLRB ¶17,609] 309 NLRB 990, 1003 (1992) (Member Devaney concurring). Member Devaney finds this case distinguishable from John Ascuaga’s Nugget, [1977-78 CCH NLB ¶18,266] 230 NLRB 275 (1977), and Mercy-Memorial Hospital, [1977-78 CCH NLRB ¶18,546] 231 NLRB 1108 (1977), in which the Board found that committees of employees set up to resolve employee grievances were not statutory labor organizations because they performed the managerial function of deciding grievances. Here, by contrast, the evidence indicates that the employee representatives on the Committee did not decide employee grievances but bargained with the Respondent over them.

Member Cohen finds it unnecessary to pass on the judge’s conclusion that the Respondent interfered with the administration of the Committee. Given the extent of interference with the formation of the Committee, Member Cohen finds that this violation is sufficient to support the remedial order.

The Respondent appears to have excepted to some of the judge’s credibility 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. [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

In connection with its defense under Wright Line, [1980 CCH NLRB ¶17,356] 251 NLRB 1083 (1980), enfd. [92 LC ¶12,987] 662 F.2d 899 (1st Cir. 1981), cert. denied [93 LC ¶13,389] 455 U.S. 989 (1982), the Respondent argued that it had previously issued two written warnings to Wallin based on her harassment of employees. The Respondent contends that it discharged Wallin after a third incident of harassment. In response, the General Counsel argued that the alleged incidents of “harassment” were in fact Sec. 7 activities, and thus the warnings and the discharge were unlawful. We do not agree with the General Counsel. Two of the incidents had nothing whatever to do with Sec. 7 activity. In a third incident, Wallin sought to induce employee Contreras to support her in her sexual harassment claim against the Respondent. Contreras replied that she did not believe that the conduct occurred as Wallin claimed, and that she (Contreras) would not “lie” on behalf of Wallin. Despite this, Wallin repeatedly tried to get Contreras to support Wallin’s version, and said that Contreras’ refusal to do so was a betrayal of friendship. In these circumstances, we do not believe that Wallin’s continued efforts vis-a-vis Contreras were protected by Section 7 of the Act.