A-Medic Ambulance Service

National Labor Relations Board - Board Decisions

Mar 13, 1985

274 N.L.R.B. 938 (N.L.R.B. 1985)

938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Medic-Bus Service, Inc. d/b/a A-Medic Ambulance
Service and International Union of Electronic,
Electrical , Technical , Salaried & Machine
Workers, AFL-CIO, CLC, Local 204. Case 1-
CA-21606
13 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by International Union of
Electronic, Electrical, Technical, Salaried & Ma-
chine Workers, AFL-CIO, CLC, Local 204, the
Union, on 25 November 1983, the National Labor
Relations Board issued a complaint on 9 January
1984 against Respondent Medic-Bus Service, Inc.
d/b/a A-Medic Ambulance Service. The complaint
alleges that the Respondent is engaging in unfair
labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
On 23 July 1984 all parties to the proceeding
filed a "Stipulation of Facts and Motion to Trans-
fer Proceeding to the Board." The parties agreed
therein to waive a hearing before or decision by an
administrative law judge and to submit the case di-
rectly to the Board for findings of fact, conclusions
of law, and an order based solely on a stipulated
record consisting of the charge, complaint, answer
to the complaint, and the stipulation of facts.
On 26 September 1984 the Board approved the
parties' stipulation and ordered that the proceed-
ings be transferred to the Board Thereafter the
General Counsel and the Respondent filed briefs.
On the basis of the stipulation of facts, the briefs,
and the entire record in this proceeding, the Board
makes the following
FINDINGS OF FACT
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Since 1981 the Union has represented the Re-
spondent 's emergency medical technicians , wheel-
chair specialists, and dispatchers employed at its
Lowell facility. The Union's most recent collec-
tive-bargaining agreement with the Respondent
was entered into about 10 February 1983, remain-
ing in effect by its terms until 30 September 1983.
On 1 September 1983 the Respondent failed to
implement a scheduled 25-cent -per-hour wage in-
crease required by the agreement. Thereafter, the
Respondent also refused the Union's 28 September
1983 written request during negotiations over a
new agreement for certain economic and other in-
formation.' Throughout negotiations the Respond-
ent also took the position that it could not discuss
any economic proposals put forward by the Union
or sign any new agreement reached by the parties
because Chester Kelly, the owner of the Respond-
ent, was then being sued by another individual
claiming to be an equal owner of the Respondent
in a derivative shareholder's action in Massachu-
setts state court. Finally, on 5 December 1983, the
Respondent's road supervisor Paul Larkham told
an employee that the employees should form their
own union "because as long as the union bears an
IUE stamp they will never get anything from
Kelly."
B. Contentions of the Parties
The General Counsel contends that the Respond-
ent's above -described conduct violated Section
8(a)(1) and (5) of the Act.
The Respondent stipulated to, and therefore
admits, that it engaged in each of the acts alleged
by the General Counsel . Further, it effectively stip-
ulated , and therefore also admits , that all but one of
these acts were in fact unlawful . Thus, the Re-
I. JURISDICTION
The Respondent is a Massachusetts corporation
with an office and place of business in Lowell,
Massachusetts , where it is engaged in the operation
of an ambulance service. The Respondent annually
derives gross revenues in excess of $500,000 and
annually purchases and receives at its Lowell facili-
ty goods and materials valued in excess of $50,000
directly from points outside the Commonwealth of
Massachusetts. The parties stipulated and we find
that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
' The Union requested the following information summary income
statements (last 6 years and year to date for current period ), monthly
sales profit or loss data (last 36 months), capital expenditures and depre-
ciation figures (last 6 years and year to date for current period), new
order backlogs (last 6 years and year to date for current period), average
employment (last 6 years and year to date for current period ), total bar-
gaining unit hours, worked , and compensated or paid (last 6 years and
year to date for current period), current average hourly earnings includ-
ing a breakdown of fringe benefit cost (latest available figures ), a descrip-
tion of the plant 's products (last 6 years and year to date for current
period), product sales by major customers (last 36 months), audited
income statements (last 6 years and year to date for current period ), inter-
est interim supporting cost and expense schedules (last 36 months ), a list
of any extraordinary, unusual , or nonrecurring costs , writeoffs, or income
(last 6 years and year to date for current period), management reports or
analysis of the plant's performance (latest full year , and year to date), bal-
ance sheets (latest month and end of the prior year ), operating plan budg-
ets and forecasts (latest available figure), Federal income tax returns (last
6 years and year to date for current period), copies of reports for annual
survey of manufacturers reports (M A 100)
274 NLRB No. 139
A-MEDIC AMBULANCE SERVICE
spondent stipulated that its decision not to imple-
ment the 25-cent-per-hour wage increase violated
the terms of the collective-bargaining agreement
and was made without the consent of the Union;
that the economic and other information requested
by the Union during negotiations for a new agree-
ment was "necessary for, and relevant to, the
Union's performance of the function of negotiating
a contract"; and that Supervisor Larkham's state-
ment to an employee about employees forming
their own union "interfer[ed] with, restrain[ed] and
coerc[ed] its employees in the exercise of their
rights as guaranteed in Section 7 of the Act."
The Respondent's only substantive quarrel is
with the remaining allegation concerning its refusal
during negotiations to discuss the Union's econom-
ic proposals or to sign any new agreement ulti-
mately reached. Here, the Respondent interposes
the defense that the derivative shareholder's action
placed it in a position analogous to that of a
debtor-in-possession, thereby relieving it of its bar-
gaining obligations to the Union per the Supreme
Court's recent Bildisco decision.2 Applying the
same analogy, the Respondent further urges that
the Board should "withhold entering an order or
otherwise granting the charging party relief' with
respect to any of its alleged unlawful acts until a
final disposition by the state court in the derivative
shareholder's action.
C. Analysis and Conclusion
We find the Respondent's defense without merit.
The Respondent has nothing in common with a
debtor-in-possession. A debtor-in-possession's status
vis-a-vis its obligations under the National Labor
Relations Act is unique, being the product of the
specific statutory provisions of Chapter 11 of the
Bankruptcy Code, 11 U.S.C. § 1101 et seq. Clearly
nothing in those provisions, or in the Supreme
Court's Bildisco decision interpreting them, can be
read to provide similar status to a party which is
merely the defendant in a derivative shareholder's
Suit.3
Nor will we stay our order herein in favor of the
state court suit as urged by the Respondent. It is
well established that the obligations imposed by the
National Labor Relations Act are paramount to
any conflicting obligation which a state court order
2 NLRB v Bildisco & Bildisco, 104 S Ct 1188 (1984)
3 Moreover, the Bildisco decision specifically states that a debtor-in-
possession "remains obligated to bargain in good faith over the terms
and conditions of a possible new contract " 104 S Ct at 1201 Thus, even
if the Respondent was itself a debtor-tn-possession Bildhsco would not
support its refusal to even discuss the Union 's economic proposals during
negotiations for a new agreement
939
might impose on a party.4 In any event, the Re-
spondent has offered no evidence that any such
order has or would issue from the Massachusetts
court in the derivative shareholder's suit. As far as
the stipulated record reveals, that court has issued
no restraining order at all, much less an order spe-
cifically excusing the Respondent from its obliga-
tions under the Act. Nor has the Respondent of-
fered any explanation as to how its compliance
with the Act might ultimately subject it to liability
in the state action. Indeed, not so much as the com-
plaint in that action has been made part of the stip-
ulated record.
Accordingly, we find that the Respondent has
violated the Act as alleged.
CONCLUSIONS OF LAW
1. By failing to implement a scheduled 25-cent-
per-hour wage increase on 1 September 1983 as re-
quired under its contract with the Union, the Re-
spondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
2. By refusing since about 28 September 1983 to
provide the Union with the information it request-
ed, which is necessary and relevant to its function
as exclusive bargaining representative, the Re-
spondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
3. By refusing at various times during September,
October, and November 1983 to discuss any eco-
nomic proposals put forward by the Union for a
new contract, or to sign any new agreement
reached between the parties, the Respondent has
engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
4. By telling an employee that the employees
"should form their own union because as long as
the union bears an IUE stamp they will never get
anything" from the Respondent, the Respondent
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged
in unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action to
effectuate the policies of the Act.
The Respondent having unlawfully failed to im-
plement a contractually agreed-upon wage in-
4 See Grace Co, 84 NLRB 435 (1949), Zoe Chemical Co, 160 NLRB
1001, 1034 (1966)
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crease, we shall order the Respondent to make
whole its employees covered by that agreement for
any loss of earnings and other benefits they suf-
fered as prescribed in Ogle Protection Service, 183
NLRB 682 (1970), plus interest as computed in
Florida Steel Corp., 231 NLRB 651 (1977). See gen-
erally Isis Plumbing Co., 138 NLRB 716 (1962).
In addition, the Respondent having unlawfully
refused to supply the Union with the necessary and
relevant information it requested or to discuss any
economic proposals or sign any agreement reached,
we shall order the Respondent to furnish the Union
with the requested information and to bargain in
good faith with the Union over provisions for a
new agreement and sign any such agreement
reached.
ORDER
The National Labor Relations Board orders that
the Respondent, Medic-Bus Service, Inc. d/b/a A-
Medic Ambulance Service, Lowell, Massachusetts,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain over a new agreement
with International Union of Electronic, Electrical,
Technical, Salaried & Machine Workers, AFL-
CIO, CLC, Local 204, as the exclusive bargaining
representative of the employees in the following
appropriate unit.
All emergency medical technicians, wheelchair
specialists and dispatchers employed at its
Lowell and Lawrence bases, exclusive of
office clerical employees, guards, and all su-
pervisors as defined in Section 2(11) of the
Act.
(b) Refusing to furnish the Union with informa-
tion which is necessary and relevant to its function
as the exclusive bargaining representative of the
employees in the bargaining unit.
(c) Unilaterally changing and refusing to comply
with the provisions of its collective-bargaining
agreement with the Union by failing to implement
scheduled wage increases.
(d) Encouraging unit employees to abandon the
Union as their exclusive bargaining representative.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the unit employees con-
cerning terms and conditions of employment and, if
an understanding is reached, embody the under-
standing in a signed agreement.
(b) On request, make available to the Union the
information it requested on 28 September 1983.
(c) Make whole unit employees for any loss of
wages they sustained as a result of the failure to
implement the scheduled 1 September 1983 25-
cent-per-hour wage increase, in the manner set
forth in the section of the decision entitled
"Remedy."
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Lowell, Massachusetts facility
copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
5 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain over a new col-
lective-bargaining agreement with International
Union of Electronic , Electrical , Technical, Salaried
& Machine Workers, AFL-CIO, CLC, Local 204,
as the exclusive bargaining representative of the
employees in the following appropriate unit:
All emergency medical technicians , wheelchair
specialists and dispatchers employed at our
Lowell and Lawrence bases, exclusive of
A-MEDIC AMBULANCE SERVICE
office clerical employees , guards, and all su-
pervisors as defined in Section 2(11) of the
Act.
WE WILL NOT refuse to furnish the Union with
information which is necessary and relevant to its
function as the exclusive bargaining representative
of the employees in the bargaining unit.
WE WILL NOT unilaterally change and refuse to
comply with the provisions of our collective-bar-
gaining agreement with the Union by failing to im-
plement scheduled wage increases.
WE WILL NOT encourage unit employees to
abandon the Union as their exclusive bargaining
representative.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
941
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit.
WE WILL, on request, make available to the
Union the information it requested on 28 Septem-
ber 1983.
WE WILL make whole unit employees for any
loss of wages they sustained as a result of the fail-
ure to implement the scheduled 1 September 1983
25-cent -per-hour wage increase , with interest.
MEDIC-BUS SERVICE , INC. D/B/A A-
MEDIC AMBULANCE SERVICE