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,
Napa Ambulance Service, Inc., d/b/a Piner’s
May 30, 2008
DECISION AND ORDER
By Chairman and Member Liebman
On December 20, 2006, Administrative Law Judge James M. Kennedy issued the attached decision. The General Counsel filed exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief.
The National Labor Relations Board1 has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge, as modified below, and orders that the Respondent,
d/b/a Piner’s Napa Ambulance Service, Napa, California, its officers, agents,
successors, and assigns shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(a).
“Within 14 days from the date of this Order, rescind and remove from its files any reference to Rebecca Rosecrans’s August 22, 2005 unlawful warning, and within 3 days thereafter, notify her in writing that this has been done and that the warning will not be used against her in any way.”
2. Substitute the attached notice for that of the administrative law judge.
Dated,
_________________________________
Peter C. Schaumber, Chairman
_________________________________
Wilma B. Liebman, Member
(Seal) National Labor Relations Board
Appendix
Notice To Employees
Posted by Order of the
National Labor Relations Board
And Agency of the United States Government
The National Labor Relations Board had 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 issue you warnings because of your activities on behalf of the National Emergency Medical Services Association or any other labor organization.
We will not you that protected union activity is prohibited by other laws.
We will not in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will within 14 days, rescind and remove from our files any reference to our August 22, 2005 unlawful warning to Rebecca Rosecrans, and within 3 days thereafter, notify her in writing that this has been done and advise her that the warning will not be used against her in any way.
Napa Ambulance
Service, Inc.
d/b/a Piner’s
Christy J. Kwon and Cecily A. Vix, for the General Counsel.
Patrick W. Jordan (with Nanette Joslyn on brief),
DECISION
Statement of the Case
James M. Kennedy,
Administrative Law Judge. This case was tried in
Issues
The principal issues are whether Respondent disciplined and subsequently discharged Rosecrans because she was a Union activist. Warnings were issued to her on April 4, 2005,2 August 22, and August 30. She was also discharged on August 30. Respondent asserts that the warnings and the discharge were for good cause, i.e., that they were connected to Rosecrans’s behavior as an employee and had nothing to do with the fact that she was a known union activist.
The parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to orally argue and to file briefs. The General Counsel and Respondent have both filed briefs which have been carefully considered. Based upon the entire record of the case, as well as my observation of the witnesses and their demeanor, I make the following:
Findings of Fact
i.
jurisdiction
According to the pleadings, Respondent is a
ii. the
alleged unfair labor practices
Some
Preliminary Matters
Given the withdrawal of the
Background;
Preelection Matters
The
The administrative office is located on the same grounds
as several other Piner businesses in
There were four full-time dispatchers. Each worked a 12-hour shift. Day dispatchers worked from 7 a.m. to 7 p.m. The night dispatchers worked from 7 p.m. to 7 a.m. Rosecrans, for example, worked the daytime hours on one weekend day and Mondays, Tuesdays, and alternate Wednesdays. The other day-shift dispatcher was Donavan Balsley who worked Thursdays, Fridays, one weekend day, and the other alternate Wednesdays. The night dispatchers worked similar schedules; they were Hope Pruett and Andrea Gurule. The weekends seemed to vary a little more as relief dispatchers would often take one of those four shifts. A 48-hour workweek was common.
Balsley had become lead dispatcher in 2004. As the lead dispatcher, he was responsible for putting the schedule together for each month, in charge of their training and served as the point man for questions, including equipment repair. There is a small dispute, unnecessary to resolve, concerning whether he was also the person the on-duty dispatcher should notify in the event the arriving shift dispatcher called to advise he or she couldn’t get to work for some reason. There was also a standing procedure whereby open shifts were to be offered to off-duty dispatchers on a seniority basis.4
The office manager and company controller was, and is, Geri Bise. She has worked for the Piner’s companies for almost 20 years. In that capacity she was Balsley’s (and the dispatchers’) direct supervisor, though she did not carry out that responsibility in a hands-on manner. In large part the dispatchers required little oversight. They were a responsible group.
Bise came to work each day at 4 a.m. and worked till about 2 p.m. Others who worked in the accounting office were: Cheri Blaylock, the bookkeeper; Ed Herrera, the bill collector; Sherine Purdey, an administrative assistant; and Melanie Gomez, the ambulance billing clerk. Gomez came to work in the afternoon and worked into the evening; she was, as Purdey observed, a part-time worker. Herrera commonly served as a relief dispatcher. In August, Balsley began training Gomez and Meleah Mahoney to become relief dispatchers.5 Finally, the general manager until midsummer was Chris Piper, a long-term executive. He resigned abruptly and was replaced in July by Jeremy Piner, the owner’s son. Previously the manager of the bicycle shop, Jeremy became both Respondent’s acting general manager and its operations manager. Bise and the other department heads began reporting to him at that point. He still held both jobs when he testified. The corporate president is Gary Piner.
Rebecca
Rosecrans
Rebecca Rosecrans has been a dispatcher for Respondent since 2001. There is no dispute that until April 2005 she had been an excellent employee, even being named employee of the year in 2002. Geri Bise held her in generally high esteem. In 2004, the first crack in that reputation occurred when Rosecrans wrongly accused her friend Pruett of lying about the reason Pruett had given for an absence (car repair issues v. home refinance meeting). When Bise issued Pruett a warning about it, she learned that someone had likely misspoken. She didn’t revoke the warning to Pruett, but was nevertheless left to wonder whether Rosecrans had provided accurate information. Despite Rosecrans’s report, Pruett and Rosecrans maintained their personal friendship.
In March, or at least ‘at all material times’ according to a stipulation of fact, Respondent became aware of Rosecrans’s organizing activities: “At all material times Respondent had knowledge that Rebecca Rosecrans, Hope Pruett, and Craig Pitcher6 were the leaders of the Union organizing campaign, and Respondent also had knowledge that they were engaged in union activities.”
In mid-March, according to Rosecrans, Bise and others who worked in the office began giving her the silent treatment. Bise denies it, saying that on one occasion Rosecrans seemed upset about something and when she inquired, Rosecrans told her she didn’t want to talk to anyone, “. . . [S]he hadn’t slept well. Didn’t feel that good. Just didn’t want to talk. . . [T]he very next day I went back into the dispatch office with the same comment. And she said she just didn’t want to talk and to leave her alone.” So from then on, Bise did so. Even assuming Rosecrans should be credited over Bise, there is no evidence that this silent treatment had anything to do with her union activities.
April
Warnings
In early April, General Manager Chris Piper observed employee Dustin McNabb talking on his cellular phone while driving one of the ambulances in a nonemergency mode. Piper instantly called the ambulance on his Nextel walkie-talkie cell phone, spoke to McNabb’s partner Craig Pitcher and told them to stop it. A few days later he had a conversation with Pitcher to the effect that it was against the rules to have a personal cell phone in the ambulance. Pitcher, who says Piper told him it was a ‘coach counseling,’ did not agree that there is such a rule. The employee manual is subject to different interpretations. At pp. 55–56 it says: “Employees may not carry personal pagers or personal cell phones on their persons while on duty, to prevent interference with patient care or other responsibilities. Personal pagers or cellular phones. . . may be kept in quarters or onboard company vehicles. Cellular phones, either personal or company, may never be used [w]hile driving a company vehicle.”
The General Counsel cites this incident as evidence of union animus. And it is true that Pitcher was a union activist. Yet there is good reason to doubt that this is evidence of animus. First, there is no doubt that it is against the rule to drive an ambulance while talking on a cellular phone. That is what Piper called about, for he had seen the driver doing it. There is no evidence one way or another regarding whether he had recognized the driver as McNabb; he undoubtedly knew he had spoken to Pitcher. Second, there is no evidence in Pitcher’s personnel file of any discipline, assuming ‘coach counseling’ is the first step in the progressive disciplinary system.7 It seems to me that if it were a warning of any type which required a record be kept, one would have been. As I view it, this ‘coach counseling’ is nothing more than ordinary supervision—nothing more than a supervisor explaining the proper manner in which an employee is to conduct himself. It is not a warning at all. And certainly some sort of reminder needed to be made, even if Piper cited part of the rule incorrectly or spoke to the wrong employee (and who is to say that McNabb didn’t receive a similar lesson? No party inquired one way or the other). The important thing was to remind ambulance personnel that talking on a cell phone while driving was not allowed. Common sense, even without the rule, dictates the same.
Finally, there is no connection whatsoever to Pitcher’s union activities in Piper’s admonishment. It does not constitute evidence of union animus and certainly has no bearing on what happened to Rosecrans 6 months later. Not every chewing out, even those which are in part erroneous, is discriminatory. Both Pitcher and McNabb together comprised the ambulance crew. McNabb clearly erred when he spoke on his cell phone while driving. Piper was right to be concerned and to mention it to the more senior employee. His commentary amounted to nothing insofar as the disciplinary system was concerned. Pitcher may have thought the criticism unfair and perhaps it was, but it did not interfere with anyone’s Section 7 rights. It therefore does not qualify as animus which might inform us about what happened later to Rosecrans.
On April 4, 10 days before the NLRB election, Bise issued a ‘white slip’ to Rosecrans. None of the ‘warning’ boxes was checked and it may be reasonably assumed that this was a verbal warning, rather than a written one. It described Rosecrans’s ‘ongoing’ behavior which had begun on March 18, was repeated on March 21, and occurred again in early April. Bise cited as witnesses and complainants the three office employees, Blaylock, Herrera, and Gomez. She said: “Complaints have been stated by several employees, these complaints being brought to my attention individually. The statements are of nonwork-related conversations at the dispatch window often loud and very disturbing to their productivity. Also of extreme rudeness when asking a workrelated question.”
Rosecrans wrote on the slip: “I do not agree. I have been given the silent treatment for well over 3 weeks now by Geri and most of the acctg office staff.”
The mere fact of this warning, supported by the presumably valid complaints of the three office workers does not establish union animus. It is in no way connected to Rosecrans’s union activity. Contrary to Bise’s note, the loudness appears to have been work related—usually shouting through the outside window to drivers, according to Gomez. Bise had reason to believe the three office employees and Rosecrans’s response was not a denial. She offered no contrary version. The ‘silent treatment’ response did not address her coworkers’ complaint.
On April 14, the day before the representation election,
paramedic, Valerie Davis and her ambulance partner, Steve Dykstra were pulling
the 8 a.m. to 8 p.m. shift at the
The General Counsel observes that
I therefore find that the April incidents have no bearing on what occurred in August.
July–August;
Events Leading to Rosecrans’s Discharge
The
At 7 p.m., on August 16, another conversation took place
at that location. This resulted in
Melanie Gomez complaining to Geri Bise that the conversation had been loud,
about the
Gomez’ handwritten report about the incident focused both on Rosecrans’s voice volume and on the subject matter, the union negotiation meeting: “On Aug. 17 ‘05 I had witnessed an employee Rebecca Rosecrans talking loudly to Hope Pruett about the union meetings that had gone on during that day since Hope was one of the attendants. For approximately 45 minutes they proceeded to talk loudly about the union and issues that were discussed during that meeting, making it very uncomfortable for me. During this 45 minutes I became very uncomfortable and unproductive, and was ready to walk out early. I finished my shift and the next day in tears spoke to Geri about the situation and how uncomfortable I felt the previous day.”
None of the discipline boxes in the August 22 form was checked, and it would appear that this, like the previous one, was regarded as a verbal warning. Pruett, however, was not disciplined for the incident. It would appear that she escaped because Gomez was principally complaining about Rosecrans and Pruett was not implicated in a late punchout resulting in overtime pay.
In addition, according to Rosecrans, Jeremy Piner remarked
during the meeting that he equated speaking about the
Q. By Ms. Kwon: Okay. Tell us what you said to Geri, and what Geri said to you.
A. (Witness Rosecrans) I told her that I did not remember the conversation, but that Hope and I talked on a regular basis at shift change and other times. I did ask to see the supporting document. I asked to have a copy of it, but I was not given a copy of it.
At that time Jeremy Piner spoke up and said that talking about sensitive subjects such as the union in the office was distressing to others in the office. That it was the same as sexual harassment. That it was against federal law and they wouldn’t stand for it. I’d already been—I’d already had one warning for this that was not resolved, and here we are with another one. (Emphasis added.)
Aside from Piner’s injection, which carries legal consequences,
there are at least two suspicious factors here.
The first is why Gomez made any complaint at all. Gomez says she said nothing to either
Rosecrans or Pruett to interdict the situation “Because I know Hope, and I knew
that both Hope and Rebecca were big union supporters and they were very
intimidating and since it was two of them against just me, I didn’t want to
cause any disruption.” Gomez would have
us believe that she is easily upset by matters relating to the
As matters stand, Respondent simply observes that Gomez
burst into tears when making her complaint to Bise and was too weak to have
taken matters into her own hands by telling the two conversants that they were
interfering with her work. It’s a simple
matter for one employee to tell another to ‘keep it down; I’m trying to work
here,’ yet Gomez, who is 28 years old, somehow couldn’t find the gumption to
speak up in her own interest.9 She became tearful far too readily for an
adult. So the question is whether Gomez
has made a legitimate complaint about disruption (Gomez’ description of a
45-minute conversation, denied by Rosecrans, seems somewhat contrived) or
whether she simply can’t abide the
The second suspicion arises from Bise’s approach to Gomez’ complaint. Bise never asked Rosecrans for her version of what had happened that evening. Her first discussion with Rosecrans about the incident was during the meeting where she gave Rosecrans the warning, nearly a week after it happened. Moreover, Bise was very careful to couch her warning to Rosecrans in neutral terms. The subject matter of the Rosecrans-Pruett conversation was what had taken place at the negotiation session. That, of course, was protected union talk. The warning, supposedly, is not for the discussion’s subject matter, but for the volume of Rosecrans’s voice and for its length as well as the additional pay obligation. Bise knew the exchange was about union business, but focused on Rosecrans’ loudness, not the substance of the discussion.
Given the fact that she did not question Rosecrans about the incident, but simply took Gomez’ word, I am uncomfortable with her approach. Rosecrans had generally been an excellent employee and Gomez was known to be hypersensitive. There was good reason for Bise to be more thorough than she was. Even if Bise knew Rosecrans didn’t want to talk about social matters and was reluctant to speak to her, Gomez’complaint transcended that small hurdle and Bise’s failure to cross it must be a fact-finder’s concern.
There is a small discrepancy with dates here. Gomez says the incident occurred on August 17, which was a Wednesday. That would mean it occurred during the 7 p.m. shift change that day. Yet she dates her report August 17, after testifying that she came back to the office early the following morning to complain to Bise—who usually came to work at 4 a.m. Bise gave her the form, so it should have been dated August 18. Curiously, however, the dispatcher work schedule, found in Respondent’s .Exhibit 3, shows that Rosecrans did not work on Wednesday that week, probably because it was not her Wednesday. She did work on Tuesday, August 16, which is the date Bise used in the disciplinary report. So when did this incident occur? It was not on August 17 as Gomez says. Did Gomez wait a full day before reporting it? Or did she mistake the 16th for the 17th?
After August 16, Rosecrans was not scheduled to work again until the 20th, the fateful Saturday, so Bise’s seeming delay in delivering the warning is in fact unremarkable.
Given Gomez’ peculiar behavior, Bise’s carefully worded
warning, both being overlaid by Piner’s comment, I am unimpressed with the
manner in which Respondent handled this warning. Not asking Rosecrans for her version was not
entirely fair to her. It may properly be
asked why they did not. Was it because
Rosecrans was a known union organizer and/or because she was heavily involved
with the
August
20—August 30
Rosecrans was not initially scheduled to work the day shift on Saturday, August 20. It was initially assigned to Donavan Balsley, her day-shift counterpart and lead dispatcher. Balsley had opened the shift to others and, although Rosecrans could have taken the shift outright based on the seniority practice, did not do so right away. Because of that, the shift was given to collections agent Ed Herrera, who served as a relief dispatcher. At some point Rosecrans realized she was able to take the shift and bumped Herrera.
The General Counsel observes that on August 20, “a series
of unfortunate events occurred.” In my
opinion, “unfortunate” significantly underdescribes the scenario. Rosecrans lives in
For reasons of the heart, Rosecrans had a late night on the evening of August 19–20. She was to report to work that morning at 7 a.m. She overslept and did not awake until 6:50. She had absolutely no chance to get to work on time. Even an hour and 15 minute tardiness, such as this presaged, would put great strain on Respondent’s two-shift system, not to mention the harm to a shift skipped in its entirety. Here it would leave the night-shift dispatcher on duty without immediate relief in sight. Since it was a Saturday, Rosecrans thought there was no supervisor immediately available for anyone to consult. The only person was night dispatcher Hope Pruett, still on duty.
Rosecrans testified that the first thing she did that morning was to telephone Pruett at the dispatch office. She telephoned on her landline cordless telephone. She testified that as she spoke to Pruett, the telephone went dead. She tried again and was able to tell Pruett that she would be late. The phone went dead again. She testified that the instrument had been left off its cradle and had lost its charge. Her telephone bill shows only that one call was made at 6:59 a.m.
Rosecrans’ lateness that morning created a problem for
Pruett because she had scheduled an 8:30 test at a community college in
Curiously, Pruett contends that there were several telephone calls between her and Rosecrans after the first one about 7 a.m. Respondent’s telephone records do not show any calls during that time frame between the Company and Rosecrans. Nonetheless, Pruett asserts that they spoke several times and she assured Rosecrans that the shift would be taken by Gomez. Rosecrans agrees, despite the absence of any record proof the call was made. What number would Pruett have called, since the land line was dead and which, according to Rosecrans later, would not ring? Rosecrans’ cell phone? And, what phone did Pruett use? The Company records show no long-distance calls at that time. Did she have a cell phone of her own? If so, those records have not been presented. Moreover, she turned the dispatch tape recorders off while she tried to figure out what to do. Why? Did she think this was not company business? Was she trying to shield her friend Rosecrans by avoiding making a record? Wouldn’t that allow Rosecrans to make up a cover story for her lateness which could not easily be disproven?
Having received Pruett’s assurance that she’d only need to work for 45 minutes, Gomez agreed to walk over and begin the shift. In the meantime, Rosecrans was having difficulties of her own making. Once she had spoken to Pruett, she decided that she didn’t need to hurry because she presumed Gomez would want several hours work. As a result, she took her time getting ready to leave. She took a shower, had a leisurely breakfast and otherwise readied herself for work. When she was finished, about 8:30, she began looking for her car keys but could not find them. She said she looked high and low throughout her apartment and out to the car. She even searched her freezer and the planter box outside. She testified that she had panicked, thinking that the Company would use her behavior as an excuse to fire her.
Having spent much of the previous evening with her boyfriend, she said she went outside her building and, using her cell phone, called him on his, leaving a code (the missed call message) for him to call back. Since it was not a completed call, she explained, her cell phone records do not reflect it. The boyfriend was said to be a power line worker from Southern California who was working temporarily on a project in Yuba City or Marysville, around 50 miles from Davis. She testified that he later called back and told her he had her car keys, promising to return them after work that day. (Presumably, he had driven her car on their date the night before and had neglected to return the keys.)
Despite the fact that she says her cell phone worked well enough to call her boyfriend, she did not take any steps to use it to call Respondent. Instead, she let the matter go. To me she testified she had difficulty getting a cellular signal unless she went outside her apartment building. This inconsistency is troubling since she had done that very thing to call the boyfriend.
About 10:30, her cordless phone received a call from Donavan Balsley. She said, while crying, that she had awakened late, was unable to find her car keys and she was having a very bad morning. She explained that her keys might be with her boyfriend but she could not leave the house because she couldn’t lock it. Therefore, she testified, she told Balsley she was not coming to work. (Should one infer from that testimony, using negative pregnant logic, that while she didn’t have a house key, she did possess a spare set of car keys, yet didn’t want to admit it? Most people do have spare keys; it is foolish not to. Is her explanation concerning securing her front door credible? Modern entry doors can usually be locked without a key upon leaving; only a deadbolt could not be.) Why could she not testify that she did not have any keys at all, and stop there? If she had, that would have rendered her testimony about her inability to secure her door unnecessary. She testified that she behaved in this manner because she panicked.
In any event, the communication from Balsley was the first she had had with any individual who held scheduling responsibility. It was not until Balsely’s telephone call that anyone at Respondent, beyond Pruett, became aware that Rosecrans was not coming in. The next day Rosecrans wrote an incident report (GC Exh. 18), in an attempt to explain what had happened. The report is two paragraphs long:
I was unable to get to work on 8/19 [sic] (Day Dispatch)
because my friend inadvertently took my keys to work with him. He was unable to call me until almost 11:00
to let me know he had my keys because he was working on a pole in the
To compound the problem, I had overslept and was going to be late, anyway—but then discovered I could not find my keys. My home phone was not working properly because it had been left off the cradle charger for too long.
Clearly, this report is far from complete. It does not describe her first telephone call to Pruett; it does not discuss any further conversations she later claimed to have had with Pruett, particularly whether she had knowledge that Pruett had called Gomez in for temporary duty. Furthermore, it omits entirely the fact that she had a working cell phone. Nor does she describe the conversations she had with Balsley. Beyond that, there is no mention of whether she had a spare car key or whether she could not lock her door if she left. Finally, she does not try to excuse herself as having been in a state of panic. Yet all of these things were part of her testimony to me, either direct or implied.
While this was developing, Gomez had been wondering where
Rosecrans was, but had done nothing to get relieved. Pruett completed her business in
Unable to get anyone else to cover for the not-fully-trained Gomez, Balsley with Bise’s concurrence, made arrangements for the ambulance supervisor, whose station was adjacent to the office, to assist Gomez if she needed it. Balsley also told her to call him any time she thought she needed to.
Although Gomez successfully completed the shift, Rosecrans’ absence had created a circumstance which was risky and entirely avoidable. Gomez had not been cleared as a trained dispatcher, and although Pruett bears a great deal of responsibility,10 the entire incident was triggered by Rosecrans. Furthermore, Rosecrans’s honesty in describing the episode in her incident report and in her testimony before me is suspect. Assuming that she was telling the truth about her missing car keys, the fact remains that she never called the Company to tell them of her difficulty. She says she knew Gomez was covering, and also knew that Gomez was untrained. It was her responsibility to notify someone in charge or get to work as promptly as she could. Her explanation for failing to notify the Company that she could not come in at all seems hollow indeed. She testified that her cell phone worked when she left her apartment building. She had used it to call her boyfriend. Why did she not also call the Company with the cell phone, assuming that her cordless home phone was still inoperable? There is no explanation and it would appear to me that she was not dealing with the problem in an honest or responsible manner. Moreover, in her incident report she did not mention that she had a cell phone which was working that day. Why did she omit that from the report, but describe it to me? In any event, her testimony does not match the telephone records and her testimony about that morning is farfetched; indeed, extremely implausible.
On Sunday, August 21 (the day she wrote her incident report), Bise and Balsley sought to speak with Rosecrans, but she declined, saying she wanted union representation. Despite that declination, Respondent permitted her to work her scheduled days, August 21, 22, 23, and 27, 28. During that period management began sorting through the various reports it had obtained about the August 20 incident. As already noted on August 22, she did meet with Bise and Jeremy Piner, by then willing to talk. In that meeting Bise issued her the verbal warnings concerning the August 16 loud talking matter (described in more detail above) and a warning for ‘shift abandonment’ on August 20. According to Bise, Rosecrans told them that her ‘phones were not working.’ They asked Rosecrans why she couldn’t have used a pay phone or a neighbor’s phone, but she responded she didn’t know where to find one and for some reason she couldn’t ask her neighbors if she could borrow theirs. Unsurprisingly, that response was viewed as unsatisfactory.
On Tuesday, Bise and Balsley, apparently based on something Jeremy Piner had said, discussed the August 20 matter a little more, having doubts about the credibility of Rosecrans’s claim that her phone was not working on Saturday morning. They decided to pursue it further.
On Wednesday, Respondent’s management conducted a lengthy
meeting to discuss with its attorney Patrick Jordan the direction of its
ongoing collective bargaining. During
that meeting they also discussed the facts, to the extent that they knew them,
concerning Rosecrans’s August 20 behavior.
It had already issued her the warning for shift abandonment, but information
had now developed concerning Rosecrans’s lack of truthfulness. Company president Gary Piner, who apparently
had not been involved in issuing the earlier warning(s), but had asked for
information concerning what Rosecrans had said and done about the absence
itself, had become focused on whether Rosecrans had breached the company rule
requiring total honesty. The rule, found
in the employee handbook, is set forth in the footnote below.11 After the management team had consulted
with
Witness Jeremy Piner: Yeah, on Monday [August 22], Geri [Bise] and Donavan [Balsley] had come up that they had had a big problem, and they started coming up with facts and we started looking at them.
Q. By Mr.
A. One of the things that had come up is, you know, we could get a record of all this, our tape recording, we figured the tape recording would be working. I went in there personally, got the tape, took it back to my office where I have another recorder that can play these tapes at the rate that they need to be played at so, I reviewed the tape and the tape went off that morning12 and so we had no record of what had gone on.
Q. That morning being which date?
A. The morning of August 20th.
Q. On what day did you engage in that activity?
A. I believe that, the tape came up, I think it was Wednesday.
Q. Directing your attention to that Wednesday, and I’m hoping that it’s August 25th?13
A. That would be about right.
Q. Did you meet with me?
A. Yes.
Q. Was this a prearranged meeting?
A I recall that we were going to discuss Union negotiation items, preparing for a negotiation meeting coming up, I believe it was either the end of that week or the first of the next week.
Q Without reviewing what we discussed but confining yourself only to a topic, was the Rosecrans issues, as I’ll refer to it, a topic of discussion with me as your counsel?
A Yes.
Q For how long a period of time?
A We were in there for five hours. We had an exhaustive meeting.
Q Independent of communications with me during the course of that day, did you engage in activities relating to the investigation?
A Yes. We had gone over all these details with my father and Geri Bise to try to make a time line out of this make some sense out of it, because the stories were very convoluted and we determined that it became rather unlikely that the facts that were presented to us could be accurate.
Q My question was, independent of being with me, did you engage in activities regarding the investigation on August 25th?
A. Physical activities?
Q. Yes.
A. Yeah, I did inspect the tape that morning.
Q. Upon my departure, did you participate in a meeting to discuss what would be done with respect to Rebecca Rosecrans?
A. Yes, I did.
Q. Who else attended that meeting?
A. That was Geri Bise and my father, and myself.
Q. Where did the meeting take place?
A. In my father’s office.
Q. How long did the meeting last?
A. I don’t think it could have been more than a half hour, maybe an hour but, it definitely wasn’t more than an hour.
Q. Do you know what the conclusion was, what was said regarding the decision between the three of you?
A. Well, it was said basically --
Q. By whom?
A. I’m sorry?
Q. And by whom?
A. And by whom. Well, we all went around and around with the facts, because we wanted to make sure that everything was accurate, we were giving due process here. And it came down that—
Ms. Kwon: Your Honor, objection, not responsive.
Q. By Mr.
A. Okay. I concluded, as others concluded, that this had to violate our policy on line [lying].
Q. I’m sorry?
A. It had to violate our policies on line [lying].
Q. And was there some discussion as how that conclusion was drawn?
A. The phone calls and everything were—I mean we could not, I could not believe that the phone calls that were made, an[d] the omissions that were made, and that the time frame of three and a half hours to search a small apartment, and maybe a path out to the vehicle to find keys and—there were just so many facts that didn’t add up. I mean a dispatcher—
Q. Is this being discussed, by the way?
A. This was all discussed, all these details, we went over it exhaustively. And I determined there was—
[Objection interposed.]
The Witness: My, [pause] [T]he words that I used were that it had to be lying, the facts didn’t work out. It was not really believable that Rebecca, who we all knew or in my opinion I knew that she had [her] head about her, I didn’t believe that she could be panicked and unable to think and unable to respond. I also—I mean I didn’t believe that she couldn’t make the call. Her phone not ringing14 while it was charging, I’ve never heard of that. I’ve dealt with electronics a lot and I didn’t believe it at all. She may have not been able to pick it up for an extended period of time—
[Objection interposed.]
The Witness: So, anyway, I didn’t believe that the phone would not ring, and I still do not believe the phone would not ring.
Q. By Mr.
A. I was saying that the phone would have rang. She may not have been able to pick it up and speak for very long but, the phone would have been ringing. I also didn’t believe she was incapacitated to call in for three and a half hours. That did not make any sense to me either. And I believe that Geri Bise said that she believed it had to be lying also.
Q. What about your father?
A. There was no doubt in his mind. He stated that this had to be a case of lying.
Q. Was there any discussion about what lying meant in the context of your discussions?
[Clarification to witness omitted.]
A. Yes, yes.
Q What was said by who about the impact of lying?
A. Well, the impact of this lying?
Q. What was said and by whom, if Rosecrans was lying? The impact of her lying, what was said about that, if anything?
A. Well, the impact of her lie was I had stated that she had left this position and made a dangerous situation out of it by effectively having an inexperienced person come and replace her. I know that my father stated that, you know, we had a zero tolerance policy on lying and this certainly qualified.
Q. Anything else that was discussed by the three of you during the course of this meeting?
A. As far as details?
Q. Anything else?
A. Anything else? I can’t recall anything else at this time.
Q. Have you exhausted your recollection?
A. Yes.
Q. Rebecca Rosecrans was on the
A. Yes.
Q. Was the fact of her Union activities discussed by the three of you during the course of this meeting?
A. No. It had no bearing on our decision.
Q. Was it discussed?
A. Was it discussed?
Q. The fact that she was on the committee?
A. Yeah, actually I would say that we did discuss it.
Q. Was that topic discussed when you met with me for five hours?
A. I would say yes.
Q. Now, let me ask you this question, did we
fire Rebecca Rosecrans because she was on the negotiating committee and was a
leader in the
A. No.
Q. What was she fired for?
A. She was fired for lying.
On August 28, for reasons not explained in the record, Rosecrans turned off the dispatch tape recorders, including the emergency tape recorder required under Respondent’s ambulance contract with the county.
On August 30, after a bargaining session where she served
as the
Respondent operates two tape recorders in its dispatch office. It is not entirely clear how they operate, but at least one is voiced-actuated and records office sounds, not just telephone conversations. One is tied to the county’s 911 emergency dispatcher. Respondent’s contract with the county requires that recorder to be active at all times. The second was Piner’s backup and had the same requirement. It is not entirely clear, but it appears that Respondent’s dispatchers had drifted into a practice which was inconsistent with the contract’s requirement. In July, Balsley had issued a memo which restated the policy that the tape recorders were to be left on at all times. All the dispatchers, including Rosecrans and Pruett, signed the memo in acknowledgment of its receipt. Despite signing the memo, at least some dispatchers did not take it seriously. Pruett had turned the dispatch tape recorders off during her call to Rosecrans concerning her lateness on August 20. That meant, when Jeremy Piner tried to investigate company records concerning Rosecrans’ August 20 behavior, there was nothing to review. Within a week, Rosecrans turned them off herself.
There is employee testimony, to which the General Counsel points, that Respondent had both permitted and trained employees to allow them to turne the recorders off while making personal calls. Balsley denied that he trained dispatchers in such manner. Frankly, I am of the view that neither the employees who gave the testimony nor Balsley are entirely correct; he had been seen turning them off himself. Balsley had not been the lead dispatcher all that long (about a year when the incidents occurred) and the previous lead dispatcher had been a night-shift employee whose command of the situation on other shifts left much to be desired. In my view this is simply a matter of “drift;” over several years it was a practice which, while contrary to outstanding rules, had taken root without close oversight. Nevertheless, Respondent had always been bound to the county contract obligating the employees to maintain an audio record. Indeed, a county review would have required corrective measures. Balsley’s July memo was a reasonable remediation as Respondent’s management came to isolate the issue.15
iii. analysis
and conclusions
Reviewing the remaining complaint and the arguments made by counsel for the General Counsel concerning purported union animus harbored by Respondent, I have come to the conclusion, mentioned somewhat piecemeal in section II, that most of the facts cited in support of the allegations concerning Rosecrans must be rejected. For the most part, they are simply irrelevant. The first, the April warning for repeatedly talking too loudly was clearly not aimed at any union connection. The complaints were entirely valid and reported by every employee who worked in the administrative/accounting office. Rosecrans was being disruptive and the conversations about which the staff was complaining have not been convincingly demonstrated to have been a union activity. It sounds mostly in general boisterousness, perhaps impelled by a feeling of empowerment as the union drive got off the ground. But there has been no showing that her union activity was the basis of the office employees’ complaints.
Similarly, the warning to fellow union activists on the
ambulance side shortly after the mid-April NLRB election had no bearing on what
Respondent was faced with in August when Rosecrans began to pile up her
transgressions. The nondisciplinary
admonition to Pitcher concerning cell phone usage in the ambulances and the
verbal warning to
The warning issued to Rosecrans on August 16 following Gomez’s complaint stands on different grounds. The strongest reason to conclude that the warning was discriminatory is Jeremy Piner’s equating union talk to sexual harassment. This parallel is simply false. Union activity, including union talk, is protected by law—specifically, Section 7 of the Act. That protection is not easily lost. Sexual harassment, on the other hand, is unlawful from the outset. Unwanted and coercive sexual overtures are not protected in the workplace; such conduct is forbidden by law.
Here, it is undenied that Jeremy Piner, in discussing with
Rosecrans the nature of Gomez’ complaint, acknowledged that he knew the
conversation was about the
Frankly, Bise’s analysis of the circumstances were far more insightful than Piner’s. She understood that the conversation’s subject matter was off limits, but that interference with another’s work was not. And, of course, that is how she wrote the warning. Even so, neither she nor Piner independently inquired about Rosecrans’ perception of what happened that evening. Nor does it appear that they asked Pruett about it. That failure means they simply took Gomez’ tearful word for what happened.
Objectively, Gomez’ complaint should have been viewed more skeptically. The fact that she was in tears should have been of little import; she cries far too easily. Her inability to control her tearfulness suggests that she is not seeing things as they are. Besides, leaving aside her minor date discrepancy, what can one make of the fact that she was not in tears at the time of the incident, but had been so reduced some 9 or 10 hours later when she went to Bise? Isn’t her response backwards? Surely the normal sequence would be reversed: cry first when the incident happens and become cool about it later. As an objective matter, there is much about Gomez’s behavior and report which lends itself to rejection. Skepticism needed to be applied. Yet Bise and Piner accepted it uncritically.
Collectively, Piner’s equating (on a logic basis) lawful union talk with unlawful sexual behavior, his and Bise’s failure to recognize the inherent unlikelihood of Gomez’ story, and their failure to ask Rosecrans and/or Pruett their version of what had happened, all lead to the conclusion that the warning was really to interdict lawful employee talk about union affairs. Why else would Piner have made his remark?
Accordingly, I find that the August 22 warning is Section 8(a)(1). Although separately alleged as an 8(a)(3) violation, I do not deem it necessary to make such a finding. The remedy would remain the same.
Furthermore, that warning, being part of the progressive
discipline procedure, can be seen as animus of such a nature as to support the
finding of a prima facie case for the §8(a)(3) allegation that Respondent
suspended and discharged Rosecrans on September 30 because she was a union
activist. Indeed, all the elements of a
prima facie case are present. Respondent
has stipulated that it knew Rosecrans was a union activist and it had, of
course, observed her in her duties as the
The question at that point, as mandated by Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and approved by NLRB v. Transportation Management Corp., 462 U.S. 393 (1983) is whether Respondent has rebutted the prima facie case by demonstrating that it would have suspended and discharged her despite her protected activity. I find that it has met that burden of rebuttal.
While the ultimate reason for her discharge, according to Jeremy Piner, was her lying in breach of the company rule requiring honesty, that rationale must be viewed in context. Her August 20 behavior is the starting point. Regardless of the reasons why she did not appear for work that day, the fact is that she failed to do so.. In some ways what happened was worse than simply not coming in. After telling Pruett she would be late, she then failed to update any responsible person at work that she had decided not to report all.
Of course, Balsley had learned from Pruett that Rosecrans had said she would be late that morning. Yet she never appeared. Respondent could certainly view Rosecrans’s statement as a broken promise, if not, upon further examination, a lie. It certainly denied Respondent time to find a proper replacement for Gomez.
Next, Rosecrans’ (announced) tardiness resulted in an untrained person being assigned to work in Respondent’s most sensitive position, emergency ambulance dispatcher. She acknowledges Pruett told her Gomez had agreed to come in. That alone should have alerted her to stay in touch with the office until she knew a fully trained person was serving as the dispatcher. But she decided to take a relaxed approach. We know that she did not call anyone to update her circumstances; indeed, it was not until Balsley called at 10:43 that Balsley learned she was not coming in at all, adding that since she didn’t have her keys, she couldn’t leave her house because she couldn’t lock the door. That call occurred 3 hours and 43 minutes after her expected reporting time. The fact that she had stayed home for that long without notifying anyone meant she knew she was behind the eight-ball. She also knew if anyone focused on that fact, she would need a story of some kind to credibly explain why she had not called. The truth would be an admission of misconduct. At that point she had one known warning outstanding, the April white slip concerning talking too loudly. Concern about the impact of that slip would have been present, but not overpowering had she called Dispatch, Balsley or Bise within a reasonable time after her 7 a.m. conversation with Pruett. But she did nothing until 10:43, when Balsley called. That eliminated any possibility that she could still provide an acceptable excuse—one that may well have been accurate—the lost key situation.
What was difficult to explain was why she hadn’t telephoned. If Balsley had not called, it is reasonable for Respondent to have concluded that she never would have advised anyone at the Company what was happening and she knew it. She needed an explanation and chose to assert that her cordless phone had been off its charging cradle too long and she couldn’t use it. What she didn’t mention in her incident report was that she possessed a working cell phone. She also didn’t mention that fact during the August 22 meeting with Bise and Jeremy Piner. Instead, she gave what must have been viewed as a cock-and-bull story about an inability to borrow a phone from an apartment neighbor and that she didn’t know where to find a pay phone. This was viewed, when further scrutinized, as a lie to cover up the fact that she had no good reason not to have called. Furthermore, Jeremy Piner could reasonably believe that her cordless phone would ring so long as it was in its charger/cradle, meaning he thought Gomez’ call had been ignored. She did have the caller ID feature on her phone. Curiously, it was working only a few minutes later when Balsley called and she admits she saw it was he, so she answered. I, too, doubt that her phone would not ring.