NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Medical Express Ambulance Service, Inc. and International Association of EMTS
and Paramedics, SEIU/NAGE. Case 13–CA–43531
June 8, 2007
DECISION AND ORDER
By Members Liebman, Schaumber,
and Kirsanow
On February 9, 2007, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Respondent filed exceptions, and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated 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 brief and has decided to affirm the judge’s rulings, findings,[1] and conclusions and to adopt the recommended Order as modified.[2]
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the
Respondent, Medical Express Ambulance Service, Inc.,
1. Substitute the following for paragraph 1(d).
“(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.”
2. Substitute the attached notice for that of the administrative law judge.
Dated,
Wilma B. Liebman, Member
Peter C. Schaumber, Member
Peter N. Kirsanow, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An
Agency of the
The National
Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Choose representatives to bargain with us on your behalf
Act
together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not interrogate our employees about their union activities.
We will not ask our employees to report on the union activities of other employees.
We will not promise benefits to employees in return for information about the union activities of other employees.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above.
Medical Express Ambulance Service, Inc.
Brigid Barnicle, Esq. and Christina Lopez, Esq., for
the General Counsel.
Joshua D. Holleb, Esq., of
DECISION
Statement of the Case
Bruce D. Rosenstein,
Administrative Law Judge. This case was tried before me on November 29, 2006,
in
Issues
The complaint
alleges that the Respondent engaged in independent violations of Section
8(a)(1) of the Act including interrogating employees about their union
activities, soliciting employees to report on the union activities of other employees,
and promising benefits to employees if they provided information on the union
activities of other employees.
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the Respondent, I make
the following
Findings of Fact
i. jurisdiction
The Respondent
is a corporation engaged in the business of providing ambulance and medicar
services in
ii. alleged unfair
labor practices
A. The 8(a)(1) Allegations
The Board has
held that interrogation is not a per se violation of Section 8(a)(1) of the
Act. Rossmore
House, 269 NLRB 1176, (1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In determining whether an interrogation is
unlawful, the Board examines whether, under all the circumstances the
questioning reasonably tends to interfere with, restrain, or coerce employees
in the exercise of their Section 7 rights.
Rossmore House, 269 NLRB at
1177–1178. Emery Worldwide, 309 NLRB 185, 186 (1992). Under the totality of circumstances approach,
the Board examines factors such as whether the interrogated employee is an open
and active union supporter, the background of the interrogation, the nature of
the information sought, the identity of the questioner, and the place and
method of interrogation. Rossmore House, supra at 1178 fn. 20; Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964);
1. Allegations concerning Lauren Rubinson
a.
Facts
The
The General
Counsel called two witnesses to testify about the allegations alleged in the
complaint. The Respondent also called
two witnesses to respond to those allegations.
Employee
Robert Castro, an emergency medical technician (EMT), testified that he has
worked at the Respondent for approximately 2 years and reports directly to
Human Resource Manager Catherine Aitken, who in turn is supervised by Rubinson. Castro stated that while he learned about the
organizing campaign from coworkers in June 2006, he was not actively engaged
therein and was not an active or open supporter of the
Castro
testified that when his shift ended around 8:30 p.m. on or about July 13, and
while he was completing his required paper work in the operations office, he
engaged Operations Supervisor Angie Graham in a conversation while she was
sitting at her desk. According to
Castro, while he was talking with Graham, Rubinson pulled him off to the side
and they engaged in a conversation in the hallway closer to the operations office
then the reception area. He was certain,
however, that Graham could not see them talking. During the conversation, Castro asserts that
Rubinson asked him “Do you know anything about the
On cross-examination,
Respondent’s counsel showed Castro four memoranda to help refresh his recollection
of when the conversation occurred with Rubinson. Castro, after reviewing the documents,
testified that the conversation with Rubinson took place on August 3, 1 week
before the date of the first memorandum which issued on August 10.
Rubinson
testified that she had two conversations with Castro where the topic of the
Rubinson
denied that she ever had a conversation with Castro outside the operations
office and asserts that she never asked him the questions set forth above and
alleged in the complaint.
b.
Discussion
I do not
credit Castro’s testimony for the following reasons. First, Castro was very unsettled as a witness
who repeatedly changed his testimony concerning when the alleged meeting
occurred, and had great difficulty in remembering when the alleged conversation
with Rubinson took place. Indeed, he
first testified that the conversation with Rubinson took place during the week
of July 10, then that it specifically occurred on July 13, and finally that the
conversation took place on August 3.
Second, Rubinson credibly testified without contradiction, that Castro
did not work on July 10 (Monday), that on July 11 (Tuesday), she was not
working in the evening and left work at 6 p.m., that on July 12 (Wednesday),
Castro did not work and on July 13 (Thursday), she was at a meeting in the
morning and then left the office in the afternoon to catch a flight to Indianapolis
at 2:40 p.m.. Rubinson did not return to
the
Likewise, I
note that the General Counsel did not call either Castro or Graham as rebuttal
witnesses to contradict the unrebutted testimony of Rubinson. Certainly, calling Graham as a witness would
have substantially buttressed the General Counsel’s case.
For all of the
above reasons, I find that the General Counsel did not establish that Rubinson
interrogated Castro, solicited him to report the union activities of other
employees, or promised him benefits in return for information on the union
activities of other employees on the July 13 date alleged in the complaint or
any date during the week of July 10. I
also find that Castro gave shifting answers throughout his testimony and was
uncertain when the conversation with Rubinson took place. Conversely, Rubinson was precise and certain
of when events took place and her testimony in addition to the documentary
evidence introduced into the record convinces me that her testimony was
truthful. Accordingly, I recommend that
the allegations in the complaint regarding Rubinson be dismissed in there entirety.
2. Allegations concerning Catherine Aitken
a.
Facts
Employee
Vanessa Engquist has been employed as an EMT at the Respondent for
approximately 18 months and reports to Aitken.
She became aware of the union organizing campaign in or around late May
or early June 2006, but was not active in the drive or a known union supporter.
Engquist
testified that on or about July 27, Aitken requested that she report to her office. During the one-on-one conversation that
lasted about 5 minutes, Engquist asserts that Aiken asked her if “I knew who
was involved in organizing the
In August
2006, Engquist was asked to attend a meeting with her operations supervisor and
Rubinson. No other employee was in the
room. The Respondent gave assurances to Engquist that no reprisals would be
taken against her and asked if she would voluntarily respond to several
questions.2
Engquist agreed to answer some questions and told Rubinson that no one
in management ever asked her questions about the
Aiken has been
the human resource manager at the Respondent for 7 years and personally hired
Engquist.
Aiken
testified that she had two conversations with Engquist when the subject of the
The second
conversation took place on November 1 in Aitken’s office. Aitken testified that Engquist informed her
that she received a strange telephone call on her voice mail and it upset
her. After some additional discussion,
Engquist told Aitken that the caller left a message that Rubinson was paying people
to change sides with the
Aitken
categorically denied that she engaged in a conversation with Engquist on or
about July 27, wherein she interrogated her about the union activities of other
employees, solicited her to report on the union activities of other employees,
or offered her a raise if she would provide information on which employees were
involved in the union organizing campaign.
b.
Discussion
There is no
dispute that Aiken was aware that the
The above
recitation reflects a complete credibility dispute between Aitken and
Engquist. Thus, it is necessary to resolve
this difference based on my observation of the demeanor of each witness during
the course of the proceeding.
I was quite
impressed with Engquist’s demeanor and her total recall of the facts. Her testimony had a ring of truth to it. I also note that after the completion of
Engquist’s testimony on direct examination, counsel for the Respondent
requested and was provided her pretrial affidavit that was executed on August
14, a period of time shortly after the conversation occurred on or about July
27. Significantly, that affidavit was
not introduced into evidence, as the Respondent did with Castro’s pretrial
statement to establish any inconsistent statements. Thus, I conclude that Engquist’s record
testimony was fully consistent with her pretrial affidavit given to the Board
agent. Moreover, it convinces me that
Engquist’s statement that she told her mother about the conversation shortly
after it occurred due to her being upset adds credulity to her testimony.
In regard to
Aitken’s testimony concerning the two conversations that she had with Engquist,
much of it was rambling and disjointed.
I conclude that Aitken, as human resource manager, was interested in
learning who was involved in the union organizing and selected employees who
did not appear to be active in the campaign in order to obtain information on
which employees were the leading union adherents.
Likewise, I
discount the Respondent’s attempt to discredit Engquist’s testimony when it
showed that Engquist lied about her earlier conversation with Aitken when she
was called to a meeting with Rubinson and her operations supervisor in August
2006, and denied that she previously talked with any management official about
the
Accordingly,
and particularly noting Engquist’s firm conviction on the witness stand in
answering all question in a direct and forthright manner, I find that Aitken
did engage in the conduct alleged in the complaint. Therefore, I recommend that the Board find
that the Respondent engaged in conduct violative of Section 8(a)(1) of the
Act. See Beverly Health Rehabilitation Services, 339 NLRB 1243, 1249,
(2003),
Conclusions of Law
1. Respondent
is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The
3. Respondent
violated Section 8(a)(1) of the Act when it interrogated an employee about the
union activities of other employees, solicited an employee to report on the
union activities of other employees and promised benefits to an employee if she
provided information about the union activities of other employees.
Remedy
Having found
that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended4
ORDER
The
Respondent, Medical Express Ambulance Service, Inc. Skokie,
1. Cease and
desist from
(a)
Interrogating an employee about the union activities of other employees.
(b) Soliciting
an employee to report on the union activities of other employees.
(c) Promising
benefits to an employee in return for information about the union activities of
other employees.
(d) . In any
other manner interfering with, restraining, or coercing employees in the
exercise of rights guaranteed them by Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14
days after service by the Region, post at its facility in
(b) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
It is further ordered
that the complaint is dismissed insofar as it alleges violations of the Act not
specifically found.
Dated,
APPENDIX
Notice To
Employees
Posted by Order
of the
National Labor
Relations Board
An Agency of the
The National
Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We will not interrogate
our employees about their union activities.
We will not ask
our employees to report on the union activities of other employees.
We will not promise
benefits to employees in return for information about the union activities of
other employees.
We will not in
any other manner interfere with, restrain, or coerce our employees in the
exercise of their Section 7 rights protected by the Act.
Medical Express
Ambulance Service, Inc.