Alert Medical Transport

National Labor Relations Board - Board Decisions

Sep 26, 1985

276 N.L.R.B. 631 (N.L.R.B. 1985)

ALERT MEDICAL TRANSPORT
Brocal Corp . d/b/a Alert Medical Transport and
District 1199C , National Union of Hospital and
Health Care Employees , Division of RWDSU,
AFL-CIO. Cases 4-CA-12912, 4-CA-13446,
4-CA-13446-2, and 4-RC-15186
- 26 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 26 July 1984• Administrative Law Judge
Nancy M. Sherman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an, answering
brief.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge' s rulings, findings, I and
conclusions2 and to adopt - the recommended
Order.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and - orders, that the Respondent, Brocal
Corp. d/b/a Alert Medical Transport, Philadel-
phia, Pennsylvania, its officers, agents, successors,
and assigns, shall 'take the action set forth in the
Order, except that the attached notice is substituted
for that of the administrative law judge.
i The Respondent has excepted to some of the judge's credibility find-
ings. 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 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We correct three minor factual errors in the attached opinion that do
not affect the result in this case ( 1) The Respondent did not change em-
ployee James Robert Postell 's shift on 22 April 1982 along with its
change in employee David Gelb's shift (2) Aide Robert Cummings had,
but aide Stephen Griffin had not, attended a union meeting before the
Respondent eliminated the aide classification 29 October 1982 (3) The
election petition was filed 15 October 1982, not 14 October as the judge
said in sec II,C,l,d of her decision
2 The Respondent excepted only to Conclusions of Law 5b , 5c, and 6
that certain employee terminations and an employee suspension violated
the Act The Respondent has not excepted to Conclusions of Law 4, 5a,
5d, and 5e that the Respondent violated Sec 8(a)(1) and (3) of the Act
We conform the notice with the judge 's recommended Order
In view of the Respondent 's numerous "hallmark" violations,
Member Dennis does not find the passage of time and the evidence of
employee turnover sufficient to mitigate the seventy and pervasiveness of
the Respondent 's conduct . See her concurring opinion in Regency Manor
Nursing Home, 275 NLRB 1261 (1985) Accordingly, she agrees that a
bargaining order is an appropriate remedy under NLRB v Gissel Packing
Co., 395 U S 575 (1969)
631
IT IS FURTHER ORDERED that the election in
Case 4-RC-15186 is set aside and that Case 4-RC-
15186 be dismissed.
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.
Section 7 •of the Act gives employees these rights.
To organize' '
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT remove union buttons from your
clothing, . forbid you to wear union buttons, or
threaten to discharge you for wearing union but-
tons; but we can restrict the wearing of union but-
tons during working hours while employees have
contact with the public, if such a restriction is mo-
tivated by a legitimate nonpretextual reason which
does not involve any element of union animus or
discrimination between union insignia and other
forms of insignia.
WE WILL NOT forbid you to pass out union cards
or to distribute union literature to employees of
other employers, off company premises and at
times when such activity would not interfere with
employees' work; or threaten to discharge you for
such conduct.
WE WILL NOT forbid you to talk with profession-
al union, organizers off company premises at times
when such activity would not interfere with em-
ployees' work.
WE WILL NOT tell you that the advent of Dis-
trict 1199C, National Union of Hospital and Health
Care Employees, Division of RWDSU, AFL-CIO
had caused us to delay giving a wage increase, is
causing us to delay efforts to get , a better insurance
plan, and might interfere with our ability to
remedy vehicle safety.
• WE WILL NOT imply to you that insurance bene-
fits would be improved if District 1199C- was no
longer on the scene.
WE' WILL NOT tell you, 'for the express or im-
plied purpose of discouraging your union sympa-
276 NLRB No. 66
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thies, that we will try to - improve your • wages, Mack Ball Deborah Jenkins
hours, and - working conditions , try to settle your Kevin Charity Douglas Johnson
grievances , and might effect some improvements. Robert Cummings James Knight
WE WILL NOT give you the impression ` that we Patrick Dumas Theresa Mason
have engaged in surveillance of a union meeting. Irene Frazier Stephanie Matthews
WE WILL NOT interrogate you in a manner con- h, T omas Freeman Joseph Middleton
stituting interference , restraint , and coercion, about
'
Carla Garner Kimberly Ross
your own and other employees ' union activities, Stephen Griffin Betty Twymanand about contact with the National Labor Rela-
tions Board. Y Phillip Jardine Gary Williams
WE WILL NOT reschedule company meetings in
order to interfere with your attendance at union
meetings. `
WE WILL NOT threaten you that . we will close
the business , change its name ,. -move to another
town, or do whatever is necessary to keep from be-
coming unionized.
WE WILL NOT threaten to discharge you for
union activity.
WE WILL NOT tell you that we will not negotiate
with a union under my circumstances.
WE WILL NOT threaten you that our ' business
will be shut down if employees attend a union
meeting and/or that, in that event , you will be re-
sponsible for-other employees ' -unemployment and
will probably suffer physical harm from - them . for
having them lose their jobs.
WE WILL NOT threaten you that the business will
shut down if District 1199C gets in.
WE WILL NOT engage -in ,surveillance of a union
meeting. - - •
WE WILL NOT relieve you of the requirement to
have timecards - signed before performing overtime
work ; give you turkeys and insurance books; "lay
you off, discharge, you , or suspend 'you; change
your work schedules ; - or otherwise discriminate
with regard to your hire.-or tenure of employment
or any term ' or condition of employment; to dis-
courage membership in District - 1199C or any other
labor organization.
'WE WILL NOT . discharge you or otherwise dis-
criminate against you . because you -have flied
charges or given -testimony under -the Act. - •
WE WILL NOT in any other manner interfere
with , restrain , or coerce you in the exercise of your
rights under the Act:
WE WILL offer Rachel Bell, Emanuel Criniti;
and John Williams immediate and full reinstatement
to the jobs of which they were unlawfully de-
prived or, if such jobs no longer exist, substantially
equivalent jobs, without prejudice - to their '-seniority
or other rights and privileges previously enjoyed.
- WE WILL offer the following employees immedi-
ate and full reinstatement to jobs as aides, without
prejudice to-- their seniority or other rights and
privileges previously enjoyed:
WE WILL make all- 21 of these employees whole,
with interest , for any loss of pay they may have
suffered by reason of their unlawful termination
and Rachel Bell's unlawful suspension.
WE WILL remove from the files of all 21 of these
employees` any reference to the unlawful personnel
actions taken again them ; and notify them in writ-
ing that we have done so and that evidence of suchl
unlawful personnel action will not be used as a
basis for future personnel actions against them.
'On 12 October 1982, a majority of our employ-
ees in the appropriate unit had signed cards author-
izing District . 1199C to represent them . Because of
some of our conduct which the Board has found to
be unlawful , the Board has found that District
1199C's loss of the election on December 30, 1982,
was not a result of employees ' free choice , and that
employee sentiment about ' union representation
would be better protected by a bargaining order
than by a rerun election . WE WILL , on request, rec-
ognize and bargain with District 1199C as the ex-
clusive. representative of the employees in the fol-
lowing appropriate unit, and .embody in a signed
agreement any agreement reached:
All station wagon drivers , van drivers, bus
drivers, ambulance drivers, drivers 2, dispatch-
ers, emergency medical technicians , car wash-
ers, aides , service mechanics ,, light mechanics,
night mechanics , daytime mechanics , parts,em-
ployees, and garage, cleaning and building
maintenance employees employed by us at our
50 Laurel Street , Philadelphia , Pennsylvania
facility, exluding office clerical employees,
guards and supervisors as defined ` in the Act.
BROCAL CORP . D/B/A ALERT MEDI-
CAL TRANSPORT
Gail Lopez-Henriquez Esq., William Slack, Esq., and
Judith Katz, Esq., of Philadelphia , Pennsylvania, for
the General Counsel.
Daniel C. Cohen . Esq., of Philadelphia, Pennsylvania, for
the'Company.
Miriam L. Gafni; Esq., of Philadelphia , Pennsylvania, for
the Union.
ALERT MEDICAL TRANSPORT 633
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge.
These consolidated cases were heard before me in Phila-
delphia, Pennsylvania, on July 11-13, 15, 18-20, 1983. In
the unfair labor practice cases, the charges were filed on
May 3, 1982, and January 6 and February 7, 1983. The
initial consolidated complaint issued, on February 18,
1983; the second consolidated complaint issued on April
1, 1983, and was amended on July 11, 1983.
The complaint alleges that Brocal Corp. d/b/a Alert
Medical Transport (the Company) engaged in certain
unfair labor practices on various dates before July 29,
1982. More specifically, the complaint alleges that before
that date, the Company violated Section 8(a)(1) of the
'National Labor Relations Act by engaging in and creat-
ing the .impression of surveillance over union activities,
by threatening its employees with reprisals for union ac-
tivity, by telling an employee that selecting union repre-
sentation would be futile, and by interrogating employ-
ees. The complaint further alleges that the Company vio-
lated Section 8(a)(1) and (3) of the Act about April 22,
1982, by changing the work schedule of employee David
Gelb.
On July 30, 1982, the Regional Director approved an
informal settlement agreement executed by the Company
and by Gelb, the charging party in Case 4-CA-12912.1
On October 20, 1982, the Regional Director advised the
Company-that this case had been closed on compliance
conditioned on the Company's continued observance of
the terms of the settlement agreement, which contained a
clause that the Company did not admit any violations of
the Act. On March 2, 1983, the Regional Director noti-
fied the Company that he was reopening Case 4-CA-
12912 and withdrawing approval of the settlement agree-
ment because of the Company's alleged failure to abide
by its terms.
The complaint alleges that on various dates between,
September and December 1982 the Company violated
Section 8(a)(1) of the Act by threats of reprisal for union
activity, creating the impression of surveillance over
union activity, prohibiting union activity on "company
time" or during working hours, forbidding-employees to
wear union buttons, interrogating employees about union
sympathies and activity, promising employees benefits
for rejecting District 1199C, National Union of Hospital
and Health Care Employees, Division of RWDSU,
AFL-CIO (the Union), telling employees that the Com-
pany was withholding improvements in working condi-
tions because of the union campaign, attempting to in-
timidate an employee by saying that the Company knew
he would vote for the Union, and changing the date of a
mandatory company meeting with employees in order to
interfere with the right of employees to attend a union
meeting . The complaint in its final form goes on to allege
that'the Company violated Section 8(a)(1) and (3) of the
Act, on various dates between October 21, 1982, and
January 27, 1983, by giving employees turkeys; by giving
employee Philip Jardine a booklet explaining insurance
i The caption on the instant complaint does not mention Gelb
benefits, by relieving him of the requirement to have 'his
timecards signed before performing overtime work, and
by thereafter discharging him; by suspending and there-
after discharging employee Rachel Bell; and by discharg-
ing 18 more employees. Also, the complaint alleges that
about February 2, 1983, the Company violated Section
8(a)(1), (3), and (4) of the Act by discharging employee
John Williams. The complaint goes on to allege that at
all times since October 12, 1982, the Union has been the
exclusive representative of the employees in an allegedly
appropriate unit, and that the alleged unfair labor prac-
tices set forth in this paragraph call for the entry of a
remedial bargaining order.
The petition in the representation case was filed on
October 15, 1982; a hearing was conducted on Novem-
ber 5, 1982. On November 29, 1982, the Regional Direc-
tor directed an election among the Company's employ-
ees. The election was conducted on December 30, 1982,
and was lost by the Union, which thereafter filed timely
objections tracking some of the unfair labor practice alle-
gations in the complaint. On February 10, 1983, the hear-
ing on these objections was consolidated' with the hear-
ing in the unfair labor practice cases. -
On the entire record,2 including the demeanor of the
witnesses, and after due consideration of the brief filed
by the General Counsel and adopted by the Union, and
also the brief filed by the Company, I make the follow-
ing
FINDINGS OF FACT
1. JURISDICTION
The Company is a Pennsylvania corporation which
provides ambulance, paramedical, and medical transpor-
tation services. At all times-relevant here, the Company
has maintained its main business office on 13th Street in
Philadelphia, Pennsylvania. Until July' or August 1982,
the Company's garage facilities (which include an office,
2 Owing to the court reporter's handling of the exhibits, the status of
some of them is difficult to determine from the exhibit folders G C Exh
33 for identification (which is the same document as R Exh 16) and R
Exh I for identification (see infra fn 23) were correctly marked by the
reporter as having been identified but not offered , but were included in
the exhibit folders, moreover, R Exh I is listed on the folder cover. R
Exhs 14 for ' identification and 28 ' for identification (see infra fn 62),
which are identical , are both included in the exhibit folder R Exh 28
for , identification was correctly marked by the reporter as.having been
rejected, and is not listed on the folder cover However, R Exh 14 for
identification, not listed on the folder cover, was marked by the reporter
as having been received , although the transcript of testimony shows that
it was rejected R Exh 37 for identification , listed on the folder cover, is
marked merely as having been identified , but the transcript of testimony
shows , that it was rejected R Exh 23 for identification was included in
the exhibit folder, was marked as received , and is listed on the folder
cover, although the transcript of testimony shows that this document was
in fact rejected (see infra fn 90) The reporter 's index does not list R
Exhs I or 2 for identification, and inaccurately states that G C Exh 33
for identification was withdrawn
After the close of the hearing, the General Counsel moved to, remove
R .Exhs 28 and 37 from the admitted exhibits , on the ground that they
were rejected This motion is granted with respect to R Exh. 37 for
identification . As to R. Exh 28 for identification, this motion is disposed
of by reiteration of my action on the hearing record in granting the Com-
pany's request to include that document , and also R Exhs 23, 26, and 27,
in a rejected -exhibit folder
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parts warehouse, repair shop, and mechanics' facilities)
were located on 33d Street in Philadelphia. These facili-
ties were then moved to 61st Street in Philadelphia. At
the time of the July 1983 hearing, the garage, facilities
had' just been moved to Locust Street in Philadelphia.
During the year preceding the issuance of the second
consolidated complaint, the Company's gross revenues
exceeded $500,000. During that same period, the Compa-
ny received at its 61st Street facility products, goods,
and materials valued in excess of $50,000 from firms
which are located in Pennsylvania and received such
products, goods,-and materials from firms located outside
Pennsylvania. I find' that, as the Company admits, it is
engaged in commerce within the meaning of the. Act,
and that assertion of jurisdiction over its operations will
effectuate the policies of the Act.
The Union is a labor organization within the meaning
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES AND
THE ALLEGED OBJECTIONABLE CONDUCT
A. Alleged Presettlement Unfair Labor Practices
On April 16, 1982, at the suggestion of several fellow
employees, employee David Gelb spoke to union orga-
nizer John Reid about organizing the Company's em-
ployees. Gelb and Reid decided to try to' get up a meet-
ing of employees on Thursday, April 22. Gelb prepared
small handwritten slips of paper saying, "Party Thursday
8:00 p.m., 1319 Locust Street," the address of the union
hall. Between April 17 and 22, he distributed about 80 of
these slips to his fellow employees during lunchbreaks,
while the Company's drivers were waiting at, the gas sta-
tion to fill gas tanks on the Company's vehicles, and
while the drivers were standing by at, various hospitals.
"Very" many of the employees, who totaled about 110
at that time, were interested and enthusiastic, and said
that they were going to attend.
On the morning of April 22, the day of the union
meeting , David Gelb gave a "Party" slip to employee
Charles H. Whitaker, a chief dispatcher (not claimed'to
be a supervisory position). Whitaker put it on the bulletin
board About noon, Executive Director of Operations
Robert Corban (admittedly a supervisor) called Whitaker
into Corban's office. Also present were Director.of Op-
erations Violet Corban (Robert's wife, and admittedly a
supervisor) and then assistant dispatcher Harry T. John-
son II . Robert Corban asked whether Whitaker had
known anything about "David's party." Whitaker said
no. Corban asked whether Whitaker was going to attend;
the record fails to show 'what, if anything, Whitaker re-
plied. Corban said that he felt the "party" was part of an
attempt "to organize the Union," and that he wanted to
know whether any employees were going to attend. The
record fails to show what reply, if any, was given.
Corban further said that he did not think the Union had
"general support" because the majority of the people
there would not be working "if it wasn't for" the Com-
pany. Corban said that he believed that Company Presi-
dent Albert Schwartz was willing to close the business,
change the name , move to another town, or do "what-
ever. was necessary to keep from becoming unionized,"
because the Company's contracts allowed no flexibility
as to employees' pay.
That same day, Gelb, who was an emergency techni-
cian. on an ambulance whose driver was employee James
Robert Postell, told Postell about- the union meeting
scheduled for that evening. About 2:30 p.m., they re-
ceived instructions over the radio of their vehicle to
return to "base" (a frequently used term referring to the
garage facilities) to speak to Robert Corban. Gelb en-
tered Corban's office alone. Corban' said that he had
heard that Gelb was a "very busy guy.", Gelb said yes,
that on the following week, he would be taking examina-
tions at the Community College of Philadelphia, which
he was attending at night. Then, Corban showed Gelb a
slip -of paper which looked like a "Party" slip which
Gelb` had given to one of the dispatchers. Corban said
'that he knew it "wasn't a party " Gelb said, "Well, you
know what kind of cards I have in- my hand." Corban
said that the Company had grounds for firing Gelb for
lateness, and that he had been suspended for lateness.
Gelb said that the suspension' was for something other
than lateness ..Corban said, "Well, we'll have to look into
that," and that the Company was not going to fire Gelb
"at this time." Corban further said that he had been in
"unions" and had nothing against them, but that the
Company would not negotiate with a union under any
circumstances. Corban went on to say that if anyone
went to the meeting that night, on the following Monday
the Company would be padlocked, Gelb would be re-
sponsible for the unemployment of all the men, and he
would probably suffer physical harm-from these men for
having them lose their jobs. Corban told David Gelb to
send Postell in and to go back to work.
When Postell went into the office, he encountered the
Corbans. Robert Corban said, "I heard that you and
Dave was kind of going to get up a union." Postell said,
"It's not me, you talk to Dave .. . the only thing I'm
doing is doing my job. That's all I'm doing." Robert
Corban asked Postell whether he was going to the union
meeting. Postell said no, that he was going to go home
and eat. Robert Corban said that the Union was not
going to work because "we had this before." He showed
Postell some Medicare and Government welfare docu-
ments which allegedly showed that it was impossible for
a union to come in because the Company did not have
enough money to pay the men. Robert Corban said that
if the Union got in , the "place" would be shut down
Monday, and everybody who worked for the Company
would be out of a job.
At 4 p.m. that day, as the teams on, the 8 a.m. to 4
p.m. shift were coming into "base" in order to turn in
their records and'clock out, Robert Corban , Bus Manag-
er Leonard Wearing (admittedly a supervisor), and Per-
sonnel Manager Ruth Gross3 instructed the employees
This title is used in the Company's brief The General Counsel al-
leges, and the Company denies , that Ruth Gross was a supervisor within
the meaning of the Act The Regional Director's Direction of Election,
issued on November 29, 1982, found that she was a supervisor At the
time of the hearing , she no longer worked for the Company I agree with
the Company that her status is now moot
ALERT,MEDICAL TRANSPORT 635
that if anyone went to the meeting that night, the Com-
pany would be padlocked on Monday morning.,
Every day the Company posts a.work schedule for the
following day. Gelb clocked out and started for the gates
to the parking lot. Robert Corban yelled out Gelb's
name , and Wearing asked Gelb whether he had seen the
new time schedule. Gelb went back and looked at the
schedule. Effective the following day, he and Postell had
been transferred to the 4 p.m. to midnight shift from the
8 a.m. to 4 p.m. shift. Beside Gelb' s name was a star and
the notation "permanent ." Because Gelb was a night col-
lege student, he had never before been scheduled to
work at night. As previously noted, he had mentioned
his forthcoming night school examinations to Robert
Corban earlier that day. Also, at the beginning of every
term, Gelb had given the Corbans a copy of his class
schedule. After inspecting the schedule, Gelb turned
around and saw Robert Corban "gloating." Gelb said,
,All you've been doing all day is coercing these employ-
ees, and this is nothing but retaliation." Then, Gelb start-
ed to walk away. Corban followed him out, calling him
a "Jew bastard." Then, Corban, who is a large man,
walked up so close to Gelb, a man of average build, that
their bodies were physically touching, and told Gelb to
get off Corban's property, that Gelb was trespassing.
Corban then spit on the ground.
After the end of the 8 a.m.-4 p.m. shift, during Robert
Corban's customary postshift conversation in his office
with Whitaker and Johnson, Corban asked them whether
they had intended to go to the union 'meeting that
evening .. Whitaker said no; Johnson did not reply.
Corban asked Whitaker if he knew anyone who intended
to go to the meeting and who was scheduled to work be-
tween noon and 5 p.m. The record fails to show Whi-
taker's reply, if any. Corban said that the Company
could not stand any attempts at unionization.
That evening, Gelb telephoned an unidentified dis-
patcher to find out whether Gelb was still in the Compa-
ny's employ. The dispatcher said that nobody was avail-
able to talk to Gelb, but he was still- scheduled for the
night shift on the following day.
That same evening, Gelb and his girl friend (not a
company employee) walked the few blocks from -his
home to the union headquarters in order to attend the
union meeting . On his way, he saw the Corbans driving
a company vehicle three or four. doors away from and
going toward union headquarters. Only one employee
besides Gelb attended the, meeting . That employee,
whose name is not shown by the record, said that he had
seen the Corbans parked out front observing the front
door of the union headquarters. Gelb looked out the
window and saw the Corbans parked out front. On the
following morning , just before the shift began, Robert
Corban told employee Whitaker that Corban had been in
front of the union hall ; that "they" had observed three
people, two of whom he believed to be employees, enter-
ing the hall;. and that he felt there was no widespread
support for a union. ..
On April 23, Gelb worked the night shift as scheduled.
He was assigned to work with an emergency medical
technician' named Garcia. Garcia's regular partner,, Sal
Rachicce, told Gelb that he was very disappointed at not
working with Garcia any more, because Rachicce and
Garcia were friends and worked well together. After
April 23, Gelb was assigned to the day shift. On the fol-
lowing week, which was the last full week of Gelb's em-
ployment, his partners were frequently changed, and
were called into the office after each shift These were
very irregular practices. '
The initial charge herein was filed by Gelb on May 3,
1982. About the end of that month, Robert Corban asked
Whitaker whether he had been in touch with the Nation-
al Labor Relations Board about Gelb. Whitaker said that
the Board had been in touch with him. Corban asked
what Whitaker had told the Board. Whitaker replied that
he, had told the Board the truth.
B. Alleged Postsettlement Unfair Labor Practices
1. Background
At the end of August 1982, the union campaign was
resumed at the Company's garage facility. Employees
distributed union cards to other employees at the., facility
in the bathrooms, garage area, and lunch area, and in
front" of and across the street from the facility. Between
October 2 and December 28, eight union meetings were
held. At the first of these meetings, an organizing com-
mittee was formed. Beginning in October, union organiz-
er John Reid came to the facility it least twice a week,
and talked to a number of the workers at the plant gate.
The parties stipulated that-by October 12, 1982, 3 days
before the petition was filed, 76 out of no more than 135
unit employees had signed authentic and operative cards
designating the Union as their collective-bargaining rep-
resentative.
2. Alleged unfair labor practices not shown to have
occurred after the petition was' filed
The area served by the Company includes two build-
ings , called Bala Cynwyd No. 1 and Bala Cynwyd No.
2, which accommodate at least some doctors' offices.
About late September or early October 1982, driver
Duane Clark was directed to pick up a patient at Bala
Cynwyd No. 2.4 Robert Corban and Company President
Albert Schwartz, who were riding in Corban's vehicle,
overheard on the Company' s radio communication
system a conversation between Clark and the dispatcher
about how to get to the patient 's address. Schwartz got
onto the radio and mistakenly gave Clark instructions
about how to get to Bala Cynwyd No. 1.5 The patient's
doctor telephoned "base" about the delay, " base" re-
layed to Corban and Schwartz the doctor' s complaints
about the delay, and Schwartz became very angry at
Clark's difficulties, after 3 years' employment with the
Company as a dispatcher and then a driver, in finding
the location where he was supposed to pick up the pa-
tient . After Clark's return to "base," Corban called him
into the office and reproached him for'the delay in'pick-
ing up the patient . Clark said that this reprimand for
something that was due at least partly to Schwartz' erro-
neous 'directions was unjust, and that the issuance of
unjust reprimands was "why a lot of people were going
for the Union." Corban said that if the matter had been
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
left up to Schwartz, Schwartz would have fired Clark on
the spot; and that if Clark had been union-represented, in
Corban's opinion the Union would not have regarded
that discharge as unjust. Corban asked Clark whether he
was for the Union or not: Clark said that he was unde-
cided.6
3. Alleged'unfair labor practices between the
petition and the election; alleged objectionable
conduct
a. Alleged independent violations of Section 8(a)(1)
(1) Allegedly unlawful restrictions on employee
Duane Clark's distribution of union cards and union
literature; allegedly unlawful interrogation of
employees Earl Conners and John Williams by
Robert Corban
At the time the petition was filed, Company Public
Relations ' Director Rona Schwartz, Company President
Albert Schwartz' daughter, told Robert Corban that em-
ployees Phillip Jardine (who' initiated the August 1982
union drive) and Earl Conners (who had promised to
"back [Jardine] up" if he decided to go through with, a
union drive) were, part of a " steering committee" that
wanted to negotiate with the Company. Corban testified
that he asked Conners about' that.
Robert Corban testified, without contradiction or cor-
roboration, that shortly after the petition was filed, he re-
ceived complaints from two ambulance companies that
two of the Company's "teams" were interfering with the
ambulance 'companies ' "people" and passing out litera-
ture while these company employees were going to and
from the hospital. The record fails to show whether
these allegations were true. The Company' s ambulance
"teams" included, 'and perhaps consisted of, one "team"
of John Williams -and Duane Clark, and another "team"
of Kevin Dillard and an employee whose identity is not
disclosed by the record.
. The Company called, employee Duane Clark into the
office. Present were the Corbans and (perhaps) Company
President Schwartz. Robert Corban said that he had re-
ceived a report from two, other ambulance companies
that two young men in the Company's -employ had been
out in the street passing out union -cards and union litera-
ture on company time , and that Schwartz had said. that
,Clark could be fired for passing out union cards on com-
pany time. Robert Corban further said that the employ-
ees were not to carry union literature in company vehi-
cles, pass . it out to other employers' employees and "stop
people from working," or pass it out to other employers'
employees "while you are working on company time."
4 My finding about the date is based on Clark's testimony Corban tes-
tified that this incident occurred "probably sometime in November, in
that general grouping of time somewhere " -
This finding is based on Clark 's testimony , which I credit in view of
the Company 's failure to call Schwartz as a witness Corban testified that
Schwartz gave instructions about how to reach Bala 'Cynwyd No 2.-
e My findings as to this incident are based on a composite of credible
parts of Clark 's and Corban's testimony-.I believe that Clark was mistak-
en in testifying that Corban said "that if the Union was in , [Clark] would
have been fired " Corban did not deny questioning Clark about his union
sympathies '
He said , "I don't care ' what you do on your time, just
don't do it on my time." Robert Corban went on to say
that he did not care whether the Union got in or not be-
cause he would still' have a job.7 In addition, Robert
Corban told Williams, Dillard, and. his partner about
these complaints from the ambulance companies, and
told these employees that they could not carry union lit-
erature in their vehicles, 'pass it out and stop people from
working, or pass it out "while you are working on com-
pany time."e The record fails to show what, if anything,
any of these three employees said during these inter-
views. -
About the third week in December, Robert Corban
-approached driver Williams and said , "I heard that you
were stopping some of my drivers on the street .from
working and talking about the Union." • Williams -denied
stopping Corban's drivers on the street. Corban said,
"good, just as long as you don't stop my drivers-keep
my drivers from working." Williams' turned and started
to walk away. Corban called him back' and said, "I want
to hear exactly what you' feel . . . about the Union."
Williams said that he did not stop any of Corban's work-
ers from working. He said that he would speak for the
.Union when both he and other employees had free time
because they were waiting for clients.
(2) Allegedly unlawful interrogation of and promise
to Duane Clark by Rona Schwartz
Rona Schwartz is the Company's director of public re-
lations , the daughter of Company President Albert
Schwartz 'and ;board of directors member Estelle
Schwartz, and admittedly an agent of the Company. In
early November, employee Duane Clark had a conversa-
tion in the office with Rona Schwartz in the Corbans'
presence. Rona Schwartz said "some negative things"
about the Union, including a statement , in connection
with health care, that "they don't like to pay their bill."
Clark said, "well, if the Union is like that, I wouldn't
want them representing me." She asked whether Clark
was for the Union or not . He said no .9 The two dis-
cussed Clark's need for transportation home in the after-
noons in view of a recent change in his hours. She said
that she knew someone in his neighborhood who might
be able to take Clark home. A few days later, Clark
again told her about his need for' a ride home every
afternoon. She said, "I think I know how you're going to
'vote in the Union; I can,possibly do something."
r My findings about the Corban-Clark conversation are based on a
composite of credible parts of their testimony
8 My finding in this sentence is based on Robert Corban 's uncontra-
dicted testimony Williams was not asked about this conversation Dillard
did not testify and, so far as can be divined from the record , neither did
his unidentified partner The complaint does not allege that Corban's re-
marks to Williams and Dillard were unlawful
8 Clark put on a union button a few weeks later, and wore it through-
out the rest of the campaign notwithstanding efforts by management to
induce him to remove the button (see infra part II,B,3,a,(3))
ALERT MEDICAL TRANSPORT 637
(3) Allegedly unlawful removal of union button
from employee Criniti 's clothing , allegedly unlawful
threats of reprisal for wearing union buttons, and
allegedly unlawful restrictions on wearing union
buttons; alleged impression of surveillance
At a union meeting on November 16, 1983 , the union
organizers distributed to those present some blue and
white buttons which bore the word "committee ." Orga-
nizer Reid urged the employees to start wearing these
buttons on the job the next day, in order to show their
support for the Union. 10 -
Driver Emanuel Criniti put on his button the follow-
ing morning before leaving for work . He reached the
Company 's facility about 15 minutes before he was sup-
posed to clock in. He went to a lunch truck which was
parked on the street in front of the facility , and bought
some refreshments . As he was standing there , and infer-
entially in his driver 's uniform (see infra fn. 98), Robert
Corban came up to 'him, yanked the button off, and said,
"We don 't go for that [obscenity] here .. . if I catch
you wearing it again , you're out ." As Corban said this,
he looked around at four or five other employees who
were standing at the lunch truck with Criniti. The
record fails to show what their jobs were.
About the following day, Robert Corban told a group
of employees , some of whom were wearing buttons, that
they were not to wear buttons on their uniforms, and
that if the employees wore • buttons on their uniforms
they would have to punch out. One of these employees,
driver Rachel Bell , removed her button from her uni-
form and placed it on her handbag , which she. carried
with her on the job from time to time , at least . Nobody
ever complained to her about the button on her handbag.
The record fails to show the job classifications of the
other employees who were present when Robert Corban
issued these instructions , or what (if anything) they did
with the buttons which some of them were then wearing.
Bus Manager Wearing testified that on a date he was
not asked to give, Robert Corban told him that "any-
body who was wearing the buttons were not to be wear-
ing them on company uniforms." Wearing went on to
testify , "Anyone I saw wearing [the buttons] on compa-
ny uniforms , I told -them about it . Anyone who wore
them without the company uniform , I said nothing." A
day or two after receiving a button at the November 16
union meeting , driver John Williams came to work with
a button on his hat , which is not part of the company
uniform and which he obtained from the United States
while on military service . Wearing told him that he was
not supposed to be wearing "that button like that." Wil-
liams asked why . Wearing said that "he [inferentially,
Robert Corban] knows that it was handed out at the
union meeting that [the button -wearers] attended ... the
Company didn 't want you wearing the button . . . be-
cause you're saying you 're in support of the Union . . .
[Robert Corban] is going to want to talk to you later on
.. . about you wearing the button ." Williams continued
10 My finding as to the date on which the buttons were distributed is
based on the testimony of Reid and employees Rachel Bell and Emanuel
Cnniti I believe employees John Williams and Duane Clark were mistak-
en in giving October dates
to wear the button that day. After he had completed his
run that day , - Wearing told him that `Robert Corban
wanted to see him in the office . When Williams entered
the office , Corban told him that he was not supposed to
be wearing "that button ." Corban went on to say, "I
know . you got that from the union hall because . . .• I
know you attended the meeting down there . You re-
ceived the button ." Williams asked how Corban knew
that the button , which merely said "committee ,"_ was a
union button . Corban opened his desk drawer , pulled out _
some literature which he said was from the Union, and
also pulled out another "committee" button . i i He said,
"This is how I know this is yours , but I want you to take
the button off because . . . you were down in the .union
hall . . . people told me exactly-because I heard what
was going on down there ." Corban then gave an almost
word for word account . of what had been said at the
union meeting where the buttons had been given out (cf.
supra fn. 11). Corban said that he could fire Williams for
wearing "That button there , like that ." Williams said that
union organizer Reid had told him otherwise . Corban
told Williams to talk to Reid to "get it clarified of
whether or not I can fire you for wearing that
button," and to let Corban know what.Reid said . Corban
went on to say that in the meantime , Williams could
keep wearing his button on his hat, but that he could not
wear it on his uniform.12
The .following week, Reid advised Williams that
Robert Corban could . not fire him for just wearing the
button , as long as it was not on the uniform or "anything
like that." A week after Williams ' first conversation with
Corban , Williams asked to speak to him again. Williams
told Corban that Reid had said that Williams could not
be fired for wearing the button as long as it was not on
his uniform. Corban said , "You can go on to hell and
keep . . . wearing the button , but when this is all over
with , I can bring you up on charges."
Bus Manager Wearing testified that about December
17-that is , about 3 weeks after Williams ' second conver-
sation with Corban-Corban told Wearing that Corban
did not want union buttons to be worn "on company
uniforms , on company time." Corban was not asked
about this conversation . Wearing repeated this alleged
statement to Williams , who said that he was wearing his
own clothes , and-if he was on his own time , he could
wear the button . When asked why , Wearing told Wil-
liams to remove the button from his hat, which Wearing
testified is not part of the company uniform , Wearing
said , "Because he was wearing a company uniform."
Williams continued to wear the button until the election,
but removed it thereafter.
A few days after the November 16 distribution of the
buttons , Robert Corban asked driver Duane Clark, in the
Corbans' office and in Violet Corban's presence , to take
11 Corban testified that after an employee ("I believe" Bernard Atkins,
whose job is not shown by the record ) had given him a button, Atkins
said that he had been told he had to wear it, and Corban told him that he
could not wear it on the company uniform . Atkins' name does not appear
on any of the sign -in lists made available at union meetings
12 My -finding in this sentence is based on a composite of Williams' tes-
timony on direct and cross-examination and Corban 's testimony
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his button off his uniform "because it wasn't part of the
company outfitting : . . Mr. Schwartz didn't appreciate
union buttons on his uniforms." Two or three days later,
bus manager Wearing told Clark, who was wearing a
button on the lapel of his shirt, "you shouldn't wear that
button on company uniform because you could 'be
fired."13 A day or so later, ambulance manager Anthony
Renzulli, admittedly a supervisor, 'told Clark that he
should take-the button off his uniform. About the same
day, Robert Corban told a group of seven or eight uni-
formed employees with buttons, including Clark, "those
buttons are not "to be worn on uniforms. If you don't
want to take them off, you can punch out." On an undis-
closed date,' Wearing told employee Vincent Horsey to'
remove his button, which he was wearing on the lapel of
what was inferentially his uniform shirt. Clark continued
to wear his button, inferentially on his uniform, through-
out the campaign.14 The record fails to show what the
others did.-
Except for supervisors and office employees (for all of
whom uniforms are optional), all the employees in the
garage facilities; were required to wear uniforms. t 5 These
uniforms consisted of jackets, shirts, and trousers for men
and jackets, blouses;: and slacks for women. Until shortly
after-the election, the uniforms were green and tan; but
otherwise like regular khaki garments, and bore the
Company's logo. 1 s By the' date of the union meeting
where the, buttons were distributed, drivers were, (so far
as the record shows) the, only active employees in the
election unit who had contact with the. public. There is
no evidence that any member of the public ever com-
plained about (or even mentioned) the "committee" but-
tons. In May 1983, more than a month after the issuance
of the instant complaint alleging improper company con-
duct in connection with the "committee" buttons, a may-
oralty primary election was conducted in Philadelphia.
The Company instructed employees not to wear political
buttons on their uniforms. Robert Corban testified. that
"nothing" is to be worn on the company uniform. This
rule is not ' in the "employees operational procedures" or
other materials ordinarily given to newly hired employ-
ees. Aside from management's statements about the
union insignia and the political buttons, there is no evi-
dence that the Company ever told employees not to
wear, or that employees ever attempted to wear,, any-
thing on their uniforms.
(4) Allegedly unlawful restrictions on contacts with
union organizers
In early October, before the, beginning of employee
Phillip Jardine's scheduled shift, he engaged in a conver-
sation in front of.the Company's facility with a ' union
representative. Robert Corban observed this conversa-
is This finding is based on a composite of Wearing 's and Clark 's testi-
mony.
14 Clark continued to 'work for the Company until July 1983 , when he
quit
18 See Violet Corban's testimony at the November 1982 representation
case hearing
16 Shortly after the election , the Company started using different uni-
forms They did not bear the Company's logo, but a few employees
transferred the logo from old uniforms to the new ones
tion, told Jardine that he knew this individual worked
for the Union, and further said that he did not want Jar-
dine to talk to any union representatives or organizers
"on [Corban's] time.", Jardine was not late clocking in
that morning. Jardine saw no reason to change his way
of talking to the organizer thereafter, and did not do so,
but took Corban's statement as a warning.
There is no evidence that any paid professional orga-
nizer ever tried to contact an employee at "base" during
the contacted employee's working hours. A letter to em-
ployee John Williams dated December 17, 1982, post-
marked December 20, and bearing the signatures of
Albert Schwartz, Greenberg, and the Corbans, states,
inter alia:
Away from the terminal you can expect that the
paid Professional Organizers of the Union will be
contacting you by leaflets, meetings and telephone
calls. Under the law we were forced to give the
union our [employees'] addresses so-that the Union
may also try to, visit you in your homes. Of course
you have no obligations to let them in your homes
if you don't want them in. Here at the base the paid
professional organizers may continue to try to con-
tact- you to campaign for your votes during working
hours. Please note that we ask you to not carry on
such discussions during working hours.
The phrasing of the letter suggests that it is a form
letter intended to be sent to a number of different people.
Moreover, the envelope appears on its face to have been
addressed by use of a mechanical device for addressing
numerous letters; rather than individually. I infer that
this letter was sent to the electorate generally.17
(5) Allegedly unlawful statement about withholding
of benefits
Some time in November, the Company held an em-
ployee meeting where the Company was represented by
Greenberg, the Corbans, Albert Schwartz, and (perhaps)
Rona Schwartz. -A company representative said that
before Christmas, the Company was supposed to give ev-
eryone a 30-cent raise and a turkey. Albert Schwartz,
Robert Corban, and Greenberg said that they had papers
written up on a general wage increase, but could not use
them at that time because the Union was about to step in
and "it would seem probably like a bribe." Each of the
employees in fact received a turkey (see sec. II,B,3,c),
and at least some employees in fact received a 30-cent
raise (see infra fn. 101). Employee Duane Clark, -who
was the only witness who testified about this meeting but
whose testimony is uncontradicted, testified that he did
not know whether this 30-cent increase was the subject
of the Company's reference at this meeting to a held-
back raise.
17 The Company 's postheanng brief states at one point (p ; 35) that this
letter 'was sent "presumably , to all voting employees." Elsewhere, the
Company's brief states (at 33) that the letter was sent to one employee.
ALERT' MEDICAL TRANSPORT
(6) Allegedly unlawful promise of improved
medical- benefits
On an undisclosed date in 1981, the Company took out
a group medical and life insurance plan for its employ-
ees. In the latter part of that year, the Company re-
viewed the plan and decided that, for 1982, benefits
would be increased by adding dependent coverage.
About the end of December 1981, the Company con-
ducted an employee meeting at which the Company ex-
plained the change.' 8 Between about October 1981 and
an undisclosed date in early 1982, the sponsoring insur-
ance company was a company whose name is not shown
by the record, but which was not the New York Life In-
surance Company. On an undisclosed date during this
period, the Company began to distribute among its em-
ployees booklets which carried the name of the current
insurance company and described the 'insurance plan.
About early 1982, that insurance company was bought
out by New York Life.
On October 20, 1982, the Company conducted an em-
ployee meeting as a part of the Company's campaign to
bring about the-Union's defeat in the representation elec-
tion. All employees at the garage facility were required
to attend and were paid for their time there, but no
action was taken against employees who did not show
up. An attendance record was made of this meeting, in
order to determine who was going to be paid. The meet-
ing was attended by one or two New York Life repre-
sentatives. A company representative at that meeting said
that the Company was thinking about improving the em-
ployees' medical coverage by adding prescription drugs
coverage.19
On an undisclosed date in late 1982 but before Decem-
ber 28, management conducted a review of the insurance
program and decided to add such prescription-drug cov-
erage . On December 28, the Company conducted an-
other employee meeting at which this improvement was
announced. The complaint does not allege that -the Com-
pany violated the Act by announcing or' effecting this
improvement.
(7) Alleged- unlawful promise of improved pension
benefits
The Company had set up a pension plan effective June
1, 1981. The plan, which is administered by the Compa-
ny, was designed by Consulting Group, Inc., which pro-
vides consulting and actuarial services to employers for
their employee benefit plans. No contributions. were re-
quired from participants. Persons on the Company's pay-
roll were notified as they acquired coverage.20 A person
18 However , as of July 1983, material distributed to newly hired em-
ployees states that "Dependent coverage will not be provided " '
19 My findings in these two paragraphs are based on credible parts of
the testimony of Greenberg , Bell, and Robert Corban , and on inferences
therefrom I believe that Bell was confused in testifying that the. New
York Life representatives were introduced as representatives of a "new
company that Alert was thinking of dealing with," and that. they were
concerned with the Company 's pension plan as well as its insurance plan.
20 This finding is based on Greenberg 's testimony , indirectly corrobo-
rated by John Williams I attach little significance to Robert Corban's
failure to receive such a notification , in view of the very small number of
639
on the Company's payroll automatically acquired cover-
age under the plan when he reached the age of 25 and
had worked for the Company for 1 year. Very few per-
sons who worked for the Company ever met both of
these requirements.'
On December 8, 1982, the Company held an employee
meeting as part of the Company's effort to bring about
the Union's defeat in the representation election. This
was the first employee meeting at which Consulting
Group representatives told the employees as a group
about the pension plan. Nor had the Company ever con-
ducted a pension plan meeting without Consulting
-Group representatives, so far as the record shows. The
Consulting Group representatives had never explained
the pension plan to employees individually. At this De-
cember' 8, 1982 meeting, each employee was given- a 14-
page "summary" of the pension plan, which summary
had been available since the summer of 1982 but, had
never before been generally distributed to the Company's
employees. Each employee was asked to fill out a form
designating the beneficiary of "any death benefit for
which I may be entitled to name a beneficiary under the
plan"? 1 The first sentence in the "summary" states, "All
employees, other than employees whose terms and con-
ditions of employment are determined by a collective-
bargaining agreement , unless the bargaining agreement
provides for participation, are eligible to participate in
the Plan." '
John Williams testified that, during this meeting, the
Consulting Group representatives described new retire-
menf and medical insurance' plans which were better
than the existing plans and which ' (unlike the plans "if
you was in the union") would cost the ' workers nothing.
He went on to testify that at this meeting, the Company
distributed to each employee a questionnaire asking
whether : he was interested in' the new retirement plan so
described: Williams' initial description of the eligibility
requirements for the alleged new retirement plan was the
same as what those standards in fact were under the ex-
isting plan, and he was unable to remember any other
difference between the alleged new plan and the existing
plan or the union plan he allegedly compared with them.
Further, he erroneously testified that the existing pension
plan was at least to some extent described in the booklet
which described the Company's insurance plan.
Company Secretary-Treasurer Greenberg testified that
at least one purpose of this meeting was to explain
"changes [in the pension program] that possibly were
going ' to ` be instituted the following year." Alex Johns,
one of the Consulting Group representatives who attend-
ed the meeting, testified that so far as he could recall,
changes ' in the pension plan were not discussed. As of
the July 1983 hearing, the plan had remained unchanged
from its June 1981 inception. I conclude that the evi-
persons who, like him, were covered as of the June 1981 effective date of'
the plan . ' '
21 This situation would arise if the employee died before the payment
of retirement benefits began, or if the employee had elected to receive his
pension benefits in the form of a minimum number of annuity payments
and he died before receiving that number
640- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence fails preponderantly to show that changes were in
fact discussed during this meeting.
(8) Rona Schwartz' alleged unlawful promises of
benefit to employee Bell
On a day between December 8 and Christmas 1982,
Rona Schwartz asked employee Rachel, Bell to come to
the office. After Bell arrived, Schwartz said that she did
not feel that the employees needed a union. She said that
if the employees did not have a union, the Company
would try to improve working conditions and benefits
and give them more working hours. In response to a
question from Schwartz about Bell's hours,- Bell ex-
pressed dissatisfaction with having been taken off the job
of driving United Cerebral Palsy (UCP) clients to a
bowling alley- on alternate Saturdays, and asked
Schwartz to look into the matter. Schwartz said that all
she could do was ask. Bell asked why she was not an
"M.T." (medical transportation) driver. Schwartz said
that she did not know, but would ask the Corbans about
the matter and see what she could do about obtaining
that job for Bell
Bell asked why the employees had not received a raise
in June. Schwartz replied' that she did not know, but that
the Company would give the employees a raise at
Christmas. Schwartz said that the employees were al-
ready receiving some of the benefits the Union was of-
fering, such as a health plan and an in plan, and
asked Bell what improvements she wanted the Union to
get her. The record fails to show what, if anything, Bell
said in reply. Schwartz further said that the employees
'could speak about their grievances, individually or as a
group, to herself, her father, or the Corbans, and man-
agement would try to settle the employees' grievances
and might effect some improvements. Bell replied that
she did not think that would work.
(9) Robeit Corban's alleged unlawful interrogation
of employee Williams, promises of benefit to him,
and statement fo him that the Union had caused
withholding-of benefits
About December 23, Robert Corban called employee
John Williams into the office. Both - Corbans -were
present. Robert Corban showed Williams some financial
records which (Corban said) showed that the Union was
"broke." Robert Corban went on to say that the Union
needed the employees' support in order.-to get out of
debt. Also, Robert Corban showed Williams some
records which stated that the Union's efforts to organize
several other companies had resulted in "arrest and vio-
lence and a lot of workers would lose their jobs." Robert
Corban said, "You don't want this to happen_here at
Alert . . . but this is what will happen if you continue
on with this Union . . it will result in violence and
some of your fellow workers will lose their jobs." Wil-
liams asked how he knew that. Robert Corban said that
he had ways of finding out things if he wanted to know
them.
Corban asked Williams how he felt about the Union.
Williams said that the Company's medical insurance plan
was "garbage" and that his doctor would not accept
Williams' insurance card on the ground that the doctor
would "never get my money • out of these people."
Corban said that a lot of doctors and hospitals would not
accept the Company's existing plan. He went on to say
that the Company was going to try to get a better insur-
ance plan, but "I can't right now because my hands are
tied because we're involved in the union thing right
now." Williams complained that some. of the vehicles to
which he was assigned were unsafe. Corban said that he
could not do anything "right now" about the condition
of the vehicles because "his hands were tied again . . .
because . . . he was involved with the union thing."
Corban went on to say, however, that he would try to
make the vehicles safe "anyhow." Corban made some
more comments against the Union, and Williams made
some more comments for it. Corban remarked that Wil-
liams was "militant" and -a "hothead," did not seem- to
see things Corban's way, and was "all for the Union.'.'
(10) Alleged unlawful change in date of company
meeting to date of union meeting
At the Company's front gate on • the morning of
Friday, December 24, 1982, Union Organizer Reid and
(perhaps) 'employees Bell and John Williams. began to
distribute to the employees cards which stated that union
meetings would be conducted at 1 and 7 p.m on Tues-
day, December 28. Reid resumed this distribution activi-
ty about 6 a.m. on Monday, December 27. A number of
the employees who came to work that morning informed
Reid that a company meeting had been scheduled for
Wednesday, December 29, -but had been changed- to
Tuesday, December 28, at the same time when one of
the union meetings was scheduled.22 When Bell arrived
at the facility that morning, before the 7 or 7:30 begin-
ning of her shift, Reid gave her some more announce-
ment cards to distribute, but told her that someone had
told him that there had been a change in the date. of the
company meeting. She said, "Let me go in and see for
myself." Then she went into the facility, looked at the
notice (see infra), and returned to Reid with the report
that the date had indeed been changed. She and Williams
continued to distribute announcement cards until clock-in
time.
Bell gave uncontradicted, internally consistent, and un-
impeached testimony that on Monday, December 27,
before 7 a.m., she saw posted in the lunchroom a docu-
ment in ink which read as follows (emphasis added for
reasons which will appear):
NOTICE TO ALL'
ALERT EMPLOYEES
THERE' WILL BE A GENERAL MEETING
HERE ON Tues., December 28th, 1982 at 7:30 P.M.
YOU WILL BE PAID. FOR THE TIME THAT
22 This finding is based on Reid's testimony, .which was received
solely for the purpose of showing that the employees were under the im-
pression that a company meeting had been scheduled for Wednesday, and
not to show that the date of the meeting had in fact been changed See
Fed R Evid 803(3) -
ALERT MEDICAL TRANSPORT , , . 641
YOU ARE HERE EVERYONE IS REQUIRED
TO ATTEND.
Thank you,'
The Management of
Alert Transport '
12/25/82
Posted 12.30 p.m.
She further gave uncontradicted, internally consistent,
and unimpeached testimony that when she then saw that
document, the italicized portions of the notice had been
written over entries which had been erased.23
The Company's employee meetings were ordinarily
held on Wednesdays. Company witness Nancie
McCusker, an insurance company representative who
spoke ' at the December 28 meeeting, testified that the
date of the meeting had been changed "several times"
and that the original scheduled date had been earlier in
December. She was not asked whether the meeting had
ever been scheduled for Wednesday, December 29. No
other company witness testified that the scheduled date
for the meeting had ever been changed for any reason.
Company Secretary-Treasurer Greenberg testified that
he, Company President Schwartz, and Robert Corban
had wanted to hold the meeting on December 29, but
had been told by company counsel, whom -Greenberg
was not asked to name and on a date which he was not
asked to give, that the Company was not permitted to
have a meeting within 24 hours before the December 30
election.24 Greenberg went on to testify that he,
Schwartz, and Corban decided on "approximately - De-
cember 21" to hold this employee meeting on December
28, and that it had never been scheduled for December
29. Corban was not asked about this matter, and
Schwartz did not testify. The Company's only other evi-
dence about the date on which it decided to hold the
meeting on December 28 consists of a letter which Com-
pany Counsel Daniel C. Cohen wrote and sent to the
Company 'on December 21, and which shows that Cohen
then believed that the Company.had scheduled an em-
ployee meeting for the. evening of December 28. Cohen,
who represented the Company at the hearing, made no
representations as to the source of his belief, and the
record does not otherwise show the source.
Bell's testimony is the only direct testimonial evidence
about either when the notice was first posted, or what it
23 During the investigation, company counsel supplied the General
Counsel with a photocopy which reads as quoted in the text and is blurry
at the italicized points Later, company counsel marked for identification
as R Exh 1 a document which he represented to be the photocopied
document Bell testified that R Exh I for identification was not the doc-
ument which she saw posted , in that R Exh 1' for identification was not
entirely in ink and , at the italicized points, contained whiteouts rather
than erasures Counsel made no further effort to authenticate R Exh I
for identification, and made no effort to authenticate any other document
as the notice which was physically posted The copy received in evi-
dence is a photocopy of a handwritten and handlettered original Much
of it (including portions which were altered on the original , see infra) ap-
pears to be in Violet Corban's handwriting She was not asked about this
matter In response to a question by me, on the next to last day of the
hearing and after she had been excused, Robert Corban testified that he
had never before seen R Exh I for identification
24 See Peerless Plywood Co, 107 NLRB 427 (1953)
said when it was first posted. On direct examination, she
testified that when she first saw the notice, on an unspec-
ified date, it said that the company meeting would be
held on December 29; that she next looked at'the notice
on Monday, December 27, or Tuesday, December 28;
and that she, then noticed- that the date of the meeting
had been changed to December 28: On cross-examina-
tion, she initially testified that "I believe it was posted
Friday•evening or-Monday morning"; !hen, "Let's say I
didn't read it Friday evening before going home . . . it
was posted"; then, "I didn't go through" it on Friday
evening, and was not "really" interested in the time be-
cause "the meetings a'e usually held at the same time"
and are usually held on Wednesdays; then, that on
Friday evening or Monday morning the notice said De-
cember 29; then,"that-"I believe" the notice said Decem-
ber 29 -on Monday morning; then, that the notice said
December 29 when she first looked at-it, which was
either Friday evening, or ("I believe") Monday morning;
and then, that she saw the notice on Friday evening and
saw that it announced a company meeting , but "didn't
really. run across the date " Finally, she testified that the
notice was 'up on the evening' of Friday, December 24,
when she went home, and that the notice then stated that
the company meeting would be held on December 29.
.As -to when the notice was first posted and what it
then said, the previously summarized variations and un-
certainties in Bell 's testimony would likely have led me
to discount it in the face of positive testimony otherwise.
However,, no other witness testified as to when the
notice was first posted or what it said at the time. More-
over, Bell's final testimony as to these matters is 'to some
extent corroborated by the undisputed evidence that as
of December 27, the face of the notice gave a posting
date' of Saturday, December 25, and showed changes as
to both the date of the meeting and the posting date.
Further, as to a meeting scheduled at the end of many
employees' shifts on a Tuesday, after a series of meetings
on a Wednesday, it is somewhat unlikely that the Com-
pany would have deferred posting a notice until a day
when the many employees who did not work weekends
would not. see the notice until the day before the meet-
ing. Furthermore,'while at least one dispatcher is always
on duty and ambulance crews are subject to emergency
call, the Company observes Christmas Day as a paid hol-
iday. Accordingly, it' seems somewhat unlikely that the.
Company would have elected to post the notice for the
first time on Christmas Day,, a Saturday, the altered date
set forth as the posting date by the notice in its final
form. Accordingly, and after considering Bell's demean-
or, I credit her testimony that the notice was posted by
the end of her work shift on Friday, December 24, and
that it then gave December 29 as the date of the meet-
ing.
Union Organizer Reid authenticated General Counsel's
Exhibit 42 as the sign-in sheet for a union meeting on
December '28. There are four names on the list-Jardine'
(one of the aides terminated on October 29), Bell, John
642 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Williams , and Duane Clark . 25 Reid did not state whether
this was the sign -in sheet for the 1 p .m. meeting or the 7
p.m.'meeting . As all of the active employees on the sign-
in list were on the day -shift , I infer that this was the 7
p.m. meeting . The sign-in list for the other December 28
union meeting is not in evidence . Greenberg testified that
no action was taken against an employee who did not
come to the Company's December 28 meeting , but that
an attendance record was kept to determine who was to
be paid.
b. Alleged 8(a)(1) and (3) violations with respect to
Phillip Jardine before his termination
As previously noted , on October 20 the Company con-'
ducted , as part of its campaign to defeat the Union, an
employee meeting at which benefits were discussed. Im-
mediately after that meeting, Public Relations Director
Rona Schwartz observed a discussion between employ-
ees Jardine, Harvey Mitchell , and Eddie bland during
which they seemed _ to be displaying some uncertainty.
She approached them , said that she might be able to
"straighten some things out," and further said that if she
could not , she could ask her father , President Albert
Schwartz . Jardine , who had been working for the Com-
pany for about 4 months , said that he and a number of
other employees had never received either a card show-
ing that they were covered by the Company's health in-
surance plan, or a booklet describing the plan , and asked
whether the employees would be receiving this material.
She said that the booklets were on order. Jardine said
that he and his partner , • driver Harvey Mitchell, were
unable to complete their run in the allotted 6-hour time.
She said that she would check into it . Jardine said that
he wanted more hours of work . She said that she would
ask the Corbans whether . there was any way that they
could assign him more hours . Jardine asked about raises
which (he thought) the employees were supposed to re-
ceive . She said that the employees were supposed to be
getting raises , but that the Company could not give out
the raises at that time , "because of this union thing. And
if [the Company] did give [the employees] raises, it could
be construed as a bribe ."- Jardine , who was an aide,
asked whether aides would be included in the raises. She
said that whenever the employees "did get the raises, the
aides would be included.
Rona Schwartz credibly testified that after this conver-
sation with Jardine , she spoke to the Corbans , on a date
and at an hour she was not asked to give, about getting
Jardine some more hours , and they said that they would
see what they " could do . On the same day that Jardine
25 The-approximate attendance of-company employees at prior union
meetings was as follows
Date - Attendance
October 2 - 23
October 16 12
October 26 40
October 30 14
November 16 45
December 16 7
The figure given for October 26 does not include those present who
worked for other firms
had his conversation with Rona Schwartz , he spoke to
Violet Corban , to whom he had previously made the
same complaint , that he and Mitchell could not do their
run in the allotted 6 hours . 26 On the following day, Jar-
dine found on his timecard a note to the timekeeper stat-
ing that Jardine and Mitchell no longer had to have their
timecards signed in advance in order to be paid for more
than - 6 hours on that run. They had normally taken 45
minutes to an hour more than the allotted time . A, day or
two later , Jardine was transferred to another route for
which he received 7 or 8 hours ' pay. Gland was Jar-
dine 's driver/partner on this route . 27 Also, when Jardine
checked back with Rona Schwartz , she gave him an in-
surance book.
My findings in the two preceding paragraphs are based
on a composite of credible parts of the testimony of Jar-
dine and Rona Schwartz . On direct examination by com-
pany' counsel , she testified that she could not recall
whether a wage increase was discussed during her con-
versation with Jardine immediately after the company
meeting. However , on cross -examination , . she testified
that Jardine asked when "we" would be getting a raise,
and she said that she did not know but would look into it
for him . Accordingly , and for demeanor reasons , I credit
Jardine over Rona Schwartz to the extent their testimo-
ny is inconsistent.
c. Allegedly unlawful grant of turkeys
At Christmas 1982, just before the election , - the Com-
pany gave each employee a turkey which cost the Com-
pany more - than $6 . At Christmas '1980, the Company
gave each employee , as a gift , a lighter (which cost
$3.90) or a wallet (which probably cost about $4.90) and
(in some cases) a key chain , whose cost is not shown by
the record . There is no evidence that the Company gave
employees any gifts for -Christma's 1979, the Company's
first year of operation . 28 Moreover , the credible evi-
dence fails to show that the Company gave employees
any gifts for Christmas 1981.
In reliance on the testimony of Secretary -Treasurer
Lester Greenberg , the Company 's brief contends that'if
gave employees plain green sweatshirts , which cost $6
each , for Christmas 1981.29 In support of the Company's
contention that these sweatshirts were in fact gifts, the
Company points to Greenberg 's testimony that the em-
ployees were not required to return these shirts when the
employees left the Company , to his further testimony
25 Concerning the substance of his complaint to Violet Corban , for de-
meanor reasons I credit his testimony in preference to hers
- 27 The route to which Jardine was assigned was one of several routes
where the employees did not go back to "base" for a midday lunchbreak
The employees on such routes were on the clock between the time-they
left "base" and the time they returned , although during this period they
had half an hour to an hour of "downtime" during which they were not
required to perform any duties Before being transferred to that route,
Jardine had engaged in union organizing activity during the midday
break at "base," when many other employees were also on break there
The complaint does not allege that his transfer to the new route violated
the Act
28 The Company, began operations with only four employees The
record fails to show how many it had by Christmas 1979
29 Greenberg testified that the-shirts were ordered in December 1981
but not delivered until January 1982
ALERT MEDICAL TRANSPORT 643
(supported by the absence of sweatshirts from the gar-
ments listed on the forms where newly hired employees
are expected to set'forth their sizes for purposes of uni-
form issuance) that sweatshirts are not issued when uni-
forms are issued, and to his testimony that "I believe"
sweatshirts were given to all the employees in the garage
facilities (which were then on 33d Street), including-
sec-retaries and billing clerks. However, Robert 'Corban,
whom I regard as•more knowledgeable than Greenberg
because Corban actually handles the field operation, tes-
tified that the mechanics, who were required to wear
uniforms,30 were not issued sweatshirts, but instead were
issued other items received by the Company at the same
time as the sweatshirts-namely, parkas, coveralls, lined
coach jackets, and a rainsuit-and not claimed to be
Christmas gifts; that employees who leave the Company
are obligated to return the sweatshirts; and that they are
stored and reissued. Furthermore, - he testified that the
sweatshirts, as well as the extra clothing simultaneously
issued to the.mechanics, were issued as an "additional
fortification" against unusually severe, winter weather in
January and February 1982. Moreover, . Violet Corban
testified at the November 1982 representation case hear-
ing that office personnel at the garage facilities had at
one time been required- to wear uniforms, and could still
do-so if they desired. Also, Duane Clark (who worked
for the Company between November 1979 and July
1983) testified that he received a! sweatshirt from the
Company "during the winter months because the jackets
were kind of thin and ; the drivers were complaining
about being cold and so they bought sweatshirts." More-
over, no sweatshirts were given to the employees at the
Company's ;13th Street location, all of whom performed
indoor clerical work and who had little personal contact
with personnel in the garage facilities. Furthermore,
Greenberg testified that the sweatshirts were given out
after -rather than at Christmas' 1981 partly because the
Company had difficulty in obtaining sweatshirts whose
color was "compatible with the employees' [green and
tan] uniforms and • ... to be greenish color"; if the
sweatshirts had indeed been intended as personal Christ-
mas gifts, timeliness would appear to be a somewhat
more important consideration than compatibility with
uniforms in whose 'color selection the employees had no
voice and which some of them did not have to wear.
The Company's failure to issue sweatshirts when it issues
uniforms may take into account the fact that some em-
ployees choose not to wear them even in winter,31 and
the possibility that the employee may leave the Compa-
ny's employ before sweatshirt weather begins.
d. The allegedly unlawful termination of the aides
Before October 29, 1982, the Company had a job clas-
sification called aides. On October 29, the Company ter-
minated 17 alleged discriminatees with this- classifica-
tion.32 These 17 terminations were effected by, a slip
which the Company attached to each dischargee's'time-
card at an undisclosed hour between about 11. a.m. and
the end of the day shift (about 4 p.m.) on October 29, -
and which stated:
AS A RESULT OF RECENT. CHANGES IN INTERNAL
REGULATION OF THE DEPARTMENT OF PUBLIC WEL-
FARE, IT IS NO LONGER NECESSARY FOR-THE COMPA-
NY TO HAVE ATTENDANTS ON MOST OF OUR VEHI-
CLES. THIS, COUPLED WITH COST CONSIDERATION
AND CONCERNS, REQUIRES US TO REGRETFULLY
TERMINATE YOUR EMPLOYMENT, EFFECTIVE TODAY.
A like slip was issued on November 8 to alleged discri-
minatee Robert Cummings; the record suggests that this
delay may 'have been due, to difficulties in finding drivers
who were familiar with the geographical area where
Cummings performed his duties. Of these aides, all but
one (Ross) had signed union cards between September 3
and October '11. All of them but six (Cummings, Dumas,
Douglas Johnson, Knight, Mason, and Ross) attended at
least one 'of the three ' union . meetings held before their
termination. Alleged discriminatee Frazier attended-all
three of these meetings ; and alleged discriminatees Ball,
Freeman, Garner,'Jardine, Jenkins, and Twyman each at-
tended two. Alleged discriminatees Jardine, Frazier, and
Cummings were on the organizing committee who,wore
union buttons saying "1199C" or (perhaps) "committee,"
and 'met at least once a -week. A lot of the members of
this committee engaged in union activity in-Robert Cor-
ban's presence. All of them talked about the Union a lot
around, the shop. Jardine, was 'one of the two employees
who began the organizing effort in late August 1982. He
talked to almost .100 employees and, when they seemed
interested, got in touch with the Union. Members of the
organizing committee were among the employees who
passed out union cards in front of the Company's facility;
across the street; and in the garage, restroom, and lunch
areas . Jardine also engaged in discussions with Union
Representative Reid; in front of the Company's facility.
These activities by Jardine were observed by Robert
Corban and Wearing. On. one occasion in -early October,
before the beginning of Jardine's scheduled shift, he en-
gaged in. a conversation in front of the Company's facili-
ty with a union representative whom Jardine knew only
as "Neil." As Jardine, was entering the facility to clock
in, Robert Corban, who had observed this conversation,
asked him whom he had been talking to. Jardine replied
that he knew the individual as Neil. Robert Oorban gave
Neil's full name, said that he worked for the Union, and
further said that Corban did not want Jardine to talk to
any, union representatives or organizers "on [Corban's]
time." Jardine was not late clocking in that morning. On.
another occasion in September or October, after seeing
Jardine talk to Reid in front of the facility and outside
the garage door, Corban went inside and closed the
3? See Violet Corban's testimony at the November 1982 representation
case hearing
31 Clark testified that even during the unusually cold months of Janu-
ary and February 1982, some employees chose not to wear sweatshirts.
32 The aides terminated on October 29 were-
Mack Ball Douglas Johnson
Kevin Chanty James Knight
Patrick Dumas
Irene Frazier
Thomas Freeman
Carla Garner
Stephen Griffin
Phillip Jardine
Deborah Jenkins
Theresa Mason
Stephanie Matthews
Joseph Middleton
Kimberly Ross,
Betty Twyman
Gary Williams
644 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
door Robert. Corban testified that at the time the peti-
tion was filed, Director of Public Relations Rona
Schwartz (President Schwartz' daughter) told Corban
that Jardine was part of a committee that wanted to ne-
gotiate with the Company. In the first or second week of
October, Company .Secretary-Treasurer Greenberg asked
dispatcher Larry Clark to point out Jardine. 'When Clark
did so, Greenberg asked whether a book in Jardine's
back pocket had anything to do with the Union. Clark
replied that he did not know.
The cost of most of the Company's services is reim-
bursed by the Pennsylvania Department of Public Wel-
fare (the DPW). The Company contends that its October
29-1982 termination notices to the aides were issued be-
cause of DPW changes in its regulations so as to alter its
alleged prior requirement for helpers on vehicles which
were part of the Company's bus division.
At no time were aides ever assigned to work' on' any
vehicles other than those in the bus-division. Aides per-
formed no driving function. They assisted clients on and
off the vehicle, and maintained .safety and order on the
vehicle during periods while the vehicle was being,
driven. The clients on the-bus division vehicles are men-
tally retarded, are mentally disturbed, or have cerebral
palsy. Some are confined to wheelchairs. Some of the
clients become agitated, disoriented, or disruptive on the
vehicle. On occasion, and sometimes while the vehicle is
in motion, they engage in physical assaults on each other
or on the driver. Every bus division vehicle has a seating
capacity of at least 15 people, including the • driver.
Robert Corban testified that the Company used aides be-
cause it is difficult for the driver to maintain order and
safety while he is driving. Greenberg testified that the
Company believed that the presence of an aide on the
vehicle was a safety feature which improved the Compa-
ny's service. -
The DPW regulations here'at issue specify the staffing
standards which vehicles must meet in order to be paid
for by DPW. The Company contends that before Sep-
tember 14, 1982, these DPW staffing standards required
the employment of aides on the Company' s bus , division
vehicles. The Company relies on the following DPW
regulations (emphasis added); (original; capitalization
supplied, for reasons which will appear):
II. Payment for transportation by a public transporta-
tion carrier [Pennsylvania statutes and DPW regula-
tions] provide for payment of the minimum cost of
public transportation at the established rate when
the client has no other means of transportation to
and. from' a source of necessary medical care and
public transportation is available.
Para-transit companies which are regulated by the
appropriate regulating authority (i.e., PUC or tran-
sit authority) meet the public transportation defini-
tion .
.a3
ss The Company is certified by the PUC and operates under a tariff
schedule approved by it.
IV: Necessary Medical Care: -"Necessary Medical
Care" means medically acceptable diagnostic or
treatment services rendered by a licensed and/or
recognized medical practitioner or facility , such as
physicians , dentists , pharmacists , hospitals ,- clinics,
nursing homes , and the like.
Certain treatments and/or procedures which are not
recognized by the medical community as acceptable
standard medical practices , such as acupuncture,
Hyperthermia and experimental treatments , are not
considered necessary medical care . As such, an MA
payment may not be made to either the provider of
care for such services or for transportation to and
from such care.
Rehabilitative services are considered medical care
when they are prescribed by' the person 's attending
physician/facility as a specific component of the
medical treatment plan for the patient, such as
Physio-Therapy, Speech Therapy, Hearing Ther-
apy, and the like. _
However, certain rehabilitative services, are not
considered as medical care,. such as, Recreational
and Socialization Therapy, Training, and solely
work related services. -
County Offices must verify that the necessity for re-
habilitation services is prescribed by the person's
physician as a definite component of the 'medical
treatment plan.
A. General Requirements-The following criteria
are to be applied in screening all requests for special
transportation allowances for medical services:-
1. The client has provided written verification from
the treatment physician or medical facility that an
appointment for service has' been scheduled or
that the service has been provided. The only serv-
ices to which a special allowance for medical
transportation allowance may be considered are
acceptable diagnostic or treatment procedures
provided by a licensed or certified provider. Such
providers include physicians, dentists, pharmacies,-
hospitals, partial hospitalization, clinics -and nurs-
ing homes. Day care and sheltered workshops are
not medical providers.
B. Specific Requirements-The following criteria
based on client disabilities or limitations are to be
applied in determining the appropriate mode of
transportation - providing that all of the general re-
quirements above have been met.
4. Paratransit-Defined as a vehicle which is specif-
ically equipped to carry multiple passengers with
severe physical handicaps and/or severe behavioral
problems , has an attendant in addition to the driver
and is regulated by a transit authority (excludes
medical emergency ambulances). -
ALERT-'MEDICAL TRANSPORT
Reimbursement may be made in accordance with-
the current rate approved by the regulating author-
ity.-
Paratransit may be considered if:
a) the client is severely physically handicapped to
the extent that the criteria for other transit modes
cannot be met, as specifically documented in
writing by the treating physician; or
b) the client exhibits behavior problems so severe
that constant supervision by. the attendant is re-
quired for the trip as specifically -documented in
writing by the treating- psychiatrist or licensed
psychologist; or
c) paratransit is more economical than any other
appropriate transit mode. •
The Company contends that its abolition of the posi-
tion of aide on, October 29, 1982 . was motivated by
changes made in the - definition of the term "Paratransit,"
which , for the reader 's convenience , has been repro-
duced in capital letters . As 'more specifically described
below , the changes basically consisted of the elimination
of a requirement for an attendant . The General Counsel
contends that this amendment is irrelevant to the Compa-
ny's bus division because,that division allegedly did not
provide transportation for "'Necessary Medical Care"
within the meaning of the- relevant regulations. ' More
specifically , the General Counsel points out that the bus
division transports clients to mental health and mental re-
tardation programs , which (the • General Counsel con-
tends) do not constitute "necessary medical care" within
the meaning of the foregoing regulations . The General
Counsel further points out that what the Company refers
to as its paratransit division (which - nomenclature bears
no relationship to the term "paratransit" as used in the
foregoing regulations) transports clients to medical facili-
ties for medical care 'and usually carries an' employee
(with a driver 's license) in addition to the driver.
So far as the record shows, the initial public announce-
ment of the amendment in question was made by a Sep-
tember 14, 1982 telegram from the -DPW. A copy of this
telegram was received by company counsel on'Septem-
ber 21 , 1982. This telegram stated-in part:
Effective upon receipt of this [telegram], paratransit
is defined as a vehicle [which] 1(A) is specifically
equipped to carry multiple passengers ' with severe
physical/mental handicaps and/or severe behavioral
problems; _
or -
(B) has an attendant other than the driver, who is
trained to care for such passengers during transit
and
(2) Prior to February 20, 1981, was regulated by
the PUC or-is currently regulated by a local-or
regional transit authority;
645
or
(3).If the carrier does not meet.the conditions of
#2, the charge is equal to, or less than, the rate
charged by.regulated carriers in the area.
This definition removes the' requirement that both a
driver and an attendant must 'be in' the vehicle
[County offices] are to begin using this definition at
once.
On October 28, 1982, the- DPW issued a superseding
telegram which reads in part as follows:
[W]e are interpreting "'public transportation" as in-
cluding transportation in a vehicle that regularly
carries multiple persons; and
1(A)_ is specially equipped to carry persons with
severe physical/inental 'handicaps or severe behav-
•ioral problems;
-or
(B) has an attendant. other than, the driver, who is
trained to care for such passengers during transit;
and
.2(A) is' provided under a currently valid certificate
of public convenience or contract carrier permit
from the PUC .... [see supra fn. 33] •
or
(B) is service that is not subject to the jurisdiction
of the PUC. The rate to be allowed for this service
is the -actual rate not to exceed the lowest rate
charged by a- PUC certified carrier in the county.
Robert, Corban testified before me that the decision to
eliminate the position of aide , to lay off the aides, and to
create the position of "driver II" (see infra) was made by
the Company's board of directors. Violet Corban-testi-
fied at the November 1982 representation case hearing
that she was told by her husband, Albert Schwartz, and
Greenberg that she was directed by the board of direc-
tors to dismiss'the'aides. It is undisputed that the board
of 'directors included Greenberg and Albert Schwartz
(the, two owners), Albert's wife, Evelyn Schwartz, and
an' unspecified- attorney. The Corbans both testified
before me in July'-1983 that Violet Corban was on the
board of directors; her above-mentioned November 1982
testimony suggests otherwise. She testified before me
that - she had no involvement in the decision to terminate
the aides, and her above-mentioned November 1982 testi-
mony so suggests. Robert Corban's testimony before me
indicates that she did participate in the decision (see Tr.
382, LL. 3-9). Robert Corban testified before me that he
too,-was on the board of directors; Violet Corban so tes-
tified before me (Tr.. 816,.LL. 22-23) and testified at the
November 1982, hearing that he was a member of the
board of directors ',so to speak. Since titles are shaky in
the Company, that's the way he sees it." Greenberg testi-
646 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
feed before me that neither of the Corban was on the
board of directors. Company counsel stated 'on the
record, and his statement to this effect "was accepted by
the General Counsel, that a copy of the October 28, 1982
telegram was 'in- the possession - of company counsel on
the date that the Company decided to eliminate the posi-
tion of aide. Greenberg testified that he first saw, the
September 14, 1982 telegram, the October •28, 1982 tele-
gram , and the regulations in their pre-September form at
a meeting with counsel -about the elimination of the aide
position. Greenberg further testified that the aide classifi-
cation was eliminated "when this new regulation that
was shown to us by our attorneys, whereby an aide was
not necessary." However, Bus Manager Wearing testified
that he was informed "about.two or three days" before
the aides' October 29 layoff that there were going to be
no more aides. Further, Robert. Corban testified that the
decision to eliminate the position of aides was made "ap-
proximately within a two week period of time" before
the October 29 terminations , and was made "immediately
upon" or "inside of a couple of weeks" after "notifica-
tion from Harrisburg that this procedure was no longer
necessary." He further testified that union activity played
no role - in' the decision to terminate some aides, keep
others, and eliminate the classification . Greenberg testi-
fied at one point that the Company had been advised in
October that aides were no longer legally required. At
another point, when asked how much time elapsed be-
tween counsel 's advice that the legal requirement had
been relaxed and the Company 's decision to eliminate the
aides , Greenberg testified , in part, that the discussions
were going on during the months of September and Oc-
tober. Public Relations -Director Rona Schwartz, the
daughter of board of directors members Albert and Es-
telle Schwartz, told aide Jardine on October 20 that
aides would be included in any wage increase -given to
other employees. On October 4 and 11, 1982, the Cotn-
pany hired as aides two individuals who did not have
drivers' licenses. - -
The personnel file of every aide disclosed whether he
had had a driver's license ' at the time he applied for-a
job. Robert- Corban and Greenberg testified that the
same time as (or shortly after) the Company decided to
eliminate the position of aide, the Company decided to
create- the driver II position. Violet Corban testified- at
the November 5, 1982 representation case hearing that
drivers II began work on Monday, November 1, 1982.
Employees with this job classification were required to
have drivers' licenses. Greenberg testified that driver II
was considered a trainee driver, that he rode on a vehi-
cle being driven by a driver I, that the,driver II was ex-
pected- to learn they route, and that he could also ^ drive
the.vehicle if something happened to the driver I or he
was not available. -
All of the six to, eight aides who possessed drivers' li-
censes were transferred to driver II jobs. There is no evi-
dence that any of them had signed a union card or was
otherwise active in the Union. Between the' date of the
aides' layoff and the end of 1982,- the Company hired 2
drivers II, -three •"paras •II,"34 and. 16 bus and paratransit
drivers. Between September 1982. and the end of that
year, the Company's employee complement increased
from 152 to 157. Robert Corban testified that experience
with handicapped, mentally disturbed, or elderly people
is .a "preferred quality" in applicants for driver II jobs.
He further testified that the drivers II are expected to
learn different routes while serving as such. Further,-he
testified that "more-often than not," aides were ' familiar
with the route to which they were assigned, and, that
from experience the aides had become familiar with the
clients' behavior and how to cope with clients" physical
handicaps . Also, he testified that the Company's only re-
quirement for driver II job is a driver's license, because
"the need is greater than the supply." Nobody hired as a
driver II between the creation of the position and July
13, 1983, claimed on his employment application that he
had any experience with handicapped, mentally dis-
turbed, or elderly_people.
The termination slips given to the terminated aides did
not state.that the.aide would be retained or rehired if he
obtained a driver's license. Greenberg testified that when
the aide classification was eliminated (a decision -which
company counsel in effect stipulated was made no earlier
than October 28), . "we .... asked the aides whether or
not-certain aides whether or not we could, transfer
them over, to other positions"-namely, the position of
"driver II." The record fails to show the basis for his
knowledge of these alleged events. Robert Corban testi-
fied that on a prelayoff date which he was not asked to
give, he issued an order to either Wearing or Violet
Corban to approach every .aide "about the availability of
a drivers' license ." There is no evidence that Violet
Corban (who testified for the Company) ever had a con-
versation with any aide on such a subject. Wearing testi-
fied that 2 or 3 days before the layoffs (in other words,
before the date which -Greenberg in effect attached to
the Company's decision to discontinue the aide classifica-
tion and institute the driver II -classification), Wearing
asked 8 or 10 aides whether they had drivers' licenses.
According to Wearing, he told these aides that he was
asking this question "because of this layoff thing that
they have coming up, and ... it won't be any more
aides , but there will be second drivers, because we had
had a lot of problems , when the driver got-sic'k, or for
some reason , he could not do the driving on that particu-
lar run, the aide could not take the helm." Wearing testi-
fied that in asking the aides -whether.they had drivers' li-
censes , he ','concentrated' on those people . '. . -that I
knew I could communicate. [with] . . . Because I -did
have some people, who didn't really want to talk to me."
He further testified that he told the aides who did have
licenses that "chances are , because you have a license
you will be considered" for driver II. It is undisputed
that no company manager ever asked alleged discrimina-
tee Mack Ball, an aide who knows how to drive but has
never had a driver's license, to get a license. Wearing
testified that he could recall the names of four aides
94 Although Robert Corban testified that drivers II were used in the
bus division only, Violet Corban testified that drivers II were used in
both the bus division and the paratransit division
ALERT MEDICAL TRANSPORT
whom he allegedly asked about drivers' licenses during
the 3-day period before the October 29, 1982 layoff. Of
these four, only Jardine was included in that layoff. The
name of another of-these four, Denise Dais (also referred
to in the record as "Days") does not appear on' the Com-
pany's payroll for .the weeks ending' October 1, October
29, November 26, or December 31, 1982. So far as the
record shows, she did not start working for the Compa-
ny until the week ending January 28, .1983.35 Robert
Corban testified that he did not know one way or the
other whether any of the terminated aides had obtained a
driver's license since he applied for work with the Com-
pany, and did not know whether any of them actually
knew, how to drive (although see infra fn. 36). Accord-,
ingly, I reject his testimony that he ordered all aides, to
be approached about drivers' licenses, reject Wearing's
testimony about the approaches he allegedly made, and
find Greenberg's testimony insufficient to warrant a con-
clusion that the, Company made appreciable efforts to
find out whether aides without drivers' licenses when
hired had later obtained them or were able to obtain
them. Further,- I accept alleged discriminatee Jardine's.
denial that he was asked during the preceding month
about his- license. Moreover, I accept Jardine's testimony
that he would have tried to get a license if he had been
told he needed one in order to keep his job.
Jardine credibly testified, with partial corroboration by
Wearing-and Robert Corban36 and without contradiction
by Violet Corban, that Jardine had told Wearing, the,
Corbans, and a dispatcher named "Charles," that Jardine
knew,how to drive .37 Concerning previous conversa-
tions between Wearing,and Jardine about his driver's li-
cense, I find as follows: Jardine at one time possessed a
California driver's license, with a 1976 expiration date,
which was never. revoked or suspended. Inferentially,
after this license became invalid,- he never obtained an-
other California license. He moved to Pennsylvania' in
1978 or 1979, but never obtained a Pennsylvania driver's
license. He started working for the Company as an aide
in May 1982 About 2 weeks to a month later, when
nobody else appeared to be available, Weaving sent out
Jardine in a vehicle to pick up a driver who had had a
breakdown. Later, Violet Corban cautioned Wearing,
who had . not known that Jardine had no license, not to
assign him to driving functions unless he obtained a li-
cense. When Wearing approached Jardine about his li-
cense, he said he had a problem with his license, was .
getting it taken care of, and would get back to Wearing
as soon as Jardine had his license. Wearing asked Jardine
to get a license, and said that he could drive permanently
if he got one.38 On several subsequent occasions, Wear-
ing again asked Jardine to drive and to obtain a driver's
license. Jardine testified that "I think" he could have ob-
tained a driver's license if he had tried to get one.39
35 The other two (Jeffrey Manning and Johnnie Gray) were on all the
payrolls in the record between the weeks ending October 1, 1982, and
January 28, 1983
38 Thus, Robert Corban testified that in the summer of 1982, "we"
urged Jardine to get a driver's license . However, Corban later testified'
that he did not know whether any of the terminated aides was able to
drive As noted infra, Violet Corban reproved Wearing for letting Jar-
dine drive without a license
647
e The allegedly unlawful interrogailon and discharge
of Emanuel'Criniti
Emanuel Criniti started to work for the Company
about early September 1982. His initial assignment was
to drive a Co-Mhar bus to transport exceedingly retard-
ed clients.40 These clients occasionally jump up out of
their seats and strike at other clients or at the driver
while the bus is in motion. Violet Corban credibly testi-
fied to the opinion that these clients require. extra care.
About mid-October 1982, the Co-Mhar program director
reported to Violet Corban that while in the middle of
the street outside a juvenile client's home, Criniti had
yelled at the client's mother about the child's behavior.4 i
When Violet Corban spoke to Criniti about the com-
plaint,; he said that he did not know how to handle this
particular child. Violet Corban gave some general sug-
gestions,,and said that she- would either transfer him off
the Co-Mhar run or try to find out if there was some
way that he could learn-how to handle this child Short-
ly thereafter, Criniti was transferred to senior transporta-
tion, an assignment which he had been requesting since
first applying for work with the Company. Violet Cor-
ban's testimony suggests that he was transferred because
his Co-Mhar services had been only marginally satisfac-
tory. However her above-mentioned remarks aside,
there is no evidence that he was given this reason for his
new assignment.
Violet Corban testified that about a week after Criniti
was transferred to senior transportation, dispatcher John
Pistilli complained to her that Criniti was "wearing [Pis-
tilli's]. nerves to a frazzle," and that she replied that she
would, look into, "the situation" and see "if there wasn't
something that could be done with Mr. Criniti." She did
not specify the, nature of Pistilli's alleged complaint on
this occasion. She went on to testify-that "shortly there-
after" she asked Pistilli "in particular" what his problems
were with Criniti, and Pistilli replied that Criniti took
longer than anyone else to understand Pistilli's instruc-
tions over the radio. There is no evidence that anyone
ever mentioned to Criniti either of these alleged com-
plaints. Moreover, company witness Pistilli, who at the
time of the hearing was still in the Company's employ,
did not corroborate Violet Corban's testimony that he
made "these complaints to her. Accordingly, and for de-
37 Dispatchers were 'admittedly rank-and=file employees Dispatcher
Charles Whitaker, a witness'for the General Counsel, Worked for the
Company during the first month of Jardine's employment Whitaker was
not asked about this matter -
38 Wearing testified that Jardine "was pretty clean cut, and he usually
did the job that he was supposed to do "
39 My findings in this paragraph - are based on a composite of credible
parts of Jardine's and Wearing's testimony I reject as improbable Wear-
ing's testimony that, although Jardine knew Wearing's awareness that
Jardine had no driver's license, Jardine nevertheless approached him "a
couple of times" about becoming a driver Particularly because a driver's
job pays more than an aide's job, I do•not accept Jardine's testimony that
he told Wearing that Jardine would comply with Wearing's request to
get a driver's license if Jardine could get a day off with pay to apply for
one
40 "Co-Mhar"- is an acronym for 'Community-Organization for Mental
Health and Mental Retardation "
41 Violet Corban testified that "I believe I scratched down on
a little paper Co-Mhar's complaint about Criniti 's conduct , but that
she could not find it
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meanor reasons, I do not, credit such testimony. In any
event, the Company's brief states (at 11-12) that Cnniti
was not suspended for this alleged "fault."
Violet Corban testified that a few days after the al-
leged events referred 'in the preceding paragraph, Pistilli
and other people whom she-was not asked to name re-
ported to her that Criniti was cursing and talking loudly
and at length on the radio- on which the drivers and
"base" communicate. She went on to testify that she
heard him talking loudly, and that she talked to Criniti
about "that situation." Neither Pistilli nor anyone else
corroborated her testimony about the complaints made
to her or about Criniti's alleged curses and loud talk on
the radio. However, Criniti was not asked about the
matter or about his conversation with Violet Corban
which she described. Moreover, Pi stills did testify that
Criniti was overly loquacious on the radio. Accordingly,
I credit her testimony previously referred to in this para-
graph. I do not accept her further testimony that' he was
given a written warning about this-incident, in view of
the -Company's failure to produce the document. The
Company's brief states (at 11-12) t]iat he was not sus-
pended for this incident -
Criniti signed a union card on October 12, 1982. He
attended union meetings at the union hall on October 26
and November 16. As previously noted, union represent-
atives distributed union buttons at the November 16
meeting, and Criniti wore one to I ork-the following
morning. As previously noted, Criniti credibly testified
that that morning, before clock- in tine and while he was'
eating a breakfast snack outside ompany property,
Robert Corban walked up to Criniti, (grabbed his button,
yanked it off,' and said, "[W]e don't' go for that b-s-
here . . . . If I catch you wearing it' again, you're- out."
In view'of Corban's failure to deny' this testimony, and
his wife's testimony'(see infra) that her initial knowledge
of Criniti's union activity was derived from a conversa-
tion between him and her husband, I do not credit
Robert Corban's testimony that he did not know Criniti
had anything to do'with unions. _
When Criniti was first hired abo t early September
1982, Wearing told him that the Company provided
"door to door" service for Co-Mhar clients, that Criniti
was supposed to load them or take them off, and that he
was supposed to wait no more than 5 minutes for a
client. A few days later, and while Criniti was still on
the Co-Mhar run, he told -Wearing that Criniti had had
to go .'up a -couple of flights of steps to help a client
down the steps, that she had not been feeling well, and
that he almost had to carry her. Wearing told Criniti that
clients were supposed to be waiting irk front of the house
or on the steps 'when Criniti arrived with his vehicle to
pick `them up; and that Criniti was not. supposed to go up
any stairs or go into. anyone's house to get a client. 12
Violet Corban testified that senior citizen service, - to
which Criniti was transferred in October 1982, is curb to
curb service. On Novembei= 17, 1082, the day that
Robert Corban yanked Criniti's union button off his
clothing, 'Criniti took is -particular client from one place
to another place on the first half of a trip. The driver
who was sent- for, the client on the return trip reported to
management that the client asked tp be carried, the
driver said that he was not supposed to carry her, and
she said that Criniti had carved her to the van and the
second driver should carry her back. ;When questioned
by company representatives -about the -first half of the
trip, Criniti stated , that he had had -a problem with the
client on the way in, but had not told "base" about it.
That - day, Violet Corban issued Criniti a written repri-
mand which stated, "Call -base for instructions if unsure
of a'situation. [Did] not use wise judgment about lifting a
senior,-wheelchair client. Lifting is'not our responsibility
on Senior Transportation."43 The General Counsel dis-
avowed on the record any contention that this warning
violated the Act.
At the same time that Violet Corban issued Criniti the
reprimand, she gave. him what he testimonially described
as a_"very lengthy" booklet, which took him an hour to
read, about the "do's" and the "don't's."44 -After 'reading
it that night, he asked her some questions about it the
next .day. She answered some of his questions, but not
all.45 She told him that he would be terminated if there
were "any more problems- where you don't follow the
rules and regulations." Neither she nor any other man-
agement witness testified about which rule in-this booklet
had been breached by Criniti on November 17 (the date -
he-testimonially attached to his receipt of the rule book-
let) or on November 24 (the date testified to by her). My
finding about the event which occasioned these conver-
sations about the rules is based on Criniti's testimony that
she gave him, this copy of the rules when he received his
November 17 warning. Violet Corban testified that she
gave a-copy to him when, he received a November 24
disciplinary suspension discussed infra, but she was ad-
mittedly -confused about- which incidents resulted in a
suspension and which resulted in reprimand. • ' }
Inferentially about November 19, Criniti was sent to'a
private home to transport, from a' client's home to her
doctor's office, a very heavy client who was in a wheel-
chair. 'The client's son asked Cnniti to help him lift her
down 10 or 12 steps. Criniti said that this was not his
job; that, his job was to give curb-to-curb service; and
that bringing the client to the van where Criniti could'
put heir on the wheelchair lift was the son's job. The son
"screamed" at Criniti, and said that the son was going to
call Company President Schwartz and have Criniti fired.
Criniti then called dispatcher Pistilli. Pistilli told Criniti,
"Under no circumstances are you allowed to lift her
down the 'steps. Your only job . . . is to go from curb to
curb. When you get to the curb, you are to put her on
42 My findings in this paragraph up to this point are based on Wear-
ing's testimony For demeanor reasons, I do not accept Cnniti's denial
that Wearing gave him such instructions
43 My findings as to - the incident which led up to this reprimand are,
based on Violet Corban 's testimony I believe that Cnniti confused the
incident which led up to this reprimand with another incident described
infra
44 This , is a five-page document which is rather closely written and
rather complex It contains no instructions about carrying clients in the
senior transport division The Company 's hiring procedure calls for the
issuance of this document to an employee on his hire I find it unneces-
sary to determine whether Cnniti was accurate in testifying that he did
not.receive a copy at that time -
45 This finding is based on his testimony , which , for demeanor reasons
I find more credible than her testimony that she answered all- of them
.ALERT MEDICAL TRANSPORT
the wheelchair lift and lift her in the van, and lock, her- in
and bring her to her destination and leave her on the
curb and that's it . . . the rest of the responsibility is .up
to her or whoever is with her."46 The client's son ob-
tained the help of someone else in taking her down the
stairs, and Criniti wheeled her into the van
Later that day, the client's son telephoned Robert
Corban about the incident There is no credible evidence
about what was said (see infra fn. 47). Inferentially,
Robert Corbar. related this complaint to Violet Corban,
who called Criniti into the office Criniti told her that
"the guy" had asked Criniti to lift the client down the
steps; Cnniti had refused, "the guy threw a seven [and]
started jumping up and down like he was nuts"; Criniti
had asked "base" for permission to help; and "base" said
no. Violet Corban said, "Well, that's not the way we
heard it." The Company does not contend that Criniti
received a written reprimand in connection with this in-
cident. I do not accept Robert Corban's rather vague tes-
timony that Criniti received an oral reprimand.47
About 20 of the Company's senior transportation vans
are equipped with wheelchair locks which are supposed
to be used on wheelchairs which clients-occupy while
being transported in the vans. Of these 20 vans, only 2
were equipped with wheelchair locks which would fit a
relatively new kind of electrified wheelchair with very
wide tires. Wheelchair locks which fit this wide-tired
kind of wheelchair are relatively expensive. However, it
is not safe to put that type of tire in a wheelchair lock
which' is not made for. that purpose.
On various occasions beginning about November 10,
Criniti complained to the Corbans, Renzulli, and Pistilli
that the wheelchair locks would not properly close and
lock over certain types of wheelchair wheels. Robert
Corban told Criniti, on two occasions about the first half
of November, that the locks simply would not fit special-
ty wheelchairs, but that the necessary alterations would
be made.48 Renzulli, Violet Corban, and Pistilli also told
Criniti that the necessary adjustments would be made.49
46 The quotation is from Criniti 's uncontradicted and credited testimo'
ny Company witness Pistilli testified that on a date and in a context he
could not recall, he told Criniti that the Company's service was curb to
curb
47 Robert Corban testified that the "older people" who are served by
the senior transport division will call in complaints about drivers who
refuse to comply with requests for act:on inconsistent with company
policy He testified that the client 's son complained that Cnniti had ac-
cepted $20 to take the client down and then up stairs and had reneged on
"the back half of the deal " Initially, Robert Corban testified that when
he confronted Cnniti with these allegations , he said that he did not know
he was not supposed 6 take money and, when Corban told him about
the "safety factor," said that Criniti saw no harm in taking her up and
down the steps Later, Robert Corban testified that Cnniti said that he
had decided 'to bring the client down the steps rather than have the son
"holler" at him, and Corban had "tried to explain to him the precautions
of a single man bringing a wheelchair down any amount of steps " Be-
cause Criniti did not receive a written reprimand in connection with this
incident but did receive a written reprimand in connection with the No-
vember 17 incident (comparable to Cnniti's alleged report to Robert
Corban of the incident described in the appended text, and far less egre-
gious than the son's alleged report), and for demeanor reasons, I do not
credit Robert Corban's testimony about these alleged reports As noted
supra fn 43, Cnmti testimonially confused this incident with the Novem-
ber 17 incident
.
48 This finding is based on a composite of credible parts of Robert
Corban's and Cnniti's testimony .
649
The record fails to show whether Renzulli realized that
more than a routine adjustment would be called for; I
infer from Violet Corban's and Pistilli's subsequent re-
marks that they did not realize this: Robert Corban testi-
fied that before dispatching a driver, the Company did
not know whether any -client would have a specialty
wheelchair, and that if 'the driver of a vehicle not
equipped with locks for that type of chair found out
upon his arrival that a client had such a chair, the driver
was not supposed to pick up the client,'. but instead was
supposed to report the problem to the dispatcher, who
was 'supposed to dispatch one of the, two properly
equipped vehicles. Corban did- not testify that he issued
such instructions to Cnniti, the dispatcher, or anyone
else; nor did company witness Renzulli (Criniti's immedi-
ate supervisor) or Pistilli, a dispatcher, so testify.
Messages sent to "base" over the radio can be over-
heard by anyone (including clients) in any other radio-
equipped company vehicle On November 23, 1982,
Criniti advised dispatcher Pistilli over the radio that a
wheelchair lock was loose. Pistilli, told him to secure the
wheelchair as best he could with belts or straps, said that
Pistilli would report the problem, and told Criniti -to
bring in the vehicle for repair. On the following day,
November 24, Criniti again had the same problem. He
told Pistilli about it over the radio, asked why the lock
had not.been repaired and what the matter was with the
mechanics, and asked what he was supposed to do. Pis-
tilli gave him the same instructions which Pistilli had
given him on the preceding day.S° About 5 minutes
later, Violet Corban got on the radio, and told him to
telephone "base." When he.did so, he told her that he
had been talking to her and her husband about the fact
that the wheelchair locks were not set up for "today's
wheelchair"; that Robert Corban had promised Criniti
that the locks would be, fixed; that Criniti had asked
Renzulli to have the locks fixed; that they had not been
fixed; that this had extended over a 2-week period; that it
was not Criniti's fault if they had not been fixed, and that
whether the locks had been fixed had to be determined
by putting in a wheelchair and could not be determined
by mere inspection. She said, "[T]o our knowledge they
were fixed." She went on to say that he was being sus-
pended for 3 days because he had, used. the radio to
report the wheelchair-lock problem, and because he
"didn't follow the rules." He asked what rule had been
breached, but was obscenely refused an answer to the
question. The Company's brief does not specify any wnt-
ten company rule which Criniti had allegedly breached.
The suspension notice issued to Criniti on November 24
bears Violet Corban's signature , and states that he was
being 'suspended for "improper use of radio . . . did not
notify a supervisor .before using the vehicle 'that the
wheelchair locks were still not fixed properly. Call or
come in to base to discuss this on Fri. 11/26/82." The
49 This finding is based on Criniti 's and Pistilli's uncontradicted testi-
mony -
so This second conversation took -3 or 4 minutes , an unusually long
period However, the Company's brief states (at 11-12) that his suspen-
sion that day was not due to an excessively long radio conversation
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel disavowed on,the record any conten-
tion that this suspension violated the Act.
Violet Corban testified that she had learned from over-
hearing a conversation between her husband and another
employee that Criniti had attended a union-meeting and
had caused a commotion there 51 About November 26,
1982, she called Criniti into the office. Also present was
Robert Corban. She asked Criniti whether he knew any-
thing about a union. He untruthfully replied no. She
asked him whether he knew who had been forming it or
trying to get one in. He said no. She asked whether he
knew their names. He said" no. She said, "[O]h, come on,
you can level with me You can, tell me the truth." `He
said, "I told you- the truth. I didn't know anybody that
was there." Criniti testified that this was true, and that
he knew the employees by face but not by name. Criniti
credibly testified without contradiction that she told him
that he was doing a pretty good job. ,
About 2 p in. on November 30, a woman who did not
need a wheelchair and was being driven to her doctor's
office in a van driven by Criniti fell onto the floor of the
van when he had to make a sudden stop. He asked her if
she wanted him to take her to a hospital, to call an am-
bulance, or to call "base" to get assistance. She said no,
that she had just got a little scratch on her - forehead, and
that she just wanted, to reach her doctor's appointment.
Criniti then drove her to her doctor's office.
The Company's written rules state, among other
things, "Incidents involving, injury to patient shall be re
ported to the dispatcher immediately. An incident report
shall be turned in at the -end of the shift or sooner if re-
quested." Immediately after Criniti learned about the cli-
ent's fall, he tried to reach "base",by radio, but could not
get through (see infra fn. 54):' After delivering her to her
doctor's office, he tried to reach "base" by telephoning
both of the Company's telephone numbers, but received
-a busy signal for both numbers Criniti then proceeded to
perform the pickups and deliveries called for by his de-
livery sheet. When these duties 'permitted, tie made addi-
tional attempts to- reach "base"- by radio, but was still
unable to get through (see infra fn. 54). He also made an
additional effort to telephone "base," but again received
busy signals for both numbers.
Meanwhile, the Company learned about the incident
by a means about which company witnesses gave some-
what conflicting' testimony.52 Violet Corban' credibly
51 There is no other evidence about this alleged "commotion," which
Cnniti was not asked about -
52 Violet Corban testified that she first heard about the accident when
Company President Schwartz or Secretary-Treasurer Greenberg tele-
phoned her that the client had called to complain Robert Corban testi-
fied that he first heard about it when the client's doctor called' and ex-
pressed concern about the client's injury Robert Corban testified that the
doctor's complaint was heard, during a three-way telephone conversa-
tion, by himself, President Schwartz, and someone else whose identity
Robert Corban did not recall Schwartz did not testify . Greenberg testi-
fied for the Company, but.was not asked about this matter See also the
text attached to fn 53, infra
55 This finding is based on Criniti's testimony, received without objec-
tion , limitation , or direct contradiction (see infra fn 66) Pistilli's testimo-
ny is discussed infra
54 Pistilli 's statement that Criniti's radio was working "now," and
Violet Corban's testimony that "base" had been unable to reach Cnniti
by radio, corroborate Cnniti's credited testimony that he had been unable
to reach "base" by radio
testified that the Company tried to reach Criniti by radio
but was unable to do so About 2 hours after the acci-
dent, Criniti made a third effort to reach "base" by tele-
phone. This time , he reached dispatcher Pistilli. Criniti
said that he had had an accident Pistilli said, "We know.
The doctor called in for the lady and she got hurt."53
Pistilli screamed at Criniti, "Why didn't you call about
the incident. You got a radio, it's working now, what's
wrong?"54 Criniti said that he had attempted to reach
"base" by using the radio and the two "base" phone
numbers, but had been unable to "get through" before
this moment. 55 Pistilli said that he knew the phones
were sometimes busy and employees could not reach the
Company for several hours Pistilli told Criniti to finish
his run, and said that Violet Corban wanted to see him at
the end of the day.
After receiving these instructions from Pistilli, Criniti
finished his runs, and then again unsuccessfully tried to
get through on the radio. Then, he completed the paper-
work which he ordinarily had to turn in at the end of
the day, such as his routing papers and his record of
money receipts; filled his vehicle with gasoline; and re-
turned to "base." As soon as he returned, Pistilli gave
him an incident report form, which Criniti did not have
in his vehicle, and said, "Quick, fill this out." Criniti did
so, and returned it to Pistilli. Criniti was told to wait,
and did so. Eventually, he was called into the office to
see the Corbans, who had in their possession the incident
report form which Criniti had filled out and given to Pis-
tilli. Violet Corban asked Criniti why he had not report-
ed the incident by means of the telephone or the radio.
He said that he had reported the incident to his dispatch-
er. She said, "[t]hat ain't the way we heard it. We heard
you didn't call in at all ." Criniti told her to ask dispatch-
er Pistilli about the matter. She said, "[b]ut wait, that
was 2 hours later." Criniti said that this was the first time
he could get through, because Pistilli had been putting
pressure on him to perform the client pickups and deliv-
eries called for by his delivery sheet. Although Criniti
gave the Corbans a confused account of the accident,
Violet Corban testified to the opinion that it was not
Criniti's fault.
November 30 was a Tuesday. Criniti reported to work
on the next day he was scheduled to work, inferentially
no later than Friday, December 3. He found that his
timecard was not in the rack. When he asked the em-
ployee who made up the timecards what had happened
to his card, she said-he had been fired. He asked Violet
Corban how he had been terminated; and she said, "You
mean you weren't called?" He said no, and that he had
spent $5 in gas to get there to go to work.
Robert Corban testified that the decision to discharge
Criniti was made by Violet Corban and approved by
Robert Corban. Violet Corban testified that it was she
who decided to discharge Criniti, that she reached this
55 Robert Corban, substantially corroborated by Pistilli, testified that
during this period , when the garage facilities were located on 61st Street,
there were only two numbers which could be called to reach all of the
Company's telephone lines at both 61st and 13th Street The "Radio Pro-
cedures" document which Violet Corban had just given Cnniti gives
three numbers, two of them described as "33rd Street" numbers
ALERT MEDICAL TRANSPORT
decision at the time when she received notice from "13th
Street" on November 30 about the accident and realized
that Criniti had, not yet reported it (in other words,
before Criniti came back to "base" on - November 30),
and that he was discharged because he had failed to
report the accident by radio or telephone within a rea-
sonable time after it occurred.' The Corbans were not
asked why the Company did not tell Criniti about his
discharge when they interviewed him upon his return to
"base" on November 30. Criniti's personnel folder con-
tains an "Employee Status Change Report," filled out
and signed by Violet Corban, which states that he was
discharged, effective November 30, because he "did not
report- in incident on bus where client was injured."
Criniti did not see this document until long after his dis-
charge. This document aside , Criniti was 'never given -a
reason for being discharged.
As previously noted, the Company's written "employ-
ee operational procedures" require, as to "incidents in-
volving injury to patients," that "an incident report shall
be turned in at the end of the shift or sooner if request-
ed." In January 1983, driver Lawrence Brown was driv-
ing a vehicle when a passenger client in a wheelchair fell
and struck his head on a metal ramp. Brown did not pre-
pare an incident report - about this incident. Brown was
never disciplined in connection with this incident. He
was promoted from driver II to driver I about February
19, 1983. There is no evidence that he ever engaged in
any union activity. -
My findings as to the Criniti-Pistilli conversations on
November 30 are based on Criniti's testimony, to a very
limited extent corroborated by undisputed and documen-
tary evidence that on that day he prepared the written
incident report which (according to Criniti) Pistilli told
him to prepare and 'he gave to Pistilli, and which (ac-
cording to Criniti's uncontradicted testimony) the Cor-
bans had in their possession during their November 30
meeting with him.56 Pistilli was not directly asked about
conversations with Criniti on November 30, his last day
of active employment. Pistilli testified that "a week or
so" after the wheelchair-lock incident (which, the record
shows, occurred on November 24), Robert Corban asked
Pistilli whether, "three days ago," Cnniti had reported
an accident to a woman ' in his vehicle, and Pistilli said
that he knew nothing about it because Criniti had not re-
ported any such incident. Pistilli further testified without
objection or limitation that there were no log entries
about the matter; that no accidents had been reported for
2 or 3 weeks over the radio (Criniti testified that he re-
ported the accident by telephone, and the record fails to
show whether the-log entries were limited to radio mes-
sages); and that assistant dispatcher Dan Reed thereafter
told Pistilli that Reed did not. remember anything about
an accident involving Criniti. However, on November 30
Violet Corban told Criniti, in effect, that Pistilli had said
that Criniti had reported the accident. Furthermore,
Robert Corban was not asked about the conversation de-
scribed by Pistilli. Moreover, in view, of Violet Corban's
56 No management witness -testified that on that day he or she told
Criniti to prepare the report, or that someone other than Pistilli physical-
ly turned the document in to management
651 '
credible testimony that on November 30 the Company
unsuccessfully tried , to communicate with Criniti by
radio to ask him about the accident, it is highly improb-'
able that neither dispatcher Pistilli nor assistant dispatch-
er Dan Reed was told about it at that time; 'nor does any
reason appear why Pistilli would want to conceal such
knowledge from Robert Corban. Also, although it is un-
disputed that the accident occurred on November 30,
Pistilli testified (in effect) that Corban dated the accident
as having *occurred before November 30. For the forego-
ing reasons , and after considering the witnesses' demean-
or, I credit Criniti's testimony about his November 30
conversations with Pistilli, and do not accept the testiino-
ny of Pistilli referred to in this paragraph.
4. The Regional Director's unit determination; the
appropriate unit; the election and the objections
thereto
On November 29, 1982, the Regional Director issued a
decision and direction of election in the representation
case. On the ground. that the clerical employees lacked a
sufficient community of interest with the petitioned-for
employees, he rejected the Company's, contention that
they should be included in the unit..In addition, he found
that Ruth Gross, Ambulance Manager Renzulli, and. Bus
Manager Wearing were supervisors within the meaning
of the Act, and rejected the Company's contention that
they should be included in the unit. The Company did
not file with the Board a request for review of this unit
determination, has not discussed any unit issue in its
posthearing brief, and conceded in its answer that Ren-
zulli and Wearing were supervisors.57 Further, as previ-
ously noted, the Company admits, in effect, that as of
October 12, 1982, cards had been signed by a majority of
employees in both the unit as sought by the Union and
the unit as urged by the Company. The complaint alleges
to be -appropriate the unit as found by the Regional Di-
rector. I so find, except for an address change called for
by the Company's having moved its garage facilities a
few days prior to the hearing before me. Accordingly, I
find that the following employees of the Company con-
stitute a unit appropriate for collective bargaining within'
the meaning of Section 9(b) of the Act:
All station wagon drivers, van drivers, bus driv-
ers, ambulance drivers, drivers 2, dispatchers, emer-
gency medical technicians, car washers, aides, serv-
ice mechanics, light mechanics, night mechanics,
daytime mechanics, parts employees, and garage,
cleaning and -building maintenance employees em-
ployed by Brocal Corp. d/b/a Alert Medical Trans-
port at its •50 Laurel Street, Philadelphia, Pennsyl-
vania facility, excluding office clerical employees,
guards and supervisors, as defined in the Act.
The election.was held on December 30, 1982. The
Union lost by a tally of 47 to 59, with 1 challenged
ballot. On January 6, 1983, the Union filed timely objec-
tions to the election.
67 Its answer disputed the contention that Gross was a supervisor
However, the Company's brief states (at 5) that this issue is moot
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The alleged postelection unfair labor practices
a. The allegedly unlawful suspension and termination
of Rachel Bell
From 1976 to 1980; Rachel Bell worked for the Phila-
delphia State Hospital as a psychiatric aide . She worked
with handicapped and mentally disturbed patients, and
with people that "just couldn't do anything for them-
selves." Thereafter, and until April 11,'1982, she worked
as a driver' in the Kensington area for United Cerebral
Palsy (UCP). On April 12, 1982, UCP told its employees
that UCP was changing over to the Company and that
the employees would be part of the contract to provide
transportation The Company assigned her to the same
route which she had driven for UCP.
Bell signed a union card in September 1982. Beginning
about early September, she approached various employ-
ees on the job and asked them how they would feel
about having a union . She obtained union cards at the
union hall and from Union Organizer Reid. She gave out
union cards to 20 or 30 people, and asked them to sign.
Also, she' gave cards to employees Irene Frazier (an al-
leged discriminatee; see supra sec. II ,B,3,d) and Ford for
them to distribute to other employees. Bell was a
member of,the Union' s organizing committee which set
up union meetings and other union gatherings. She dis-
tributed to employees who had not attended union meet-
ings the brochures and pamphlets she had obtained there.
On at least one occasion, she stood in front of the facility
before clock-in time and distributed cards urging em-
ployees to attend a forthcoming union meeting . She at-
tended all but-one of the seven union meetings, including
the last preelection meeting, which was attended by only
three active employees; in consequence of her attendance
at that meeting, she failed to attend the Company's last
preelection meeting, where the employees were urged to
vote against the Union and at which the Company kept a
record of attendance. She credibly testified that the Cor-
bans regularly saw her standing outside the facility
before clock-in time with Union Organizer Reid. She
credibly testified that• about mid-October, she asked
Robert Corban if it would be all right to post "union
papers" since the Company had already posted its own
literature, to which he said no. About November 18,
while she and others were wearing union buttons, Robert
Corban told these employees that if they wore union but-
tons on their uniforms they would have to punch out.
Bell then took off her union button from her uniform
and put don her handbag. Robert Corban admittedly
saw her do this. The' Corbans did not deny frequently
seeing her outside the facility with Union Organizer
Reid, or seeing her wear her union button on her hand-
bag during' the campaign; nor did Robert Corban deny
the conversation about posting. However, he. testified
that he was not aware that Bell was part of the Union,
and Violet Corban (who admittedly kept a list of who
supported the Union and who did not) testified that she
was not-aware of Bell's activities dunng the union cam-
paign. s 8
58 Robert Corban also 'testified that shortly after the October 15 peti-
tion was filed, when "somebody said something about [Bell's] belonging
Bell was moved from the UCP run to the Jefferson
run about December 10, 1982. No contention is made
that this transfer was unlawfully motivated. However,
the Company contends that the considerations which al-
legedly led to this transfer also played a part in her alleg-
edly unlawful suspension on January 27, 1983, and her
allegedly unlawful 'discharge several days later. The
Company contends that her December 1982 transfer was
motivated by complaints about Bell from UCP represent,
atives and clients. The Company's probative, evidence
that such complaints were made consists of testimony by
Robert Corban and (to a very limited extent) Violet
Corban and Wearing.
Robert Corban testified that about mid-December
1982, UCP Executive Director Willis A. Dibble Jr. com-
plained that he had observed Bell "on one or two occa-
sions, sitting behind the building killing'time with it load
of clients on,.which he felt was detrimental to their wel-
fare." On a morning in June 1982, when Bell arrived at
the UCP facility with a vanload of adult clients, she
found that two vans loaded with client children were in
front of her van. Ordinarily, the company drivers were
supposed to permit vanloads of children to be unloaded
first, because the children were picked up earlier 'and
were scheduled to be unloaded earlier. In order to 'avoid
blocking the street while the children's vans were being
unloaded, Bell pulled her van around to the back of the
facility. While she waited there, for about 5 minutes and
with the motor still running , she busied herself by pick-
ing up some trash on her vehicle and replacing a screw
which fastened to the floor of the van some metal strip-
ping on which Bell herself had cut her toe and which
she feared might injure a client .59 When Bell then drove
up in front of the facility and was unloading her passen-
gers , UCP transportation coordinator Harry Reed told
her that Dibble wanted to speak to her. After her van
was empty, she went to Dibble's office He asked her
why she had stopped off at the back, and what she was
doing there. When she explained, he told her that there-
after she could bring her clients around to the front, but
that she should pull her van to the side. Dibble did not
seem particularly upset. - -
Robert Corban testified that on two or three occasions
between September and November 1982, Dibble com-
plained that he had seen Bell drive past the UCP facility,
with an empty van, half an hour before the program was
scheduled to start. Corban went on to testify that after
receiving the second or third complaint, he looked at the
routing and ascertained that she should not have been
going past empty at that time . When the first two clients
whom Bell was supposed to pick up were not scheduled
to come in, she would pick up her third client by driving
past the UCP facility on the expressway 'to the first ex-
to the Union she said she had no part of the Union She wasn't
going to pay part of her money out to anybody " Although Bell was not
asked about this conversation, I doubt that it occurred, in,view of its in-
consistency with her other conduct dunng this period In any event, as
shown infra , management believed her to be a union supporter
51 The Company's operational procedures state that the crew assigned
to a vehicle is responsible for keeping it clean "inside and out "
ALERT MEDICAL TRANSPORT 653
pressway exit beyond the UCP, which exit was nearest
to that client's residence.
Robert Corban further testified to complaints by
Dibble, Harry Reed, and clients that Bell was late. Ini-
tially, Corban testified that he received three or- four
such complaints from Dibble and Reed "throughout Sep-
tember, October, November." Later, Corban testified
that he had "at least half a dozen" such conversations
with Dibble alone, and at least two such conversations
with Reed alone. Corban testified that Dibble com-
plained of "almost . . ongoing" lateness ranging from
20 minutes to an hour. Corban went on to testify that
Reed complained that 'the vehicle was supposed to arrive
at 8:30 and that it "never" came in on time. This testimo-
ny aside, Bell's testimony that she was supposed to start
picking up her UCP clients at 8 a .m. and deliver them by
9 a.m. stands uncontradicted.60 Corban went on to testi-
fy that Reed read off a list of late arrivals which ranged
from 20 minutes to an hour . While on the UCP run, Bell
was frequently assigned to vehicles with mechanical
problems. She was sometimes delayed because her vehi-
cle broke down, because she had to wait to be assigned
to a different vehicle, or because she had to wait for her
vehicle to be checked by a mechanic. She made oral
complaints to the Company about these mechanical
problems, and also reported these problems in her daily
written vehicle reports. Robert Corban testified that
"from time to time" Dibble has mentioned to Corban
problems with other buses.
Robert Corban testified on direct examination that on
a date or dates which he was not asked about, one parent
of a child client complained that Bell was "picking up
the child, carrying him around on the vehicle for' a
period of time"; and that another such parent complained
that Bell "was going by a service station with the [par-
ent's child] on a vehicle, and setting there talking to
somebody."-On redirect examination, and still without
being asked about dates, he referred to "Complaints from
family of lateness of picking up the clients." On recross-
examination, Corban testified that the clients' families
complained about "The time they were being picked up.
I don't think, if my memory serves me correctly, it was
about the time they spent on the van. I am not sure .. .
if you have a predetermined run, [you're] usually at the
house around the same time each morning , and it should
not vary greatly."81 About August 1982, Supervisor
Renzulli told Bell that a client had complained about
Bell's stopping at a gas station while she had UCP clients
on' her van, and asked why she had done so. She replied
that she had stopped to get water for her van because it
had overheated. -
Bus Manager Wearing testified without objection or
limitation as follows : In the 'summer of 1982, UCP Rep-
60 When directly employed by UCP , she picked up the first client at
7 30 a.m There is no evidence that the starting hour of the UCP pro-
gram was ever changed
81 Bell testified that in May 1982, a UCP client who was picked up
early in the run complained about having to sit on the van for a long
period of time, and that Bell replied the first client to be picked up in the
morning was the last client to be taken home in the evening There is no
evidence that the Company knew about this conversation , in which Bell
correctly stated company policy
resentative Joe Scullin complained to him that certain
clients should have been picked up but had not yet ar-
rived. Wearing's records showed that,Bell was supposed
to pick up "some" of these clients. Wearing then report-
ed his conversation with Scullin to Violet Corban, who
said that "he" (inferentially, her husband) had already
had several complaints about Bell's being late. .
Violet Corban did not corroborate Wearing's testimo-
ny in this respect, and testified that she did not speak to
Bell about any complaints from UCP. Bell testified that
Robert Corban never discussed , this alleged complaint
with her. Robert Corban did not testify about any com-
plaint from Scullin. Accordingly, and for demeanor rea-
sons , I do not accept Wearing's testimony in the preced-
ing paragraph.
About December 10, 1982, Bell was transferred from
the UCP run to the Jefferson run. Violet Corban testified
that Bell was transferred about a month after UCP's last
complaint about her. Bell testified that she was given no
reason for the change, and that nothing was mentioned
about complaints from Dibble, Reed, or anyone else
about being late. For demeanor reasons and other rea-
sons discussed infra, I credit her testimony in this re-
spect, and do not accept Robert Corban's testimony oth-
erwise.
Robert Corban testified that during an alleged conver-
sation with Dibble about moving Bell , Corban said that
he would "have to have" Dibble's complaint about her
in writing . Corban testified that he made this request "in
order to fortify our position, to move her out " Corban
went on to testify that about-6 weeks after the transfer,
he received a letter from Dibble reciting complaints
about Bell. Company counsel stated on the record that
this letter (marked for identification as R. Exhs. 14 and
28) is dated and was received after Bell was terminated
(Tr. 934 LL. 10-11.)62
Robert Corban testified- that in November or early De-
cember 1982, he talked to Bell "about her lateness .. .
about the complaints from the families, about her going
by a service station talking, delaying the run and after
awhile she was going by UCP empty, and she told me
that such and such a person had to do this rand that. I
asked her why she wasn' t.running the route in the order
that it is set out , and she had thirteen reasons, and I told
her that she would discontinue that practice, and do it
.the way she was told." Corban went on to testify that he
discussed Dibble's alleged complaints when Corban took
Bell off the UCP run in mid-December. Corban admit-
tedly made no memo of either of these alleged conversa-
tions . Further, he testified that Bell did not mention, at
least during this first alleged conversation, that she had
been assigned to a vehicle which had some mechanical
problems; his initial testimonial account on direct exami-
nation of the alleged transfer interview with Bell con-
tained no reference to any specific complaints; and on
direct examination he referred only to this transfer (and
not to the foregoing alleged reproofs of Bell) when asked
62 Accordingly , the Company's brief is plainly in error in asserting
(pp 16-17) that this letter was "received by [Robert] Corban . at the
time of her discharge investigation ." I twice rejected the Company's
motion that this letter be received into evidence
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what action he took with respect to some of these al-
'leged complaints. Moreover, Corban admitted that be-
tween January 1982 and July 1983, the Company had
transferred at least '12 drivers at the program director's
request, "Sometimes, without the knowledge of the
driver.",In view of the testimony of Corban summarized
in the last two sentences, and for demeanor reasons, I
credit Bell's testimony that she was never given any
reason for her transfer from the UCP run. For the same
reasons , I credit her testimony that aside from the Ren-
zulli incident, nobody said anything to her about clients'
complaints regarding the length of time the clients were
on the vehicle, and that' Robert Corban never discussed
with her -,any problems with her performance. on the
UCP run or any complaints he said he received about
her performance on the run.
As previously noted, on a preelection day between
December 8 and - 24, 1982, Rona Schwartz, who admit-
tedly knew that Bell was interested in the Union, had a
private chat with Bell during which Schwartz attempted
to dissuade Bell from supporting the Union. Among
other things; Schwartz said that she would look into the
reason why Bell was not assigned to a job she wanted,
and suggested that employees present their grievances to
management directly rather than through a union, to
which Bell replied that she did not think that would
work.
. - About mid-January 1983, after the filing of the charges
in Case 4-CA-13446 and the election objections, Bell
was transferred from the Jefferson run to a Co-Mhar
run. At first, she was. assigned to pick up about -10 clients
at about 3 pickup points on Frankford Avenue. After she
had delivered them 'to the Co-Mhar center, she either
was assigned to other runs on a day-to-day basis, or
clocked out until it was time to drive back to the center
to drive her Co-Mhar clients home. Pursuant to instruc-
tions from then general manager Wearing, on the
evening of January 25 office -employee Michael Wright
(also referred to in the record as Brighton) told Bell that
as of next -morning, she would have to pick up all the
clients previously assigned to Calvin Williams, another
driver on the Co-Mhar run, in addition ,to her own.63
Wright told her that Calvin Williams was being assigned
to another run. 64 Wright told her to do Calvin Williams'
old run first and then to do her own old run. Because
Bell's van was too small. to accommodate all the 'clients
on both runs, Wright's instructions meant that she would
have to take Calvin Williams' old clients to the Co-Mhar
center before she could start picking up her 'old clients.
All the clients were -supposed to be at the center at the
same time. Bell said that she wondered why Wearing
63 This finding is based on Bell 's testimony , which is corroborated by
company records showing that she was assigned on January 26 to one
run to pick up about 14 clients and another , run to pick up about 10 cli-
ents. I do not accept Weanng's testimony, that Calvin Williams' old run
was 'probably given to a driver" other than Bell, and that the change ef-
fected in hei assignment as of January 26 was to pick up four or five
brand new clients - r
84 Weanng's testimony suggests that Calvin Williams may have been
removed from the run because of a request from the Co-Mhar program
manager. Williams continued to work for the Company until mid-July
1983, when he was'suspended because of some problems with his driver's
license -
had assigned her two runs when "they" knew she, did
not know Calvin Williams' run, and that she would
speak to Wearing the next day. She said nothing to indi-
cate that she would not do her assignment.
On the following morning, Wearing told,her that, ac-
cording to Wright, Bell had obscenely refused to do her
new assignment and had said that nobody could make
her do it. Wearing further said that Robert Corban, had
said that if she did not want to do the run, she could
punch her card in the morning and go home. 65' Bell
truthfully denied making these remarks to Wright. She
said that she would perform the assignment, but that it
would be difficult for her to get there on time because
she was not familiar with Calvin Williams',run. Wearing
said that he did not know the streets either, and told her
to check with Williams, driver Tom Bridges, or someone
else who was familiar with the area. Wearing gave' her
two run sheets, one for her old run and one for Calvin
Williams''oWrun. Before leaving on that run, she-asked
him and driver William Facison (who knew the city
pretty well) to give her some directions about where to
find the clients on Williams' old run whom she was to
pick up at their respective homes. They gave her two
different versions. Wearing testified that the responsibil-
ity of a driver who had been assigned a new route is to
do "exactly what she did"-namely,, to tell Wearing that
she was unfamiliar with the area so that he could tell her
who would know about it. Wearing further testified that
he thought a driver should carry around a map. The
record fails to show whether Bell carried around a map.
The Wednesday, January 26, run-sheet instructions for
Calvin Williams' old run stated on-its face that Bell was
supposed to pick up about 14 clients at 13 different loca-
tions, most of them on different streets. Bell did not stop
at any homes where the sheet showed that people were
not scheduled to come in. She did stop at two locations
where the sheet failed to show whether the clients were
supposed to come in that day; the radio on her vehicle
was not working that day, although the. equipment
report which each driver is supposed to fill out at the
end of his shift specifically inquires whether the radio is
working. At both of these locations, and also at four lo-
cations, where the sheet specifically said that the clients
were supposed to come in, she was advised after she ar-
rived that the clients were not, coming. At another loca-
tion, she was'advised that, she, was supposed to pick up
two clients who were not listed on her sheet- Because
her radio was broken, she.went to a telephone booth and
telephoned "base,"• which advised her that one of these
clients was supposed to come in and one was not. After.
driving Calvin Williams' former clients to the center,
Bell performed her old run. She was not able to bring to -
the center by 9 a.m. all the .clients whom she was-as-
signed to pick up on January 26. The supervisor at the
house where some of the clients lived, and about two of
the clients, on Bell 's old route telephoned Co-Mhar to
65 Wright, who no longer works for the Company, did not testify
Weanng testified that he had relayed Wright 's alleged report to the Cor-
bans and that Weanng 's.remarks to Bell conformed with Robert Corban's
instructions The Corbans were not asked about their conversation with
Wearing.
ALERT MEDICAL TRANSPORT
complain that she was late. After Bell had dropped off
all her clients, about 11.30 a.m, the Co-Mhar program
director, identified in the record as "Lynn," asked Bell
why she had brought them in late. Bell said that she was
now doing both her run and Calvin Williams' run Lynn
looked surprised. She said that "they had tried bringing
the clients in on three vans before and they were coming
in late."66 Lynn asked Bell whether she thought that
Calvin Williams would be on the run again. Bell replied
that she did not think so. Williams had been sent behind
her to pick up clients that she did not pick up, but he
found out that she had picked up all the clients.
On the return trip that day, Bell attempted to load all
her clients into her van at once, but there was not
enough room. She made two trips to the center to take
them home. She was late returning to "base," and did
not get paid for the time that she was late. When she ar-
rived, Robert Corban remarked, in a joking fashion, "we
thought you had got lost out there." He asked whether
she could do a little better the next day. She said that
she would try, but that she still did not know the loca-
tions where she was supposed to pick up a lot of the
people. She further said that she had had to make two
trips each way. Wearing asked her whether she had had
a problem. She said yes, but "I think I might be able to
get it." He told her to try to do both runs the best she
could, and offered no help. .
Or, the following morning, Bell was again instructed
to do Calvin Williams' old run and then do her own old
run. Before leaving "base" that day, she made some no-
tations on the run sheet for Williams' old run to assist
her in picking up the clients in as short a span of time as
possible. Wearing offered no help himself, and did not
ask her to find any, but told her to try to do her runs the
best she could. Of the approximately 10 clients whom
the face of the sheet told her to pick up, she went to
pick up 2 who did not come in. She did not bring all the
clients on both runs to the center on time.67 After drop-
ping off her clients at Co-Mhar, she had to get Lynn to
sign Bell's sheet. Bell had to wait a few minutes for
Lynn's signature, because Lynn and another Co-Mhar
employee were trying to calm down a client (not one of
Bell's) who was a little upset. Bell told Lynn that Bell
was still doing both runs, and Lynn said nothing to Bell.
After obtaining Lynn' s signature , Bell called back to
"base." She spoke to Wearing, who asked whether she
was just getting finished. She said yes. He said that he
would see her when she came back to "base." -
When she returned to "base," at 11:15 or 11:30 a.m.,
she went over to punch her timecard. Wearing there-
upon gave her an envelope and told her to open it imme-
66 This finding is based on Bell's undemed and credible testimony, re-
ceived without objection or limitation See American Rubber Products
Corp Y NLRB, 214 F 2d 47, 52 (7th Cir 1954), Today's Man, 263 NLRB
332 (1982)
67 In view of the probabilities of the case, I am inclined to accept
Wearing's testimony that she was not as late on January 27 as on the first
day On the other hand , his testimony that she received the same assign-
ment on the day after that (i e , January 28), and on that day was later
than oil the first day, is impeached by the documentary and other evi-
dence that she was suspended on January 27 The record fails to show
who drove these routes on January 28, on the hour at which they were
delivered at the Co-Mhar Center
655
diately It contained a notice (R. Exh. 11),, dated January
27 and signed by Robert Corban, that she was being in-
definitely suspended as of "12 p.m " that day, for "wil-
fully not following company orders and -policy, and
verbal disagreement." Wanting to know what policy she
had failed to follow, she asked to speak to Robert
Corban. Wearing said that Robert Corban did not want
to speak to her, that she would have to wait and speak
to Violet Corban, and that Violet Corban was not there.
Robert Corban testified that he personally suspended
Rachel Bell, pending an investigation, because of the
delay in the programming, on the last program she was
on, and several complaints on a program that she had
been on prior to that point. Violet Corban testified that
when she came in on January 27, her husband told her
that he had suspended Bell "indefinitely" (Violet Cor-
ban's initial version) or for 3 days (her later version) be-
cause of'complaints from Co-Mhar about Bell's "lateness
problem" and "whatever other reasons, I don't know. I
wasn't there at the time of the suspension" (although
Violet Corban testimonially authenticated the suspension
notice, R. Exh. 11, which set forth alleged reasons for
the suspension) She went on to testify that her husband
told her to look into the situation and decide what to do.
Violet Corban further testified that that same after-
noon, she asked Wearing about "the circumstances of
[Bell] being late," and that he said that she had previous-
ly had problems about who was to be picked up and
where the streets were, but had told him that morning or
the previous morning (her first morning on the run) that
she could handle it. Company witness Wearing did not
testify to any problems by Bell about whom to pick up,
and he did not testify to any conversations that afternoon
with Violet Corban in Bell's absence. Accordingly, and
for demeanor reasons, I do not credit Violet Corban's
testimony about this conversation with Wearing. Violet
Corban went on to testify that she had looked at a report
from Wright, which she identified as Respondent's Ex-
hibit 13, that Bell had complained about being assigned
an extra run. This report is dated January 18 and at-
taches that date to Wright's conversation with Bell when
he gave her Calvin Williams' old run sheet. The testimo-
ny of Wearing, as well as Bell, establishes that the
Wright-Bell conversation regarding this matter- occurred
on January 25. Accordingly, and for demeanor reasons, I
do, not credit Violet Corban's testimony that she read
this document. Violet Corban testified that she talked to
Co-Mhar employees Teresa Higgins (Lynn's secretary)
and that Higgins said that Bell "was terribly late and no
one seemed to have that much problem picking up those
clients before " Because company witness Higgins was
not asked about this alleged conversation, and for de-
meanor reasons, I do not accept Violet Corban's testimo-
ny about it. -
After waiting for 2 or 3 hours to see Violet Corban,
Bell was called into the office. Violet Corban told Bell
that President Schwartz had made a telephone call that
he wanted Bell suspended.68 Violet Corban told Bell
68 Schwartz did not testify There is evidence that he conversed by
telephone with Co-Mhar Director Lynn at an unspecified hour on that
day, January 27, but there is no evidence about what was said.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she was being suspended because she had taken too
long with her Co-Mhar run. Violet further told Bell that
she had been taken off the UCP run for being late;' this
was the first time anyone had so stated to Bell. Bell said
that she had been late on the UCP run because of me-
chanical problems with her vehicle and because addition-
al clients had been added to that run Violet Corban
asked her whether she had told Wearing that she was
"okay that day [January 27] and she could handle it."69
Bell said that she had told Weanng that she had had a
problem but "might be able to get it."70 Violet Corban
asked Bell why she had come in late on the Co-Mhar
run. Bell said that she was unfamiliar with-the people
and the locations. Violet Corban asked why Bell had
stopped at the house of a client who was not supposed to
be picked up that day. Bell said that where the run sheet
failed to show whether or not a particular client was
supposed to be picked up that day, Bell drove out to that
client's home because the client was new to Bell'and she
had no independent way of knowing whether the client
was to be picked up.'t Violet Corban said, that she
would telephone Bell and let her know whether she was
coming back to work or was being dismissed.
At this time, Bell did not have a telephone at her
home. She had given the Company her father's tele-
phone number, but she was not at her father's house
very often. On February 1, , she telephoned Violet
Corban, who told her that "they had not made a deci-
sion." On the morning of February 2,, Bell telephoned
again . Violet Corban told her that "they were investigat-
ing Bell's case," and told her to call again.before the day
was over. Later that day,- Bell called again. Violet
Corban , said that Bell 'was terminated. Bell's personnel
file contains an "Employee Status Change Report," all of
whose handwritten portions are in Violet Corban's hand-
writing. The foi'in states that Bell was discharged, effec-
tive Thursday, February 1. The front of this document
contains the following entry:
Was suspended indefinitely on Jan. 27, 1983 for get-
ting her'clients into the center so late. Investigation
89 My finding that this question was asked is based on ,Violet Corban's
testimony
70 This finding is based on inferences from the composite credible tes-
timony of Wearing (who was present during at least this part of Violet
Corban's conference with Bell ) and Bell that she had in fact told this to
Wearing On an undisclosed date, Violet Corban prepared a memoran-
dum of the January 27 conversation between herself, Wearing, and Bell
This memorandum states, and Violet Corban testified, that Bell agreed
she had unequivocally told Wearing that she could handle both runs -Be-
cause not even Wearing testified that. Bell had so advised him, for de-
meanor reasons , and in view of the probabilities of the case , I do not
credit this portion of Violet Corhan's testimony or memorandum
7 i My finding in this sentence is based on Bell's testimony In view . of
the credible evidence about what happened that morning, and for de-
meanor reasons, I do not accept Violet Corban's testimony that Bell ad-
mitted to being "confused" and going to the house of a client who the
run sheet showed was not supposed to be picked up that day Although
Violet Corban's memorandum of this conversation (supra fn 70) states
that Bell "stops at houses that are not scheduled for pickup that day,"
Violet Corban testified about a discussion of only one such alleged inci-
dent For this reason , and in view of the credible testimony of Bell set
forth in the text, I do not accept the portion of Violet Corban's memo-
randum, not specifically testified to by her, that Bell said she did not un-
derstand the system used on the run sheet to show who was to be picked
up each day '
showed that she should have made better time, and
excuses about not knowing procedure were not ac-
ceptable. Was frequently argumentative about runs
to managers and office personnel
Violet Corban
ROUTE TO GLADYS
On the back of this document appears the following
entry:
We removed Bell from her UCPA 'run because of
similar complaints from UCPA administration.
.Violet Corban did not testify -that she told Bell during
their January 27 conversation that she was frequently ar-
gumentative about runs, or testify that Bell was suspend-
ed or discharged partly for this reason ; nor is this matter
referred to in Violet Corban's memorandum about the
conversation (see supra fn. 70).
My findings about the January 27 conference between
Bell and Violet Corban are based on Bell's testimony and
on credible parts of the testimony of Violet Corban and
Weanng. I do not credit Wearing's uncorroborated testi-
mony that Violet Corban suspended Bell during this
interview, for demeanor reasons and in view of the un-
contradicted testimony of Bell and the Corbans, support-
ed by the suspension notice, that Robert Corban had pre-
viously suspended Bell. For demeanor reasons, I do not
accept Wearing's testimony, not corroborated by either
Bell or Violet Corban, that office employee Wright's
January 25 conversation with Bell was mentioned during
this conversation. In view of Violet Corban's February 1
entry as the effective date of Bell's discharge, I do not
accept the suggestion' in Violet Corban's testimony that
Bell was terminated during the January 27 interview. I
note, however, that neither Violet Corban nor any other
witness described with any specifics at all any further'in-
vestigation of Bell during this 5-day interval. The record
contains no explanation of why Violet Corban prepared
company records which set forth a February 1 effective
discharge date but (according to Bell's uncontradicted
testimony) told Bell on the morning of February 2 that
no decision had been made.
On other occasions when drivers are late , have been
the subject of complaints from clients' parents, have had
mechanical problems with their vehicles, or have had
other- problems, the Company has sent out Supervisors
Wearing or Renzulli, or office employee Wright, to in-
vestigate the problem. When a driver is sent out on a run
he had not previously performed, the Company usually
sends the driver out with another driver to teach him the
unfamiliar run. The Company has done this for as long
as 2 weeks.
The week after Bell's suspension, the Company went
back to using four drivers to take clients to the Co-Mhar
program, and twice decreased the number of clients in-
cluded in the run which had been transferred from
Calvin Williams to Bell effective January 26. More spe-
cifically: Matthews was assigned to route 5A beginning
no later than January 31 and ending no earlier than Feb-
ruary 27. Route 5B, to which Bell's Co-Mhar assignment
had been limited before January, 26, was assigned to
ALERT MEDICAL TRANSPORT
Ford beginning no later than January 31 and ending no
earlier than February 27. Route 5-B-I (the route number
assigned to Calvin Williams' route when it was trans-
ferred to Bell effective January 26) was assigned to
driver Swingle beginning no later than February 7 and at
least until February 27.72 Effective no later than January
31, 1983, the Monday after Bell's suspension, Route 5-B-
1 was diminished from 17 clients to 13 clients, mostly'by
the transfer of 3 clients to Route 5-C-1, being driven by
Ford.73 After Swingle began to drive Route 5-B-1, and
at least during the week ending February 27, that route
had no more than 12 clients, 5 fewer than when Bell had
driven it. Effective January 31, 1983, Route 5(D) was
transferred from Ford to Facison, who drove it at least
until February 27.
b. The allegedly unlawful discharge of John Williams
(1) Williams' union activities and Respondent's
reaction
'John Williams was hired by the Company on February
2, 1982. During his 1 year of employment by the Compa-
ny, he drove ambulances, medical transport vans, school
buses, and' senior citizen vehicles. Management told him
that he was a good worker At one time or another, he
drove almost all the routes often encugh to become fa-
miliar with the clients on each route. At management's
request, Williams taught new drivers the routes, how to
fill out incident and accident reports, how to check out
the vehicles in the morning, where to gas up, where to
turn in the vehicles, and the peculiarities of the.clients on
each route 74 On an undisclosed date between July and
September 1982, before the union campaign began,
Violet Corban told Williams that he would be suspended
if he were late one more time. He was never late again.
Williams signed two union cards, including one on Oc-
tober 12, 1982. Before October 15, while, standing in
front of the facility before and after work and during
'lunchbreaks„ he gave out 10 to 20 cards to other'em-
ployees and asked them to sign. Williams spoke about
the Union with other drivers for the Company while
they were all waiting for clients to come out of the hos-
pital. From time to'time, before working hours, he stood
by the gate with other employees and union representa-
tives, and spoke to workers about, the Union. From time
to time, after working hours, he spoke about the 'Union
to other workers in the parking lot.' He stood in front of
the facility before clock-in time,. and distributed an-
nouncements of forthcoming union :meetings to other em-
ployees. He attended three union meetings at the union
hall, including the last meeting, which was attended by a
total of three active employees.75 Because he attended
72 The record fails to show who drove that route between Bell's
Thursday, January 27, suspension and Monday, February 7
73 All three ' lived on the same street, and two of them (Clough and
Hammon) had the same address Effective the week ending February 20,
the third, Thompson, was dropped from the run sheets
74 For example, some clients had a habit of getting up and grabbing
the driver while he was'driving ', ,
75 Because of military obligations in the reserves , he was unable to
attend some of the union meetings
657
this last meeting, he was unable to attend the last pree-
lection company meeting, held at the same time, at
which the Company urged employees to' reject the
Union and for which the Company kept an attendance
record.
As previously noted, on November 17, 1982, Williams
fastened to his hat (which was his personal property, and
was not part of the company uniform) a button which
said "committee" and which he had obtained at the
union' hall Thereafter, Supervisor Wearing said that the
Company did not want Williams to wear the button, be-
cause Corban knew it had been handed out at the union
meeting Williams attended and knew that the button
showed that Williams supported the Union. Robert
Corban said that he knew Williams had attended a union
meeting and had received the button there, said that
Corban could fire Williams for wearing "that button
there, like that"; and, when Williams continued to wear
the button for the expressed reason that he.supported the
Union, told Williams, "you can go on to • hell and . .
continue wearing the button, but when this is all over
with, I can bring you up on charges." About mid-De-
cember 1982, Corban accused Williams of interrupting
other drivers' work to talk about the Union and asked
exactly how he felt about the Union; Williams replied
that he had a right to want. the Union- in there, had been,
speaking for the Union when neither he nor the other
drivers were expected to be actively working, and in-
tended to continue this practice About a week later,
Robert Corban told Williams, in Violet Corban's pres-
ence, that "if you continue on with this Union . . it
will result in violence and some of your fellow workers
will lose their jobs." Also, Corban again asked Williams
how he felt about the Union. When Williams responded
by criticizing the Company's insurance plan and the con-
dition of the Company's vehicles, - Corban said that he
would try to improve matters, but "his hands were tied
because he was involved with the Union." -
About. the same day, Rona Schwartz sat down beside
Williams, told him that the Company was "broke" and
needed the employees' support, and said that "by trying
to help organize the Union there, that it would result in
violence and arrest and a lot of people would lose their
jobs." Then, she asked Williams how he felt about the
Union. Williams said that he supported it. Rona
Schwartz said that it seemed as if she was not getting
anywhere with him, that she knew ,he was a, union man
who was going to vote for the Union, and that he could
leave. On the following day,. Robert Corban said that he
had heard that Williams had beeh discussing theI Union
with Rona Schwartz, and-that Williams should not have
been so, hard on her.76 .
15 My findings in this paragraph are based on Williams' testimony For
demeanor reasons, and because of the indirect corroboration supplied by
Robert, Corban's failure to deny making the observation Williams attrib-
uted to him, I do not credit Rona Schwartz' denial that she had any con-
versation with Williams about the Union The -complaint-does not allege
her remarks to be unlawful
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) The spring 1982 oil-pumping incident
About March or April 1982, before, the union cam-
paign began, Williams reported to his.then immediate-su-
pervisor Wearing that Williams' vehicle needed a quart
of oil. Wearing told Williams to see the mechanic, be-
cause the mechanic was authorized to give him the oil.
The mechanic, who was busy and whose hands were
greasy, toldWilliams that he had permission to pump the
oil into the container himself. ,As Williams was doing so,
Wearing came out of the office and told Williams that he
was not supposed to be there. Williams said that the, me-
chanic had told Williams to pump the oil The mechanic
verified this to Wearing. Wearing told Williams to see
him after Williams had finished his run.77
Williams credibly testified- that that evening, he, Wear-
ing, and Robert Coi'ban conferred about the matter. Ac-
cording to Williams' credible testimony, the mechanic
explained to Robert Corban that Williams had done what
the mechanic had told him to do. Neither Wearing nor
Robert Corban was asked about this conference; nor did
Williams testify that Violet Corban was present. Violet
Corban testified that on a date which she was not asked
to give, she conferred about the matter with the mechan-
ic, .Wearing, and Williams. She did not testify that
Robert Corban was present; and neither he,- Wearing,
nor Williams was asked about a conference including
Violet Corban about the oil-pumping incident. She testi-
fied that during this alleged conference, she- told Wil-
liams that " it was procedure" for him to ask someone
else to get his oil, and that Williams."was very-coopera-
tive on her part"; but that in her opinion, Williams and
Wearing displayed hostility to each other and she asked
them to "please keep it cool" and attend to their own'
jobs. For demeanor reasons and in the absence of cor-
roboration, I am inclined to reject her testimony that this
conference took place. In any event, she did not give
any oral testimony that Williams received an oral warn-
ing on this occasion. Her notation in Williams' personnel
file about this incident states, "about going into, the parts
room. Warning (verbal) given",to Williams; and does not
include the mechanic's name in the list of those present.
As discussed infra, this notation was not prepared until at
least November 3, 1982, more than 7 months later and
about 3 weeks after Williams' overt union activity began.
(3) Williams' November 1982 suspension
On November 3, 1982, Williams was assigned to drive
a vehicle with an inoperative radio: When employees
were assigned such vehicles, they were expected to com-
municate with "base" by using pay telephones. On earli-
er occasions -(including the 'preceding day) when Wil-
liams had used pay telephones for this reason, at the end
of his shift he had orally advised his supervisor how
much Williams had spent to make these calls, and had
07 My findings in this paragraph are based on Williams' testimony
Wearing testified for the Company, but was not asked about this incident
Violet Corban' testified that Wearing had asked Williams 'not to walk
through the garage and parts room and get his own oil There is no evi-
dence, or other. reason to suppose, that she was present during this Wil-
liams-Wearing conversation . I infer that she based this testimony on re-
ports to her from others '
been reimbursed for the claimed amount upon signing a
receipt therefor On. November 3, when- Williams came
off his run, he told Supervisor Renzulli, who was then
the ambulance or "M.T" manager, that Williams had
spent a specified amount. (Williams testified that it was
between $3.50 and $4.30) for telephone calls because his
radio was not working, and asked Renzulli for reim-
bursement. Renzulli told Williams that it was "company
policy now" that he had to itemize all of his calls, 'and
write down whom he spoke to, when he spoke to. that
person, and where Williams was when he made the
call.78 Williams asked when this' policy took effect. Ren-
zulli said, "we just made it in effect today." Williams
said that he had never heard of the rule before, that
nobody had told him about it when he was conversing
over the telephone with the dispatcher and with. people
who answered the telephone, that Williams would have
made a contemporaneous record of his calls if he had
known about the new policy, but that he could not now
remember every location he called from and whom he
spoke to.79 Williams asked Renzulli to ask Violet Corban
to give Williams the money, "because I did make the
calls. I called in to get the work, that was assigned to
me." Renzulli credibly testified on direct examination
that Williams said "he was sick of the Company,-and all
the _aggravation that comes along with it, and . . he
went on a long string . There was nothing really in-
volved, he was just upset. I walked away, before any-
thing came about, and that was it."
Renzulli credibly testified on cross-examination that at
this point, he went into the Corbans' office and told
them what had happened.80 Violet Corban prepared and
signed ' a -notice to Williams dated November 31-1982,
which stated that he was being suspended for 3 days for
78 My finding about the nature of the document specified by Renzulli
is based on Williams' testimony Renzulli initially testified that he told
Williams to "list all the calls you made for the,day, and sign the
paper just list the calls you made for the day " Then, Renzulli testi-
fied that he told Robert Corban that Williams had "got mad that I asked
for a signature on a piece of paper'stating how many calls for the day "
Still later, Renzulli testified that he "informed [Williams] of the proce-
dures of writing the calls 'down for the day, and signing your name "
Renzulli's alleged contemporaneous "Incident Report" for Williams' per-
sonnel folder (see infra) states that Renzulli asked Williams "to write
down how many calls and sign the paper " Violet Corban testified that
"it was standard procedure to ask [employees ] to write down what day
[the claimed phone-call refund] was for and how much money they spent
each day, and dust list-put their names on the bottom of the paper "
Robert Corban - initially testified that "All [the employees] have to do is
give us a slip with how many telephone calls you made , and when you
made them " Later, he testified that the employees had to submit an
"itemized list" In view of these inconsistencies , and, for demeanor rea-
sons, I credit Williams.
99 The amount he requested would have paid for at least 35 short local
'calls However, on some occasions , he had to put more money into the
coin box while waiting to be connected with the dispatcher
80 He further testified , on cross-examination, that before Renzulli went
into the office, Williams "got very wild about the situation , he was very
wild He was cursing and everything ", and that Renzulli so advised the
Corbans Violet Corban testified that Renzulli told her that Williams
"became verbally abusive to Mr Renzulli, and used profanity at him " I
do not credit her or Renzulli 's testimony in these respects, for demeanor
reasons, because of Renzulli's prior credible testimony that Williams had
not behaved in this fashion , and because of Robert Corban 's failure to tes-
tify about Renzulli's report to the Corbans See also the discussion infra
r
ALERT MEDICAL TRANSPORT
'- "Using profanity to A. Renzulli when asked for a receipt
`for phone calls.".
Renzulli then left the Corbans' office and gave the
notice to Williams. Williams became angry, cursed at
Renzulli, and asked to see Violet Corban. Renzulli said
yes, and escorted him to the Corbans' office. Both Cor-
bans were present. Williams asked about his suspension.
Violet Corban said that he was being suspended for curs-
ing at Renzulli . Williams denied cursing at Renzulli, and
.said, "damn . . why am I going to.get three days off
for cursing? . . . I didn't say nothing to this man." She
said that "people out there" had said that Williams had
cursed Renzulli Williams said that he had 'not cursed,
Renzulli. She called Williams a "hothead," and told 'him
that he had 3 days off.81 Then, and while Renzulli was
still in the office, Williams asked for the "little bit of
money" which he had spent to obtain work 'assignments
from the Company by telephone. Robert Corban jumped
up, took from his own pocket the amount which Wil-
liams' had claimed, and gave it to him. Robert Corban
told Williams to take the money and the suspension, and
to get out of the office.82 When asked whether the Gen-
eral Counsel contended that this suspension violated' the
Act, she replied that "There's no allegation that the sus-
pension violated the Act, and I'm not trying to add that
to the complaint.,., 113
My finding' that Williams received his suspension
notice and then asked to go into the office is based on his
testimony. I do not credit Violet Corban's testimony that
only she and Williams were present when he was sus-
pended, and that she told him that he was suspended,'for
demeanor reasons, because her allegedly contemporane-
ous memorandum of the incident (see infra) names four
others (including Renzulli and Robert Corban) who were
allegedly present, because Renzulli testified that he and
Robert Corban were present, and because Robert Corban
was not asked about the matter. Because of this incon-
sistency between her memorandum and her testimony,
and for demeanor reasons, I do not accept her testimony.
that on the day Williams 'was suspended she told him to
try to control his "outbursts" over "every. procedure,"
Si My findings in this paragraph up to this point are based on Wil-
liams' testimony and credible parts of Violet Corban's and Renzulli's tes-
timony My reasons for rejecting certain portions of Violet Corban's and
Renzulli's testimony are discussed infra Robert Corban was not asked
about any of these events
82 My findings in these two sentences are based on Williams ' testimo-
ny, not contradicted by the Corbans For demeanor reasons, I do not
credit Renzulli's testimony that so far as he knew , Williams never re-
ceived the money
83 The General Counsel 's posthearing brief states (at 93, fn 69)
The November 3 suspension was not alleged as a separate viola-
tion of Section 8 (a)(3) However, the record evidence concerning the
suspension and circumstances surrounding it clearly establishes that it
was imposed because of Williams' union activities and should not be
used to support or justify the termination of Williams.
Because the complaint does not allege that Williams' suspension
was unlawful and at the hearing the General Counsel disclaimed any
such contention , I do not consider this issue However , as indicated
infra , I do consider whether the Company's file notations in connec-
tion with his suspension show that the Company was preparing to
use the alleged events which surrounded his suspension as part of a
pretext for any discharge or other disciplinary action which it might
choose to take His discharge is, of course , attacked in the complaint
I need not and do not determine whether the file notations ' were in
fact made as early as November 3
659
and accept his denials . For 'demeanor reasons, I do not
credit Renzulli's testimony that Williams ' was called into
the office and did -'not receive a suspension notice until
after the conversation there ; in this connection, I note
that Violet Corban testimonially contradicted Renzulli's
testimony that he was present when Williams was sus-
pended . I do not accept Renzulli 's testimony on cross-ex-
amination that Williams • cursed him and "was really
wild" when allegedly told that "they wanted to see him
in the office"; that during the meeting in the.office and
before Williams ' suspension , he threatened to fight Ren-
zulli; and that during the meeting and after Williams' sus-
pension ; he told Renzulli that Williams would "get" him.
I reject this testimony by Renzulli for demeanor reasons,
because the suspension . notice does not mention any
threats, because Violet Corban did not testify to any
threats and , did not testify that they had anything to do
with Williams' suspension , because Renzulli 's "Incident
Report" about the matter (allegedly prepared on Novem-
ber 5, 1982 ; see infra) does not refer to them ; and be-
cause Robert Corban was not asked about the matter.
Violet Corban testified that on or shortly after No-
vember 3, she prepared a document which states , in part:
4:30 p.m. 11/3
Meeting with A. Renzulli, R. Gross , V. Corban,
R. Corban , J. Wms . Gave 3 days suspension to J.
Wms.' for loud & profane language used in office re:
to phone call money.
Neither Violet Corban , Robert Corban , Renzulli, 'nor
Williams testified that ' Ruth Gross attended the Novem-
ber 3 meeting in the Corbans ' office . Violet Corban testi-
fied that Williams was suspended because Renzulli
"brought to - my attention" that Williams had been "ver-
bally abusive" and used profanity when asked to supply
a written statement in connection with his request for
telephone money . Violet Corban testified that an "Inci-
dent Report Form" was prepared by Personnel Manager
Ruth Gross, who-at the time of the hearing no longer
worked for the Company. Gross' alleged report states,
inter alia: •
John [Williams] came in and asked for phone
money that was owed to him . Anthony Renzulli
told him to put in [writing] the amount of money
that was owed to. him and he would receive it. John
at this point became very angry and, began to yell at
Anthony. Then he told him to keep his [obscenity]
money. The problem was then turned over to Mrs.
Corban. , - -
There is no testimony that Gross was present during any
of the alleged events described in this report. The report
is undated , but states that it is describing events which
occurred at 4:30 p.m. on November 4, the day after the
date on ' the suspension notice given to Williams.
Renzulli testified that he prepared a report about the
telephone money incident the morning after it-occurred.
The report is dated November 5 and states that the inci-
dent occurred on' November 4. As previously noted, the
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suspension notice given to Williams establishes that the
incident occurred on November 3
Violet Corban testified that at the same-time that she
prepared the foregoing notation regarding the November
3 incident, she prepared notations regarding the oil-
pumping incident in March or April' 1982 (see supra sec.
II,B,4,b,(2)), and about another alleged incident as to
which there is not claimed to be any other record evi-
dence.84 Both of these notations assert that' Williams was
given "verbal"' warnings She testified that 'she prepared
them because she was being "pressured" by her husband,
Greenberg, and ' Albert Schwartz ' to keep ' accurate
records of "these meetings." - -
(4) Respondent's threat to discharge Williams for -
cooperating with the Board during the investigation
Williams served as the Union's observer at the Decem-
ber 30, 1982 election. About January 26, 1983, after the
'Union had filed its initial charges and its objections to
the' election, Williams and his work partner, Duane
Clark, went down to, the NLRB' s regional office. On the
following day, Williams gave the 'Board investigator's
business cards to other employees, and urged- them to tell
her about the events during the election campaign. That
same day, General Manager Wearing told Williams that
Wearing had heard that Williams was going down to the
Board to talk about "what went on during the election
and everything." Wearing went on to say that Williams
should "watch" himself because Robert Corban was out
to get Williams, and was going to try to, get Williams
fired.85 Also that same day, one of the dispatchers told
Williams that he and Clark were no longer partners and
Williams would be going out by-himself
%
(5) Williams' .discharge
On the morning of February 2, 1983, Williams was as-
signed to a vehicle he had not used for 3 or.4 days. On
an earlier occasion, whose date .Williams was not asked to
give, but no earlier than September 1982,_ he had been
given 3 quarts of oil-without question, on his representa-
tion to Renzulli that a vehicle needed oil.86 After check-
ing the. vehicle on February 2, Williams truthfully, re-
ported to Renzulli that Williams' vehicle needed 3 quarts
of oil. Renzulli gave Williams 3 quarts of oil. However,
after Williams had the cans in his arms, Renzulli said that
under a. "new' company policy," Williams could put in
only 1 quart of oil, and if he needed more than 1 quart
the mechanic would' have-to check the vehicle and put
in any additional= oil that was needed.87 Williams had
e* This second entry states, in its entirety "Meeting at 61st Street Day
time V Corban J Williams about him getting lost on Fn eve with
UCPA clients till 200 a in WARNING-VERBAL"
85 The complaint does not allege that this remark - constituted an unfair
labor practice , -
86 My finding as to 'the date is based on Renzulli 's testimony that he
became ambulance manager in September 1982 - - - -
87 This finding is based on Williams' testimony . 'Renzulli testified that
he told Williams , "anything over two quarts of oil, I have to get the me-
chanic to check your vehicle " Later, Renzulli testified that a driver had
to have a mechanic look at the vehicle if the driver wanted more than I
quart of oil' Renzulli testified that this rule was intended to make sure
that nothing was the matter with the: vehicle . Robert Corban testified
that for this reason , a dnver had to have a mechanic look at the vehicle
never before been told. about this rule. Williams returned
2 quarts of oil to Renzulli and turned away. While still
close enough to be overheard by Renzulli, Williams said
"damn." As he walked toward his vehicle, he muttered
to himself, in a tone of voice too low to be overheard.by
Renzulli where he was standing, "every time I turn
around some more [scatalogical noun] is going on. These
people they keep making changes, but they don't let
'nobody know what's going on until it happens."88
Williams then went to the mechanic, identified in the
'record only as "Henry"; said that the vehicle needed
more-than 1 quart of oil; said that Williams had been told
that a mechanic would have to put in the oil; and asked
Henry to come out and check it. The'two went out to
the vehicle together.
Meanwhile, Renzulli went into the office and spoke to
Violet Corban. Violet Corban testified that Renzulli said
.that he•had told Williams to wait around, because if he
needed, 3 quarts of oil there might be something the
matter with the vehicle, and that Williams had got "ex-
cited over that." Violet Corban went on to testify that
Renzulli complained that Williams had cursed at Renzulli
"again." Renzulli was not asked about this conversation
with Violet Corban.
At Violet Corban's request, Renzulli went out to fetch
Williams.89 When Renzulli' reached Williams, he was
if it needed more than 1 quart Wearing initially testified that Robert
Corban' told him that no dnver could get more than 2 quarts of oil with-
out first checking with the mechanic , but Wearing later testified that the
critical amount may have been 3 quarts, he attnbuted this rule to an
effort to "Prevent drivers from using oil for their own personal vehicles.
Violet Corban gave the same reason as Wearing for the existence of the
rule However,'-her notation on the back of the "Employee Status
Change Report" memorializing Williams' discharge states, "Policy is to
have a mechanic check any vehicle that needs more than I qt at one
time", and she told Williams that he could put in only one quart himself
Wearing testified that the rule was put into effect shortly after the garage
was moved to 61st Street in July or August 1982 Violet Corban testified
that the rule had been in effect since at least the beginning of November
1982, at which time Renzulli was already ambulance manager Renzulli
testified that he had been told about it in mid-January 1983 Robert
Corban testified that the rule had been put into effect about early January
1983 -
88 My findings about this Renzulli-Williams incident are based on Wil-
liams' testimony For demeanor , reasons, and because the Company did
not. offer into evidence Renzulli's written report to the. Company about
this incident , I credit Williams . In giving a somewhat different version of
this conversation , Renzulli testified that Williams "got all excited" and
"was cursing " Weanng's testimonial version of this conversation bears
somewhat more resemblance to Renzulli 's than to Williams' However,
Wearing initially placed this February 2 conversation as having occurred
before the December 30 election , he did not testify to any cursing by
Williams,other than the scatalogical expression testified to by Williams;
Wearing testified, that Renzulli said he was not permitted to give out that
many quarts of oil without the mechanic' s looking at the dip stick, but
Wearing 's incident report avers that Renzulli "gave [Williams] the qts.
but informed him that he would have to get a mechanic to check vehi-
cle", and Weanng 'i incident report about the matter indicates that he
himself did not hear all of the conversation "John Williams and Mr Ren-
zulli began a verbal discussion in which Mr Renzulls said John cursed
him" (emphasis added) In any event, Wearing testified that the kind of
conversation in which Williams and Renzulli engaged was something that
always happens at Alert You know, people go back and forth, and that
the incident was not unusual
e9 This finding is based on her testimony , in effect corroborated by
Williams For demeanor reasons, I reject Wearing 's testimony that it was
he who fetched Williams Renzulli was not asked about this matter
ALERT MEDICAL TRANSPORT
putting a quart of oil into the vehicle, and Henry was
standing there. Renzulli said that Violet Corban wanted
to see Williams. Then, Renzulli , Wearing, and Williams
went to the Corbans' office.90
When Williams entered the office behind Renzulli, the
Corbans and Wearing were there.91 Violet Corban said,
"What seems to be your problem now, Mr. Williams?
You don't seem to know that you can follow orders like
that." Williams asked what she meant by that. She said,
"Didn't Mr. Renzulli tell you that you were only author-
ized to put one quart of oil in?" Williams said yes, and
that he had in fact put only 1 quart of -oil in the vehicle.
She said, "Well, didn't you curse at Mr. Renzulli?" Wil-
liams said that he had not cursed at Renzulli, although
Williams had cursed as he - was walking away and Ren-
zulli might have heard Williams cursing to himself. She
said , "Why don't you seem to know that' you can follow
orders like anybody else?" Williams said that if she went
out into the yard, she could see that the mechanic was
putting the other 2 quarts of oil into the vehicle, and that
the mechanic would' verify that Williams had put in only
1 quart. She said, "Why don't you seem to know that
you can follow rules and regulations like that?" He said
that he could follow rules and regulations if he was told
about -them ahead of time-if, . for example, they were
posted on the bulletin board "like all the other union par-.
aphernalia that was around the building, and talking
against the Union and everything like that ."92 She said,
"Is that what it is? .. . You're thinking about the union
thing again." Williams said, "No, it's not that. It's the
way that you go about things here. You let people know
what's going on , when it happens. '. . . That's not right.
We're all grown men and women around here. . . . If
you want somebody to do things right and follow com-
pany policy, let them know. Post it like you post every-
thing else around here when you want things done:" She
told him that he- was fired and told him to get out.
During this' conversation, Robert Corban cursed at Wil-
liams , and both Corbans called him a "hothead."93 The
90 From the garage, the normal way of reaching the Corbans' office
would be to- enter an office shared by (inter alia) Wearing and Renzulli,
to proceed from that office to the dispatchers' office, to proceed from
that office to the middle office (used by Dolores Penn , among others),
and to proceed from that office to the Corbans ' office . An incident report
bearing at least the purported signature of "Dispatcher in training/Kevin
P Anderson," received in evidence under Fed R Evid 803(6), states,
inter alia, that on February 2 Williams "was called into the office along
with Mr Renzulli . Mr Williams made a remark, 'Are you starting that
[scatological expression ] again"' Anderson, who no longer works for the
Company, did not testify Williams and Renzulli were not asked about
this matter In any event, there is no evidence that this alleged remark
was made in the presence of or reported to the Corbans
81 My finding that Renzulli and Wearing were present during this dis-
charge interview is based on Williams ' and company witness Wearing's
testimony For demeanor reasons, and because company witnesses Robert
Corban and Renzulli were not asked about this matter , I do not accept
Violet Corban's testimony that only the Corbans and Williams were
present
92 Robert Corban testified that a notice about the new oil procedure
was "supposed to be posted ; and I assume it was " However, there is no
evidence that this was in - fact done Robert Corban admittedly did not
himself look at the bulletin board.
93 Except as otherwise indicated , my findings in this paragraph up to
this point are based on Williams ' testimony and credible parts of Violet
Corban's testimony . Wearing testified that on the day Williams was dis-
charged, Wearing prepared ' an incident report , which report states, in
661
Corbans, Renzulli, and Wearing had cursed ,at employ-
ees, and employees had cursed at them. Williams aside,
nobody was ever reprimanded merely for cursing. Two
other drivers had been discharged because of incidents
where they profanely refused to take emergency calls.
After Williams' discharge, and while he and the four
management representatives were still, in the Corbans'
office, Williams asked Renzulli, in a'nonbelligerent tone
of voice, to step outside.94 Renzulli said that he would.
Violet Corban jumped up, said that Renzulli "ain't going
nowhere with you," and told Williams to get out. Wil-
liams left the Corbans' office and, taking the normal em-
ployee route to the garage, walked through the other of-
fices and exited from the office suite by means of a door-
way between the office suite and the garage. Renzulli
started to follow Williams through the - doorway.95
Violet Corban walked in front of Renzulli; told Williams
that Renzulli was "not going out there" and "wasn't
going nowhere with" Williams; and closed the door
which separated Williams from her and Renzulli.96
An "Employee Status Report" prepared by Violet
Corban states that Williams had been discharged for "in-
subordination to manager Anthony -Renzulli. Prior prob-
lems of same nature on at least two [occasions], one with
Leonard Wearing, one with Anthony Renzulli." This
entry aside, the report contains no reference to cursing
by Williams. Violet Corban testified as follows:
Mr. Renzulli told me that, [Williams] got excited
over the statement that you have to wait for a me-
chanic. . . . And Mr. Renzulli also told me that
part, "Mr and Mrs. Corban talked to [Williams], and said he had been
suspended before for his temper-,and bad mouth Mrs. Corban then in-
formed him he was terminated " Wearing testified (contrary to Violet
Corban) that he was present during this conversation, but was not asked
about what was said Weanng's report aside, there is no evidence that
Williams' prior suspension was mentioned during this conversation For
demeanor reasons, I credit Williams ' denial that his prior suspension was
mentioned
94 As previously :ndicated, my findings about, who was present when
Williams made this request are based on credible parts of his and Wear-
ing's testimony Renzulli was not asked about this matter Williams credi-
bly testified that he wanted to ask Renzulli why he had made "such a big
deal" about Williams' statements to him For demeanor reasons, I do not
accept Wearing 's further testimony that after Williams was told that he
was terminated , Williams angrily said that he would "get" Renzulli, and
asked him to step outside Also for demeanor reasons, I reject Violet
Corban's wholly uncorroborated testimony that Williams left the Cor-
bans' office after being terminated and then returned to complain that she
had made up her mind before calling him into the office that he would be
discharged Also for demeanor reasons, I reject her testimony , inconsist-
ent as to Williams' location with both his and Wearing's testimony, that
Williams left the Corbans' office, then yelled at Renzulli that Williams
"would get him for-or something to the effect that wasn 't the end of
the situation ," and "invited" Renzulli "outside of the office off the Com-
pany's property to settle the situation " Further, because Wearing's inci-
dent report is unreliable as to other matters (see supra fn 93 ), I reject its
representation that Williams threatened to get Renzulli and said "I will
see you soon , come on out here I got some wrap [sic] for you," I see
you Wearing credibly testified that conversations like his version of this
Renzulli -Williams conversation were not unusual at the Company's facili-
ty
95 This finding is based on Violet Corban's testimony
96 My findings in this paragraph are based on Williams ' testimony and
credible parts of Violet Corban's testimony. Renzulli and Robert Corban
were not asked about this matter For demeanor reasons, I- reject Wear-
ing's uncorroborated testimony that while he and Williams were in the
Corbans' office Wearing told Renzulli not to go outside
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Williams cursed at him again. And came into
the office and [complained] to me about it. So, I
called Mr. Williams to ask him about the circum-
stances. And Mr. Williams was clearly excited. He
insisted that the Company was treating him like a
child. It seemed to me that he was taking a personal
defense at it. It was like, nobody else was asked to
do this before. And I explained-to him that wasn't
the circumstances. And going ' by the behavior of
Mr. Williams at the time, and the fact.that he had
been asked, to control his temper, his outburst on
several occasions before, it was my opinion that,
you never could be quite sure what Mr. Williams
would blow up over next. And I felt that he should
be terminated. ,
As to the "several occasions before" when Williams had
allegedly been asked to control his temper, Violet
Corban specified only the March or April oil-pumping
incident and the November 3 telephone money incident.
She testified ' that she knew him to be a strong .union sup-
porter, but that this-knowledge did not enter into her de.
cision to terminate him. .
Respondent's Exhibit 24 is a filled-in incident report
which bears at least the purported signature of employee,
Harry T. Johnson II, '.a dispatcher, and which was re-
ceived in evidence, over timely objection on hearsay and
relevancy grounds, under Fed.R. Evid. 803(6). The Gen-
eral Counsel's brief (at 53 fn. 56) contains a motion to
strike this exhibit on: relevancy -grounds alone. The
motion is denied. The document purports to describe,
inter alia , conduct and statements by Williams and Violet
Corban immediately after (and, as to. Williams, perhaps
immediately before) he left the Corbans' office after his
discharge interview. Evidence about these events is rele-
vant to assessing the credibility of,the testimony regard-
ing Williams' discharge interview. However, I attach no
,,weight to this document, particularly in view of its fail-
ure to specify where Johnson was at the time (see supra
fn. 90) and the document's ambiguous use of a critical
pronoun ("Williams walked out of Mr. Corban's office
demanding to speak to A. Renzulli outside. Mrs. Corban
had followed him out and stated that Mr. Renzulli would
not talk to him outside" (emphasis added)). Johnson was
still in the Company's employ at the time of the hearing,
but was not called as a witness.97 . '
97 The Company's posthearing brief contains no reference to R Exh.
23 for identification, purportedly an incident report signed by 'payroll
clerk Delores Penn about an incident involving Williams and Renzulli in
the dispatching area at 8 -am on February 2,1983 -(see supra in 90)' On
my rejection of this document as irrelevant , the Company asked for 'its
inclusion in the rejected-exhibit folder
C. Analysis and Conclusions -
1. Alleged postsettlement unfair labor practices
a. Alleged independent violations of Section 8(a)(1)
(1) Alleged unlawful conduct regarding union
insignia
The wearing of union insignia by employees in support
of a current union organizational campaign is protected
concerted activity -whose curtailment by an employer
violates Section 8(a)(1)' of the Act in the absence of spe-
cial circumstances. The " Board is charged with the duty
of determining, in the first instance, whether claimed
special circumstances outweigh the adverse impact on
employees' organizational rights of an employer's limita-
tion on the employee wearing of such insignia. Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945); NLRB v.
Permanent Label Corp., 657 F.2d 512, 517-5.18 (3d Cir.
1981), cert. denied 455 U.S. 940.(1982); Kendall Co, 267
NLRB 963, 965 (1983).
The Company's brief contends.;(at 39-40) that the
Company's restrictions on button wearing were justified
by the "special circumstances" that "It is important in
the Company's business, as part of the health care indus-
, try, for its employees to maintain a neat and professional
appearance. This contention is obviously irrelevant to
the Company's action in forbidding employees (such as
its mechanics) who have no contact with the public to
wear union buttons on their uniforms. Moreover, the
Board has held that even where: "special circumstances"
in the health-care industry warrant restrictions on the
wearing of union insignia on employee uniforms while
the employees are on the clock and are . performing
duties which call for contact with the public, such "spe-
cial circumstances" do not outweigh these employees'
statutory right to wear union insignia on their uniforms
while these employees are not on duty. Medical Center of
Beaver County, 266 NLRB 429 (1983); Mayrath Co., 132
NLRB 1628, 1630 fn 6 (1961), enfd in relevant part 319
F.2d 424 (7th Cir. 1963), relied on in Kendall, supra. Ac-
cordingly, the Company. violated Section 8(a)(1) when,
in other employees' presence, Robert Corban yanked
driver Criniti's button off his uniform 15- minutes before
Criniti clocked in, and threatened him with discharge, if
he ' wore the button again. Similarly, the existence of the
foregoing "special circumstances" which would justify a
ban on' wearing union . insignia while employee's are ac-
tively working in contact with the public would not jus-
tify a ban which on its face. unlawfully. extends beyond
such periods. Medical Center, supra. The'Company's uni-
formed employees who have. contact with the public
wear their uniforms to and from `work, during their
lunchbreaks, and while performing duties;at "base."98
Accordingly, the Company violated Section 8(a)(1)
when Robert Corban told Williams, without specifying
any limitation as to time, that Williams could, be fired for
wearing his union button or for, wearing it-on his uni-
98 The Company's written "operational procedures" require employees
to wear complete uniforms when reporting to work, and to assume re-
sponsibility for their care and maintenance. '
ALERT MEDICAL TRANSPORT -
form; when Robert Corban told driver Duane Clark, in
Violet Corban's presence, to.take his button off because
"Mr. Schwartz doesn't appreciate union buttons on his
uniforms;" when Supervisor Wearing told employee
Duane Clark that he could be fired for wearing a union
button on his uniform,99 when Supervisor Renzulli told
Clark to take the button off his uniform, without telling
him when he could wear the button; and when Robert
Corban told a group of employees, including Rachel
Bell, that they were not to wear.union buttons on their
uniforms, and would have to punch out if they did so.
The fact that Duane Clark continued to wear his button
does not render lawful the Company's instructions to
him to remove it on pain of possible discharge. Perma-
nent Label, supra, 657 F.2d at 517-518 (3d Cir. 1981),
enfg. 248 NLRB 118, 132 (1980). -
It is true that when driver Rachel Bell transferred her
button from her uniform to the outside of her handbag,
management said nothing further to her about the button.
On the other hand, the Company never specifically told
the employees generally that the Company imposed no
restrictions at all on the display of buttons on wearing
apparel or accessories which were not part of the com-
pany uniform. Furthermore, the evidence shows that the
Company's ban on the wearing of union insignia was' not
motivated solely by the "special circumstances" of a
need for employees "to maintain a neat and professional
appearance"; •but rather was largely (if indeed not entire-
ly) motivated by dislike of the Union. Thus, when
Robert Corban saw Criniti wearing a union button
before clocking in on November 17, Corban did not tell
Criniti that he could not wear the button while he had
contact with the public, or even simply ask him to
remove it. Rather, Corban yanked the .button off, and
told him, "we don't go for that [obscenity] here . .. if I
catch you wearing it again, you're out." Similarly, Bus
Supervisor Wearing- told Williams that the Company
"didn't want you wearing the button .. . because you're
saying you're in support of the Union." Corban told
Duane Clark that button wearing was being banned at
least partly because Mr. Schwartz didn't appreciate
union buttons on his uniforms." When Williams told
Corban that Williams had a right to wear a union button
on his hat, which was Williams' personal property,
Corban said, "You can go on to hell and keep wearing
the button, but when this is all over with, I can bung
you up on charges." Williams and Bell, who both dis-
played union buttons "on their own personal belongings
after being' forbidden to wear union buttons on their uni-
forms, were later discharged for union activity (see infra
sec. II,C,1; f-g). Moreover, the Company committed a
number of other unfair labor practices in an effort to
defeat the Union. Further pointing to the rejection of the
Company's "special 'circumstances" defense is the fact
that the Company never (so far as the record shows)
told employees that the button ban was due to a desire
that the employees "maintain a neat and professional ap-
pearance" -(see Mayrath, supra, 132 NLRB at 1630
(1961)); no witness testified that this was in fact the
99 The complaint does not allege violations based on Weanng's other
remarks about union buttons
663
reason; the buttons were inobtrusive and were meaning-,
less to the general public (see Pay 'N Save Corp. v.
NLRB, 641 F.2d 697, 700=702 (9th Cir. 1981)); and there
is no evidence that any member of the general public,
ever complained about or even mentioned them (see
Howard Johnson Motor Lodge, 261 NLRB 866,868
(1982)). Although Robert Corban testified in general
terms to an alleged company rule that "nothing is to be
worn on the company uniform," there is no evidence
that a "nothing at all" rule has ever been brought to the
employees' attention; there is no evidence that anyone
was ever told, before union buttons were distributed,
about any restriction on wearing insignia of any sort; and
the only evidence that employees were ever told that
any ban extended beyond union buttons is that the em-
ployees were told, during a mayoralty primary campaign
after the issuance of the instant complaint, not to wear
political buttons on their uniforms.
(2) Allegedly unlawful threats to Duane Clark;
allegedly unlawful restrictions on solicitation on
"company time"; allegedly unlawful restrictions on
contacts with union organizers
As previously found, about late September or early
October 1982, employee Duane Clark told Robert
Corban that an allegedly unjust reprimand was an exam-
ple of "why a lot of people were going for the Union."
Corban said that if the matter had been left up to Presi-
dent Schwartz, Clark would have been fired on the spot,
and that if Clark had been union-represented, in Corban's
opinion the Union would not have regarded that dis-
charge as unjustified. I disagree with the General Coun-
sel's contention that Corban's remarks constituted an im-
plied threat that the Union's advent might cause the
Company to punish employee infractions more severely.
Rather, I conclude that he was telling Clark that the
Union would have regarded Corban's reprimand, or even
more severe discipline, as justified by Clark's offense.
The complaint will be dismissed to the extent that it may
attack Corban's statement in this respect.
As previously found, shortly after the October 15
filing of the petition Robert Corban told Clark, a driver,
that President Schwartz had said Clark could be fired for
passing out union cards to other ambulance firms' em-
ployees on "company time." Further, Corban said that
company employees were not, to carry union literature in
company vehicles, or pass it-out to other employers' em-
ployees "while you are working on company time. . . .
I don't care what you do on your time, just don't do it
on my time.". Corban said that- he himself did not care
whether the Union got in or not because he would still
have his job. The record shows that from time to time
drivers for the Company and other ambulance compa-
nies, while on the. clock, are simply waiting with their
parked vehicles to pick up clients and are not expected
to be actively working. I find,that the foregoing prohibi-
• tion and discharge threats by Robert Corban violated
Section 8(a)(1) of the, Act. I so find because there is no
evidence that'the Company had ever previously forbid-
den drivers to carry any kind of literature in their cars,
or forbidden solicitation of or literature distribution to
664 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
anyone at any time or place for any purpose; because
there is no evidence that the other ambulance companies
had ever previously forbidden (or that the Company
thought they had .forbidden) their drivers to receive any
kinds of cards or literature anywhere from anyone at
times when such activity did not interfere with their
work; and because, in any event, Corban -failed to-make
it clear that-Clark could distribute,'union cards during pe-,
nods when neither he nor the recipients were expected
to be actively working, carry union literature in compa-
ny vehicles where its presence did not interfere with the
business use of the vehicle, and distribute such literature
during such periods and outside working areas. Our Way,
Inc., 268 NLRB 394 (1983); Olympia Plastics Corp., 266
NLRB 519, 531 (1983).
For rather similar reasons, • I find that. the, Company
further violated the Act when Robert Corban told aide
Jardine, who before his clock- in time was talking to a
professional union organizer, not to talk to any union
representatives or organizers "on [Corban' s] time"; and
when the Company told the-employees in its December
4 letter not to talk to professional union organizers
"dunng working hours." There is no evidence that the
Company had ever previously forbidden conversations
with nonemployees -at any time about any subject; and,
in any event, it was not made clear that employees could
talk to union organizers during periods- when the em-
ployees were not expected to be actively working.100
-(3) Allegedly unlawful threats to withhold and
promises of benefits; allegedly unlawful threats to
withhold improvements in working conditions;
allegedly unlawful solicitation of grievances -
As previously found, on October 20 Rona Schwartz
told employee Jardine that the employees were supposed
to be getting raises, but that the Company could not give
out raises at that time because 'of "this union thing" and
because raises "could be construed as a bribe." Some
time "in November, - the Company told an assembled
group of employees that management had papers written
up on a general wage increase, but could not use them at
that time because the Union was about to step in and "it
would seem probably like a bribe." The Company con-
tends that these statements were not unlawful because
Rona Schwartz-told employee Bell between December 6
and- Christmas that the Company- would be getting a
raise at Christmastime, and because the Company alleg-
edly "granted its normal year-end increase"•(Br. 52).101
However; management 's remarks about a raise made 7
weeks or more- before' its unequivocal announcement
would imply, at the very least, that the raise-was delayed
100 Although the Company could lawfully bar nonemployee organiz-
ers from company premises, much of the drivers ' and aides ' work was
performed elsewhere -
101 Employee Duane Clark testified that the Company announced a
30-cent increase He did not recall the date of this announcement, but I
infer from Rona Schwartz' remarks to Bell that the increase was an-
nounced between December 6 and Christmas Withdrawn portions of a
union objection to the election allege a 30-cent wage increase to all em-
ployees inconsistent with prior practice and -within 2 weeks prior to the
December 30 election The record contains no other evidence as to the
date when the increase was *announced , or as to whether yearend in-
creases were normal
because , of the union campaign; indeed, the fact that
management eventually granted a raise before the elec-
tion might well lead the employees to suspect that appre-
hension of being thought to give a "bribe" had little or
nothing to 'do with the delay. Moreover, employee
Duane Clark (the only witness who testified about the
November meeting) was not sure whether the raise re-
ferred to at 'the meeting was the raise which other evi-
dence (supra fn. 101) shows was not announced until at
least a week later. Whether or not'the Company did in
fact eventually revert to a pre-petition decision regarding
wages, the Company violated Section 8(a)(1) by making
the:. foregoing statements about the effect on its decision
of the Union 's advent. Champion Road Machinery , 264
NLRB 927, 928-929 (1982); Cable. Vision, 249 NLRB
412, 414 (1980), enfd. 660 F.2d 1 (1st Cir. 1981).
These same cases call for the conclusion that the Com-
pany violated Section 8(a)(1) when Robert Corban told
employee Williams that the Company was going to try
to get,a better insurance plan, but could not do so imme-
diately _ "because my hands are tied because we're in-
volved in this union thing," and that the Company's in-
volvement in this union thing might interfere with Cor-
ban's -ability.. to remedy Williams' complaints about the
company vehicles he drove in the course of his work.
Corban's remarks-to Williams constituted a further viola-
tion of Section. 8(a)(1) because they implied that insur-
ance benefits would- be improved if, the Union was no
longer on the scene. .
I also agree with the General Counsel that the Compa-
ny violated Section 8(a)(1) when on October 20-1982,1982,
during an employee meeting scheduled by the Company
as part of its antiunion drive, the Company told the em-
ployees that it was thinking of improving their medical
insurance program - by adding prescription drug provi-
sions . Such a statement'for the purpose and with the rea-
sonable tendency to influence the election results was un-
lawful'even though it fell short of an unequivocal prom-
ise: St. Francis Federation of Nurses v. NLRB, 729 F.2d
844 (D.C Cir. 1984); ' Distribution Service West, 262
NLRB 764, 770-771 (Hixon) (1982). This announcement
aside, there is no evidence that the Company was:in fact
considering this improvement at that time. Moreover, on
the one prior occasion when the Company had improved
the health insurance program (the addition of dependent
coverage effective January 1982), the Company did not
(so far as the-record shows) mention the matter to the
employees until after the improvement had been actually
decided on in late 1981. -
I also agree with the General- Counsel that the Compa-
ny violated Section 8(a)(1) when Rona -Schwartz told
-employee Bell that if the employees did, not have a
union, the Company would try to improve working con-
ditions and -benefits and give them more working hours;
when for the purpose of inducing Bell to vote against the
'Union, Schwartz went on to say that she -would ask
about getting-Bell restored to-her•bowling run and trans-
ferred to the job of "M:T." driver; and when Schwartz,
after stating that the employees did not need a union and
were, already receiving some of the benefits the Union
was offering, told Bell that the employees could speak
ALERT MEDICAL TRANSPORT
individually or as a group to management about their
grievances and management would try to settle those
grievances and effect improvements. Electric Hose &
Rubber Co., 267 NLRB 488, 489 (1983); Permanent
Label, supra, 248 NLRB at 130-131 (1980), enfd. 657
F 2d 512 (3d Cir. 1981); •L'Ermitage Hotel, 268 NLRB
744, 747 (1984). Because Rona Schwartz' comments
about benefits were expressly conditioned on the em-
ployees' rejection of the Union or were attached to as-
sertions that no union was needed, such comments were
not rendered lawful by her testimony that she "always"
told employees that she. would try to get an-answer to
their questions or problems. Although Rona Schwartz
had no power to grant such benefits, the Company's
answer admits that she was the Company's agent for the
purpose of making such remarks about them, and it
would be reasonable for Bell to suppose that Company
President Albert Schwartz and board of directors
member Estelle Schwartz would be more receptive to
their daughter's pleas on Bell's behalf than to Bell's pleas
alone. Further, I agree that the Company violated Sec-
tion 8(a)(1) when Rona Schwartz, a few days after em-
ployee Duane Clark had told her that he opposed the
Union, indicated a possible reward for such sentiments
by saying, "I think I know how you're going to vote in
the Union; I can possibly do something" about obtaining
regular transportation for him from work to his home.
However, I conclude that the Company did not vio-
late the Act by its remarks to its assembled employees
about the Company's existing pension plan. The Compa-
ny's action inaccurately describing to the employees the
pension plan already in existence was not rendered un-
lawful by the Company's prior failure to make a system-
atic effort to tell employees about it. Precision Clutch; 218
NLRB 306, 308-309 (1975); Fidelity Telephone Co., 236
NLRB 166 (1978); Emory Convalescent Home, 260 NLRB
540, 553 (1982); Kingsboro Medical Group, 270 NLRB 962
(1984).
(4) Alleged impression of surveillance
As previously found, when employee Williams came
to work wearing the "committee" button he had ob-
tained at the November 16 , , union meeting, Robert
Corban told Williams that Corban knew he had obtained
the button.from the union hall because "I knew you at--
tended the meeting down there." In response to Wil-
liams' inquiry about how Corban knew the button was a
union button, Corban said, "people told me exactly-be-
cause I heard exactly,what was going on down.there,"
and added credence to this assertion by giving Williams
an almost word for word account of what had been said
at the union meeting where the buttons had been distrib-
uted. I agree with the General Counsel that the Compa-
ny thereby gave Williams the impression that the Com-
pany was engaging in.surveillance over union meetings,
in violation of Section.- 8(a)(1) of the Act. Firmat Mfg.
Corp., 255 NLRB 1213, 1218-19 (1981), enfd. 681 F.2d
807 (3d Cir. 1982); Midwest Electric Mfg., 260 NLRB
174, 175-176 (1982); A.A.. Superior Ambulance Service, 263
NLRB 499, 506, 512 (1982).
665
(5) Interrogation
I further find- that the Company violated Section
8(a)(1) when in Robert Corban's presence Violet Corban
asked employee Criniti whether he knew anything about
a union, who was forming it or was trying to get one in,
and the names of the people involved; when Robert
Corban asked Duane Clark, after Clark had remarked
that "a lot of people were going for the Union" because
of unjust reprimands, if he supported the Union; when
Robert Corban asked employee Williams about Decem-
ber 23, 1982, how he felt about the Union, and when
Rona Schwartz asked Clark whether he was for the
Union. In so finding, I rely on the Company's openly ex-
pressed opposition to the Union; the Company' s commis-
sion of other unfair labor practices to procure the
Union's defeat; the fact that the Company was thereby
seeking information useful for discrimination; the fact
that Criniti, Williams, and others were discharged for
union activity; the fact that Robert Corban was in active
charge of the entire operation; the fact that Robert Cor-
ban's interrogation of Williams was "accompanied by
statements that continued union activity would result in
arrests, violence, and loss of jobs and the unlawful state-
ment that the Union was causing the Company to with-
hold action beneficial to employees; the absence of evi-
dence that Criniti was called into the Corbans' office for
any purpose other than being interrogated about the
Union; the fact that on an earlier occasion Robert
Corban had unlawfully yanked off Cnniti's union button
and threatened him with discharge if he wore it again;
the absence of assurance that the interrogated employee
would not be punished for giving an unwelcome answer
and did not have to reply; Cnniti's effort to conceal his
union activities; Violet Corban's persistence in question-
ing him ; and the absence of any claim or evidence that
any of these inquiries had `a - legitimate purpose. See
Bourne v. NLRB, 332 F.2d 47 (2d Cir 1948); Graham'_Ar-
chitectural Products v. NLRB, 697 F.2d 534, 537-540 - (3d
Cir. 1983); Blue Flash Express, 109 NLRB 591, 593-595
(1954); all relied on in Rossmore House, 269 NLRB 1176
(1984)
However, I find no statutory violation in Robert Cor-
ban's questioning of employee Conners regarding his
membership in a-'steering committee"; the evidence re-
garding the content and circumstances of this conversa-
tion is insufficient to show whether Corban's inquiry had
a coercive tendency. '+
(6) The rescheduling of the company meeting
The record shows that after the Union began to dis-
tribute outside the garage facilities the announcements of
a'union meeting at 7 p.m. on December 28, the Company
changed its posted notice of a company meeting on De-
cember 29 to announce a meeting at 7:30 p.m. on De-
cember 28. The Company has never offered any explana-
tion for its action in thus 'changing the notice of the
meeting, which 'the notice said employees were "re-
quired" to attend, and, which was admittedly intended at
all times as affording the opportunity to urge a vote
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the Union.102 I conclude that the Company re-
scheduled its meeting, which employees were paid to
attend, in order to prevent them from attending the
union meeting scheduled a'half-hour earlier on the same
day. I find that by rescheduling its meeting - for this
reason, the Company violated Section 8(a)(1) of the Act.
Beverage-Air Co., 164 NLRB 1127, 1150 (1967), enfd. in
relevant part 402 F.2d 411, 419 (4th Cir. 1968).
(7) Other unfair labor practice allegations
Paragraphs 16(b)(i), I6(f)(iv), and 17(a) of the com-
plaint in its final form allege that Robert Corban created
the impression about early October 1982 that employees'
union activities were under surveillance by telling an em-
ployee that he and another employee were members of a
union organizing committee; attempted to intimidate an
employee -about late December 1982 by stating that the
Company knew he would vote for the Union; and about
October 3, '1982,-.implied a threat of unspecified reprisals
by informing employees` that they would be unsuccessful
in obtaining union representation. Because I can-find no
record evidence supporting any of these allegations
about Robert Corban's conduct, they will be dismissed.
b. Alleged 8(a)(1) and (3) violations involving Jardine
` before his termination
As discussed infra section II,B,3,d, Jardine was one of
the Union's earliest and openly most active supporters.
The record shows • that immediately after a meeting
which the Company conducted as part of its antiunion
campaign and. where employee benefits were discussed,
Rona Schwartz approached Jardine, Harvey Mitchell,
and Gland, who seemed to be displaying some uncertain-
ty, and offered to try to "straighten matters out." Jardine
said that he wanted a booklet (which a number of em-
ployees had failed to receive) describing the Company's
health insurance plan and was unable to complete in 6
hours a run for which he and Mitchell were paid for
only 6 hours without getting their timecards signed in
advance. Shortly thereafter , arrangements were made for
Jardine and Mitchell to be routinely paid for the actual
time they spent on their run, and Jardine received an in-
surance book.
McCusker, who represents the company from which
Respondent purchased its group insurance program, testi-
fied, in effect, that the 1983 program differed from the
1982 program only in that prescription drug coverage
was added. I infer that the insurance book received by
Jardine, which is not in evidence, was substantially the
same as an insurance book which is it evidence and
which describes the 1983 insurance plan. This book not
only tells the employee what the plan covers, but- also
tells him to "promptly" tell the Company about "any
event . . . that could effect your dependents' eligibility
for coverage," such as marriage or birth of a child. ("a
102 It seems appropriate to point out that the Company has never con-
tended that it posted a notice of a meeting to be held on December 29
and then changed the date because the Company did not wish to invali-
date the December 30 election under Peerless Plywood, supra, 107 NLRB
427 (1953) Rather, the Company contends that the meeting was never
scheduled for December 29
delay could result in not having coverage-to which you
would otherwise be entitled"), and to submit claims
"promptly" ("We have the right to reject claims submit-
ted more than 180 days after the loss"), specifies when
coverage ends and conversion rights; requires that con-
tinued coverage for certain handicapped children be ap-
plied for within 120 days after they become 18; and tells
the, employee to save his bills and receipts for medical
expenses and where to obtain•a claim form for such ex-
penses . The material actually being distributed to newly
hired employees erroneously stated that dependent cov-
erage was not being provided at all. I infer that as a
practical matter, whether an employee and his depend-
ents received everything they were entitled to under the
plan effective in 1982 might depend on whether the em-
ployee received an insurance book telling him what they
were entitled to and when and how -to claim it. Further,
from the context in which Rona Schwartz invited Jar-
dine's complaints, I infer that the Company gave him the
book, and relieved him of the requirement to have his
timecards signed before performing overtime work, to
discourage him from union activity, in violation of Sec-
tion 8 (a)(1) and (3) of the Act.
c. Alleged unlawful grant of turkeys
The evidence shows that the Company disliked the
Union and, shortly before the December 30 election,
gave each of its employees a turkey which cost a little
over $6. Notwithstanding the presumption that gifts so
timed were unlawfully motivated i o 3 and the Company's
demonstrated- willingness to engage in unfair labor prac-
tices to ,bring about the Union's defeat, I might perhaps
have accepted a simple contention that the Company dis-
tributed these turkeys because it was Christmas. Howev-
er, Secretary-Treasurer Greenberg testified that the tur-
keys were given out because "we had given out in the
past. several years something at Christmas time to our
employees." Further, Respondent's brief asserts (p. 57)
that the turkeys were given "as a Christmas time gift
. . . . Given the historic practice of giving employee
gifts at Christmas time, it would have been a violation of
the Act, in the face of a union organizing effort, for [the
Company] to have done anything Jess fo'r Christmas
1982. [The Company] had no choice but to follow its es-
tabished past practice." However, credible evidence pro-
ceeding largely from Company Executive Director
'Robert Corban shows that these claims of past practices
are not true, that no Christmas presents were given for
Christmas 1981, and that (so far-as the record shows) the
only Christmas presents ever-previously given were for
Christmas 1980. When considered in the light of the
Company's other unfair labor practices, the falsity of the
Company's tendered explanation for giving' the turkeys
-leads me to infer that they were given for the purpose of
inducing the employees to vote against the Union, in vio-
lation of Section 8(a)(1) and (3) of the Act. See NLRB v.
Shattuck Denn Mining Corp., 362 F.2d 466, 470 (9th Cir.
1966). -Of course, this conclusion does. not necessarily
• 103 St. Francis Federation , supra, Stanley Smith Security, 270 NLRB 225
(1984)
ALERT MEDICAL TRANSPORT '667
mean that the matter constituted a mandatory subject of
collective-bargaining within the meaning of Section 9(c).
See Benchmark Industries , 270 NLRB 22 (1984 ), First
National Maintenance Corp. v. NLRB, 452 U.S. 672, 682
(1981).
d. Allegedly unlawful termination of the aides
I agree with the General Counsel that the evidence
preponderantly shows that the Company discontinued
the "aide" position in order to provide a pretext for the
termination of a group of employees all but one of whom
had signed union cards, in violation of Section 8(a)(1)
and (3) of the Act. The evidence clearly establishes the
Company' s eagerness to bung about the Union's defeat
in the election petitioned for 2 weeks before the termina-
tions. Further, the record shows the Company's willing-
ness to achieve this result by means of unfair labor prac-
tices, including the unlawful discharge (after the 'aides'
termination) of three individual union adherents. In addi-
tion , because the employees' personnel files- showed
whether or not they had had drivers' licenses when they
were hired, the Company could readily ascertain the
identity of the aides who would probably lose their jobs
if licenses were required. Moreover; the record shows
the Company's awareness that most of the aides were
union adherents. Thus, in early October, Robert Corban
saw Jardine talking to a union organizer before clocking
in, revealed as to his name more knowledge than Jardine
had, and told Jardine not to talk-to union representatives
on Corban's time. About the same time, Company Secre-
tary-Treasurer Greenberg asked another employee
whether a book in Jardine's back-pocket had anything to
do with the Union. Robert Corban was admittedly ad-
vised by Rona Schwartz, at the time the October 15- peti-
tion was filed, that Jardine was part of a committee that
wanted to negotiate with the Company. Robert Corban
and Leonard' Wearing observed aides Jardine, Frazier,
and Cummings distributing union cards outside the facili-
ty. All the aides except six (exceptions who included
Cummings) attended union meetings, about which meet-
ings Robert Corban showed himself well informed when
he told employee Williams as to the November 16 meet-
ing (which, however, was held after the aides '. termina-
tion) that Corban 'had "heard exactly what was-going on
down there" and then gave an almost word for word ac-
count of what had been said there. Indeed, the record
shows that the preceding April, Robert Corban kept
union headquarters under surveillance to ascertain the at-
tendance at a union ,meeting that night. The Company's
interest in the identity of `union adherents is further
shown by Violet Corban's admitted " assigned task" of
preparing a list of who favored the Union and who did
not, and by management 's questions to employees about
this matter; I infer that management found out what they.
were thus assiduously looking for. NLRB v. Dove Coal
Co., 369 F.2d 849, 851 (4th Cir 1966). Indeed, manage-
ment witnesses did not. deny knowing that most of the
aides were union supporters. 104
104 Whether the Company knew about the union sympathies of all of
them does not affect the result in this case See the cases cited infra fn.
106
The Company contends ,that the aide classification was
eliminated because of the change in the DPW regula-
tions. However, the- Company's witnesses gave conflict-
ing testimony about'-when this decision was reached,
who participated in it , how long it was discussed, and
what efforts were made to transfer aides to the driver II
classification created when the ' aide classification was
abolished. Company Secretary-Treasurer Greenberg was
the only witness who undisputedly participated in the de-
cision to eliminate the aides' position. As previously
noted, he testified, in effect, that he first saw the new
DPW regulation no earlier than'October 28, and that the
aide classification was eliminated "when this new regula-
tion was shown to us by our attorneys, whereby an aide
was not, necessary." These' portions of Greenberg's testi-
mony are irreconcilable with Robert Corban's testimony
that the decision was made about October 15, and with
Wearing's testimony that it was no later than October 27
when he'heard about the decision. Further, Greenberg's
testimony that the decision was made no earlier than Oc-
tober 28 is difficult. to square with Greenberg's, Robert
Corban's, and Wearing's testimony that before the termi-
nations (which undisputedly occurred on October 29), at
least some efforts were made to -ascertain whether aides
had drivers' licenses. Moreover, in contending that the
decision was motivated by the change in DPW regula-
tions , the Company fails to explain why that decision
was not made 'until several weeks after company counsel
received 'on September 21 a copy of the allegedly rele-
vant change-although (according to Greenberg) the de-
cision was made after the Union filed its October 14 rep-
resentation petition.105 This unexplained delay, Robert
Corban's testimony (without reference to DPW regula-
• -tions) that the Company used aides ,to maintain order and
safety while the drivers were driving, Greenberg's testi-
mony that aides ` improved safety, and the evidence that
the Company continued to use two employees on at-least
a . significant portion of 'the vehicles in the bus division,
lend credence to the General Counsel's contention that
the Company used aides for its own safety reasons rather
than because of DPW regulations, and that the Company
'did not really believe that the change in DPW regula-
tions affected DPW staffing requirements in its bus divi-
sion . Finally, although the Company's need for drivers
was admittedly greater than the supply; newly hired
drivers had to learn the routes with which aides were al-
ready familiar; and the Company suspended (rather than
discharging) until the presentation of a valid driver's li-
dense two drivers who had-no current valid license; the
Company neither inquired whether any of the laid-off
aides had obtained a license after being hired, nor gave
them in-their layoff slips any reason to suppose that they
would be retained or put on a preferential hiring list if
they obtained a license, nor 'orally so advised any of
them-including Jardine, who the Company knew was
io5 The Company's postheanng brief (at 30) implies that the delay was
due to the fact that the October 28 telegram allegedly "avoided the
danger of competition from providers who were not PUC-regulated " No
company witness so testified In any event, it seems unlikely that fear of
competition from unregulated providers would lead to a delay in taking
action for the ostensible purpose of saving labor costs
668 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able to drive , and whom it had urged to get a • driver's
license before he began his prominent union activity. In-
stead , the Company hired brand new employees as driv-
ers, and wholly forewent its preference for. drivers who,
-like the aides, had experience . with physically handi-
capped , mentally retarded , mentally disturbed , or elderly
people. .
For the foregoing reasons, I find - that the Company
abolished the aide classification in order to provide. a
pretext for the termination of 18 ; employees most of
whom (the Company knew ) were union supporters. Ac-
cordingly , the Company violated Section 8(a)(1) and-(3)
of the Act by laying' off all of these aides, including
those who were not and/or, were not suspected of being
union supporters, 'in order to rid itself of prounion em-
ployees. 106
e. Allegedly-unlawful discharge of Criniti
In addition , I find that Criniti was discharged because
of his union activity ., He signed a union card in mid-Oc-
tober, and attended union meetings at the union hall in
late October and in mid-November . Two weeks before
his last day of active employment , Robert Corban
yanked off Criniti 's uniform a union button which he
was wearing off company property before clock -in time,
and told him that he would be "out " if he wore it again.
About 4 days before his last day of active employment,
-Violet Corban , who had admittedly heard that Criniti
had attended a union meeting , called him into the office
and asked him whether he knew about a union . When he
untruthfully said no , she urged him to reveal the names
of those who had been trying to get the . Union in. At
this point, he let slip the fact that he had attended at
least one union meeting , but truthfully said that he did
not know the names of the others present . At the end of
that interview , she told him that he was doing a pretty
good job However , he was discharged less than a week
later, without being given any reason therefor This evi-
dence strongly points to the conclusion that Criniti was
'discharged for union activity.
The Company' s brief contends (at 9, 13) that Criniti's
discharge "was the culmination of a series of progressive
-disciplinary actions-counseling , written warning, and
three-day [November 24] suspension" and that he was
terminated , effective November 30, for "failure to imme-
diately report to the dispatcher an incident that resulted
in injury to a client ." However, counsel 's reliance on in-
cidents which occurred between mid -Octobei and No-
vember 24` is difficult to-, square with Violet --Corban's
'statement to Criniti about November 26 that he was
doing a pretty good ' job. Furthermore, Violet Corban's
testimony that she discharged Criniti for failing to report
to the Company an accident within a reasonable time not
only-disregards his explanation to management regarding
the malfunctioning radio (which her testimony shows
that - she knew about) and'Criniti 's not unusual problems
in obtaining an open telephone line, but also is difficult
'°6 MSP. Industries v. NLRB, 568 F2d 166, 176 (10th Cir. 1977);
NLRB Y. Ambrose Distributing Co , 358 F 2d 319, 320-321 (9th Ctr ." 1966),
cert . ,denied 385 US 838 ( 1966), O'Dovero Construction , 264 NLRB 751
(1982) -
to reconcile with the Company's treatment of employee
Lawrence Brown after he failed to prepare an incident
report about an accident similar to Criniti's some 6
weeks later. The Company not only failed to discipline
Brown, but also promoted him a month later. Accord-
ingly, I conclude that the real reason for Criniti's dis-
charge was his union activity'and, therefore, that his dis-
charge violated Section 8(a)(1) and (3) of the Act.
f. Allegedly unlawful suspension and termination of
Bell
In addition, I agree with the General Counsel'that em-
ployee Bell was suspended and discharged because of
her union activity, in violation of Section 8(a)(3) and (1)
of the Act. Bell's extensive union activity included distri-
bution of union literature with a union representative
before working hours and in management's presence, an
unsuccessful request to Robert Corban for, permission to
post "union papers," and wearing a union button on the
handbag which she carried to work. Rona Schwartz,
who admittedly knew about Bell's interest in the Union,
attempted to dissuade her by saying that Schwartz
would look into the reason why Bell was not assigned to
the jobs she wanted. During that conversation, I to 3
weeks before the election, when Schwartz suggested that
employees present their grievances to management di-
rectly,rather than through a union, Bell replied that she
did not think that would work.
Thereafter, effective January 26, 1983, the Company
reduced the four vans on the Co-Mhar run to three, a
number which had previously been insufficient to enable
all the-Co-Mhar clients to arrive on time; and directed
Bell to perform, in addition to her old Co-Mhar run, the
entire run which' had been handledby a driver (Calvin
Williams) who was transferred off the Co-Mhar service.
Although Bell told her supervisor. that she was unfamil-
iar with streets where she would have to pick up clients
at the 13 different locations specified on her newly added
run sheet, the Company did not follow its usual practice
of sending out with her, to teach her the new run, a
fellow driver who (like Calvin Williams) ' was familiar
with it: Instead, Williams was sent out after her to pick
up clients on her run list whom she did not pick up (but
he found out that she had in fact picked up all of them).
After Bell's suspension, the Company went back to using
Sour drivers to take clients to the Co-Mhar program, land
twice decreased the number of clients in the run which
had been transferred to Bell. I infer that the Company
gave Bell an extra and unfamiliar run, and directed Wil-
liams to ascertain whom she had failed to pick up instead
of directing him to accompany her in order to help her
complete her run fully and on time, in the hope and ex-
pectation that she would fail to pick up some clients
and/or deliver some clients late, and thereby provide the
Company with a pretext for discharging her for union
activity. The conclusion that she was really suspended
and discharged for her union activity gains some further
support from Violet Corban's alleged reliance on
Wright's incident report (R. Exh. 13), which twice at-
taches a January 18 date to a January 25 conversa-
ALERT MEDICAL TRANSPORT'
tion; 107 from the. unexplained discrepancy between
Violet Corban's February 2 representation to Bell that
no decision had yet been made about her discharge and
Violet Corban's statement on Bell's "Employee Status
Change Report" that she was discharged effective Feb-
ruary 1;. from the Company's failure to allege to -Bell
until her January 27, 1983 suspension interview that she
had been taken off the UCP run about December 10,
1982, for lateness; from Bell's failure to. receive any com-
plaints about her work between August 1982 (when she
explained to her supervisor that she had stopped at a gas
station, while clients were on her van, because it was
overheated) and the addition of Calvin Williams' run to
her work assignment effective January 26, 1983; from the
variances in the Company's explanations for her suspen-
sion and discharge; and from the Corbans' disingenuous
efforts to conceal their knowledge of her union activity.
g. Allegedly unlawful discharge of John Williams
Also, I find that John Williams was discharged for rea-
sons forbidden by the Act. The Company was aware of
and resented his,union activity. He signed a-union card
on .October ,12, 1982, successfully solicited cards from
others until October 15, urged others to support the
Union, and distributed announcements of union meetings;
some of this activity occurred outside the facility during
his -lunchbreak and before and after his shift. When he
wore a union .button on his hat in mid-November 1982,
Supervisor Wearing told him that the Company did not
want him to wear the button because it showed his union
support; and Robert Corban threatened to discharge him
or "bring, [him] up on charges" for wearing it. The fol-
lowing month, Williams told Robert Corban that Wil-
liams intended to continue to speak for the Union.to
other drivers when neither he nor the other drivers were
expected to be actively working. A few days later, Rona
Schwartz told Williams that trying to organize the Union
would "result in violence and arrest and a lot of people
would lose their jobs." When she then asked Williams
how he felt about the. Union, he said that he supported
it. About the same day, Robert Corban made similar re-
marks to Williams and went on to say that Williams was
a "militant" and a "hothead," did not seem to see things
Corban's way, and was "all for the Union."
Williams served as the Union's observer at the election
on December 30, 1982. As previously noted, the objec-
tions to the election and the initial 1983 charges were
filed on January 6, 1983. In late January .1983, the day
after Williams went down to the NLRB's Regional
Office, he gave the Board investigator's business cards to
other employees, and urged them to tell her about the
events during the election campaign. -General Manager
Wearing told Williams that Wearing had heard that Wil-
liams was going down to the Board to talk about "what'
went on during the election and everything." Wearing
went on to say that Williams should "watch" himself be-
cause Robert Corban was "out to get" him and was
going to try to get Williams fired.
107 The Company's brief (at 18) refers to this document without any
reference to the dates which it bears
669
Management had told Williams that he was a good
worker, and had asked him to train new drivers. Howev-
er, a•few days after being told -by Wearing that Robert
Corban wanted to fire Williams because of his coopera-
tion with Board investigators, he was called into the
Corbans', office, where Violet (who admittedly knew he
was a strong union supporter) discharged him in Robert's
presence: Although Violet Corban did not testify that
anyone told her that Williams had refused to follow
orders that day (nor is there any evidence that this in
fact occurred), she accused Williams of such conduct.
When he truthfully denied it, she accused him of cursing
at Renzulli. When Williams truthfully denied that too,
she again accused him of refusing to follow orders. Upon
Williams' remark that the Company should post compa-
ny rules in the same way it posted antiunion material, she
remarked, "You're thinking about the union' thing again,"
and -discharged him notwithstanding .his denial and his
assertion that "We're all grown men and women around _
here" and that company policies should 'be posted in
order to bring about employee compliance (cf. supra fn.
92).
Moreover, in tendering lawful reasons for Williams'
discharge, .the Company has relied on an incident about
10 months before Williams' discharge and several months
before the union campaign began, which Violet Corban
did not note in Williams' personnel file until at least 7
months after the incident occurred and at least 3 weeks
after Williams began his overt union activity by soliciting
signatures on union cards directly outside the garage fa-
cility. Further, Violet Corban admitted that she eventual-
ly made this notation '(as well as others) because she was
being "pressured" by her husband, Greenberg, and
Albert Schwartz to keep accurate records of "these'
meetings," and she, included in- her notation the false
statement that Williams had then received a "Warning
(verbal)," as well as an allegation of a "verbal" warning
in connection with another alleged incident about which
management gave no testimony whatever. In addition,
the Company relies on an incident which Renzulli gave
Williams, a written 3-day suspension notice dated No-
vember '3, 1982; but in an effort to support the Compa-
ny's version of -what happened, the Company produced
an incident report which Renzulli admittedly prepared
and which unexplainedly states that the incident oc-
curred on November 4. Also, in a further effort to
defend Williams' discharge, the Company produced an
incident report which (like Renzulli's report) incorrectly
states that the incident occurred on November 4 and,
moreover, bears the purported signature of Personnel
Manager Gross, who was not (so far as the testimony
shows) present during any of the events described there-
in. i 08 Further, even when taken together, these incidents
seem insufficiently serious to lead an employer to dis-
charge a good worker in a market where (according to
Robert Corban) the supply was,insufficient to meet the
108 Most of Gross' report purportedly describes the Williams-Renzulli
conversation on which the suspension notice was allegedly based Al-
though Violet Corban's notation of her November 3 meeting with Wil-
liams states that Gross was present, neither Violet Corban nor anyone
else so testified
670 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
demand. Briefly summarized, these incidents were as fol-
lows: (1) Wearing objected to .Williams' pumping his
own oil, although Wearing and Robert Corban knew-
that in Wearing's absence, the mechanic had told Wil-
liams to do this-. (2) Williams became upset, and com-
plained at some length to Renzulli, when he told Wil-
liams that because of a rule which had gone into effect
that very day and which Williams had never heard ' of
before, he could not obtain recompense for the money he
had used to telephone "base" for assignments until he
made a list,' for each of up to 43 telephone calls, 'of
whom and when Williams had called and where he was
when he called. (3) Concerning a rule about getting oil
for company vehicles, Williams became upset, audibly
cursed to himself, and complained about its nonposting
to management , where Williams had never before been
told about the'rule,. nobody had complied with Robert
Corban's order that it be.posted, and management repre-
sentatives disagreed among -themselves about how much
oil drivers could get without a mechanic's authority.
Accordingly, I conclude that Williams was discharged
because of his union activity and because he cooperated
with the Board in the investigation of unfair labor prac-
tice charges and objections to the election, in violation of
Section 8(a)(3), (4), and'(1) of the Act._Post l Service, 266
NLRB 467 (1983), Electric-Flex Co., 228 NLRB 847,
861-862 '(1977), enfd:' inrelevant part 570 F:2d .1327,
1332 (7th Cir. 1978); cert. denied 439 U.S. 911 (1978);,see
also NLRB v. Scrivener, 405 U.S. 117 (1972).
2. Alleged presettlement unfair-labor practices
a. Procedural:considerations
As previously noted, 'oii July 30, 1982, the Regional
Director approved` a settlement . agreement executed by
the Company and, by David Gelb, the Charging Party in
Case 4-CA-12912.'N6 unfair labor practices, can be
found based on conduct prior to this settlement agree-
ment unless there hasibeen a breach:of that agreement or
a subsequent related violation of-the Act.'Hatfield Truck-
ing, 270 NLRB 136,(1984); Interstate' Paper Supply Co.,'
251 NLRB 1423; 1424-25 'fn. 9 (1980). In the settlement
agreement, the Company undertook, inter alia, not to
question employees regarding their own or 'other em-
ployees' union sympathies and activities; not to create
the impression of surveillance over union meetings; and
not in any other manner to interfere with, restrain, or
coerce . employees in the exercise of' their Section 7
rights. I have found that the Company has breached the
foregoing provisions of the settlement agreement, in con-
nection with a renewed campaign `by the same, anion at
the same company facility 3 months after the alleged
presettlement unlawful conduct. I conclude that a finding
of such presettlement unfair' labor practices is not 'barred
by the settlement. agreement.
The alleged presettlement unfair labor practices all oc-
curred within 6 months prior, to or a few days after Gelb
filed the charge in Case 4-CA-12912. The Company
does not renew in its posthearing brief the contention at
the hearing that such unfair labor practice ' allegations are'
barred by, Section 10(b) of the Act. I find that they are
not so barred. See NLRB v. Fant Milling' Co., 360 U.S.
301 (1959). I note that the charge has never been with-
drawn;. that the settlement agreement provides for "no
further action" in the case, "Contingent upon compliance
with the terms and provisions hereof"; and that on Octo-
ber 20, 1982, the Regional Director, in closing the case
on compliance and before the 1983 filing of the addition-
al charges herein, advised company counsel that "the
closing is-conditioned upon continued observance of the
Settlement Agreement and does not preclude further
proceedings should subsequent violations occur."
b. Alleged independent violations of Section 8(a)(1)
I agree with the General Counsel that the Company
violated Section 8(a)(1) when Robert Corban told em-
ployees Whitaker and. Johnson on April 22, 1982, that
Company President" Schwartz- was willing to close the
business, change the name, move to another town, or do
whatever was necessary to keep from becoming union-
ized; when, on the same day Corban threatened to use
lateness as a pretext for discharging employee Gelb for
union activity and said that the Company would not ne-
gotiate with a union under any circumstances; when, on
the same,day, Corban and Wearing told employees that
the plant would be padlocked on Monday morning if
anyone attended the union meeting that evening; when
Corban, in so threatening Gelb, went on to say,that if
the Company were padlocked for that reason, Gelb
could be responsible for the unemployment of all .the
men and would probably suffer physical harm from them
for having them lose their jobs; when the Corbans en-
gaged in surveillance outside the union hall that evening
to ascertain who attended the union meeting; and when
on April 23 Robert Corban created the impression of
surveillance by telling employee Whitaker that Corban
had been. in front of the union hall and accurately de-
scribing the number of people who had * entered the
union hall.
In addition, I find that the Company violated Section
8(a)(1) when Robert Corban interrogated employee Pos-
tell on April 22 about his and Gelb's union activities;
when Corban asked employees Whitaker and Johnson on
that day whether they intended to go to the union meet-
ing, and asked Whitaker which employees intended to
go; and when Corban asked Whitaker, in late May 1982,
whether he had been in touch with the NLRB and what
he had told it. In so finding, I note that Corban followed
his interrogation of Postell by a threat to shut down the
operation if it were unionized; that Corban's questions to
Johnson and Whitaker about attendance at the union
meeting had been preceded by company threats to shut
down the operation if any employees attended, and were
followed by the Corbans' surveillance over the meeting
and Robert Corban's description of such surveillance to
Whitaker; that on the day of the meeting, the Company
changed the shift of Gelb, the employee who had ar-
ranged for and publicized it, because of his union activity
(see infra sec. II,C,2,c); that none of the interrogation
was accompanied by any assurances against reprisal; that
the Company has tendered no legitimate purpose there-
for; and that Corban was in active, charge of the entire
operation. See cases cited supra section II,C,I,a,(5).
ALERT MEDICAL TRANSPORT
However, I do not agree with the General Counsel
that Corban created the impression of surveillance by
telling Gelb that Corban knew Gelb's "party" invitations
were to a union meeting and by remarking to Postell that
Corban had heard Postell and his partner, Gelb, were
going to "get up a union " Because Postell was not, in
fact, an active participant in the union movement, Cor-
ban's remark to this effect tended, if anything, to lead
Postell to conclude that the Company had no firsthand
knowledge of the employees' union activities. Moreover,
the fact that Gelb had distributed about 80 "party" invi-
tations and a fellow employee had posted one on the bul-
letin board militated against any inference by Gelb that
the Company had learned of, their significance by illicit
snooping rather than by unsolicited reports from other
employees. The complaint will be dismissed to the extent
that it alleges that such remarks created the impression
of surveillance.
The General Counsel's brief contends that the Compa-
ny further violated the Act when Robert Corban told
employee Postell that the Union was not going to work
because "we had this before" and because the Company
did not have enough money to pay the men. The Gener-
al Counsel alleges that these statements unlawfully con-
veyed in employees "a sense of futility in selecting" a
bargaining representative. The brief does not refer to the
portion of the complaint within which this conduct alleg-
edly falls. The complaint allegation that about April 22,
1982, Corban unlawfully "informed an employee. that it
would be futile for the employees to select the Union as
their collective-bargaining representative because Re-
spondent. would not negotiate with the Union" (par.
10(a)(v)) is limited to a single employee and more 'aptly
describes Corban's statement to Gelb than Corban's
statement to Postell. I do not consider whether the latter
statement was unlawful.
c. Allegedly unlawful change in Gelb's shift'
I agree with the General Counsel that the Company
changed David Gelb's work schedule because of his
union activities. About noon on April 22, Robert Corban
stated that he believed "David's party" was part_ of an
attempt at union organization, and stated that the Com-
pany was willing to shut down, move, or do,"whatever
was necessary to keep • from being organized." At 2:30
p.m., Corban directed Gelb and his partner, Postell, to
return to "base." Corban showed Gelb one of the
"party" slips which Gelb had been distributing in order
to induce his fellow employees to attend the union meet-
ing that night. Corban threatened to discharge Gelb for
union activity on the , pretext of lateness, said that the
Company would not negotiate with a union under any
circumstances, and said that if anyone attended the union
meeting the Company would be padlocked and Gelb
would be responsible for the unemployment of all the
men. Immediately after that interview, Corban obtained
confirmation' from Gelb's partner, Postell, that Gelb was
indeed responsible for the union movement. Less than an
hour and a half later, Gelb was advised that, effective
the following day, he and Postell had been permanently
transferred to the 4 p.m.'to midnight shift from the 8
a.m. to 4 p.m. shift. During Gelb's conversation with
671
Corban earlier that day, Gelb had mentioned that he
would be taking college examinations the following
week,, and Gelb had previously given Corban a copy of
Gelb's college schedule at night school. The Company
has never tendered any reason for this change in Gelb's
schedule. I conclude that the Company effected this
change in order to interfere with his ability to pursue his
college education while remaining in the Company's
employ, as a means of punishing him for his union activi-
ty. Accordingly, the Company's change in Gelb's work
schedule violated Section 8(a)(1) and (3) of the Act.109
3. The objections to the election
It has been found that on various dates between the
filing of the petition and the election, the Company en-
gaged in unfair labor practices to bring about the Union's
defeat. Accordingly, and in view of my finding infra that
a bargaining order should issue, it will be recommended
that the election be set aside as requested in the Union's
timely objections, that the representation petition be dis-
missed, and that all prior proceedings thereunder be va-
cated. '
CONCLUSIONS OF LAW
1. The Company ' is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization , within the mean-
ing of the Act. -'
3. The following employees of the Company constitute
a unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act:
All station wagon drivers, van drivers,. bus driv-
ers, ambulance drivers, drivers 2, dispatchers, emer-
gency medical technicians, car washers, aides, serv-
_ice mechanics, light mechanics; night mechanics,
daytime mechanics, parts employees, and garage,
cleaning and building maintenance employees em-
ployed by Brocal Corp, d/b/a Alert Medical Trans-
port 'at its 50 Laurel Street, Philadelphia, Pennsyl-
vania facility, excluding office clerical employees,
guards 'and supervisors as defined in' the Act.
4. ,The Company has violated Section 8(a)(1) of the
Act by engaging in the following conduct: Removing a
union button from employee Criniti's uniform 15 minutes-
before lie clocked in, threatening him with discharge if
he wore 'it again; telling employee John Williams that he
could be fired for wearing a union button or for wearing
it on his uniform; telling employee Duane Clark that he
could be fired for wearing a union button on his uniform;
telling him 'to remove the button; forbidding employees
to wear' union buttons on their uniforms while they were
on the clock; forbidding employee Duane Clark to pass
out union 'cards to or. distribute union literature to em-
ployees of other employers off company premises and at
times when such activity would not interfere with em-
ployees' work; threatening him with discharge if he did
109 The complaint does not allege a violation with respect to the
change in Postell 's work schedule Cf the cases cited supra fn. 106
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so; forbidding employees to discuss the Union with pro-
fessional union organizers off company premises and at
times when such activity would not interfere with em-
ployees' work; telling employees that the Union's advent
had caused the Company to delay giving a wage in-
crease, was causing the Company to delay efforts to get
a better insurance plan, and might interfere with the
Company's ability to remedy complaints about vehicle
safety; implying to employee Williams that insurance
benefits would be improved if the Union-was no longer
on the scene, telling employees that the Company was
thinking of improving their medical insurance program;
telling employee Bell that if the employees did not have
a union , the Company-.would try to improve working
conditions and benefits and give them more working
hours; telling Bell that efforts would be made to give her
desired work assignments ; telling Bell that employees
could speak individually or as a group to-management
about their. grievances and management would try to
settle them and might effect some improvement; telling
employee Duane Clark that the Company would try _to
arrange for his transportation home; giving employees
Williams and Whitaker the impression of surveillance
over a union meeting ; interrogating • employees about
their own and others' union activity and about contacts
with the NLRB; rescheduling a company meeting in
order to interfere with employee attendance at a union
meeting ; threatening employees Whitaker "and ' Johnson
that the Company would close the business, change its
name , move to another,town, or do whatever was neces-
sary to keep from becoming 'unionized; threatening to
discharge employee Gelb for union activity; telling Gelb
that the Company would not negotiate with a union
under any circumstances; threatening employees that the
business would be shut down if employees attended a
union .meeting; telling Gelb that in that event, he would
be responsible for the employees': unemployment .and
would probably suffer physical harm from these men for
having them lose their jobs; threatening employee Postell
that the business would shut down if the Union got in,
and engaging in surveillance over a union meeting.
5. The Company has violated Section 8(a)(1) and (3) of
the Act by engaging in the following conduct:
a. Relieving employee, Phillip Jardine of the require-
ment to have his timecards signed before performing
paid overtime work,, and giving him an insurance book.
b. Terminating the following employees: Mack Ball,
Kevin Charity, Emanuel Criniti,.Robert Cummings, Pat-
rick Dumas, Irene Frazier, Thomas Freeman, Carla
Garner, Stephen,. Griffin, Phillip Jardine, Deborah Jen-
kins, Douglas Johnson, James Knight, Theresa Mason,
Stephanie Matthews, Joseph Middleton, Kimberly Ross,
Betty Twyman, and Gary Williams.
c. Suspending and terminating Rachel Bell.
d. Changing the work schedule of-David Gelb. -
e. Giving turkeys'to its employees in December 1982.
6. The Company has violated Section 8(a)(1), (3), and
(4) of the Act by terminating John Williams.
7. The unfair labor practices set forth in Conclusions
of Law 4, 5, and 6 affect commerce within - the meaning
of the Act.
'8. The Company has not violated the Act by telling
employees about its existing pension plan; by telling em-
ployee Clark that the Union's advent might cause the
Company to punish employee infractions more severely;
by interrogating employee Conners, by telling an- em-
ployee that he and another employee were members of a
union organizing committee; by telling an employee
(through Robert Corban) about late December 1982 that
it knew the employee would vote for the Union; by in-
forming employees that they would be unsuccessful in
obtaining union representation; or by giving employees
Gelb and Postell the impression of surveillance.
THE REMEDY
Having found that the Company has engaged in cer-
tain unfair labor practices , I shall recommend that it be
required to cease and desist therefrom . The order as to
union insignia will not restrain the Company from re-
stricting the wearing of union insignia during working
hours when employees have contact with the public,
provided that such a restriction by the Company is moti-
vated by a legitimate nonpretextual reason which does
not involve any. element of union animus or discrimina-
tion between union insignia and other forms of insignia.
See -Holladay Park Hospital , 262 NLRB 278 ( 1982), Medi-
cal -Center of Beaver County, 266 NLRB 429 ( 1983);
NLRB v. Methodist Hospital of Gary, 733 F 2d 43 (7th
Cir. 1984).110
The Company's unfair labor practices included dis-
crimination with respect to' 21 terminated employees;
threats of plant shutdown, discharge, and other reprisals
for union activity; promises and grants of benefit to dis-
courage union support; surveillance over a union meet-
ing; giving employees the impression of such surveil-
lance ; unlawful restrictions on union activity; telling an
employee that the Company would never bargain with a
union; and interrogation of employees regarding their
own and others' union sympathies and activities and re-
garding contact with the NLRB. All-such unfair labor
practices were committed by management personnel
who were still in the Company's employ at the time of
the hearing; all. but one of such individuals still retained
management positions, the demotion of the single excep-
tion (Renzulli) was not due to his unfair labor practices;
and most of the unfair labor practices were participated
in by high-ranking- members of management. Moreover,
after the Company entered into a settlement, agreement
of the initial charges herein, and undertook to refrain
from unfair labor practices in the future, the Company
engaged in further and more serious unfair labor prac-
110 The Company transports clients by ambulance to, hospitals and
medical facilities on an emergency basis In addition , the company trans-
ports, on a nonemergency basis, clients over 65 who are not necessarily
physically or mentally handicapped, and clients (including juveniles) who
are physically handicapped , mentally ill, and/or mentally retarded A
particular . employee may be assigned to any of these types of transporta-
tion , although there is little evidence that any employee is assigned to
more than one type in a single day The issuance of this Order does not
constitute a determination as to what (if anything) constitutes a "legiti-
mate" reason for prohibiting or restricting the wearing of union insignia
during these respective kinds of operations Cf. Burger King Corp, 265
NLRB 1507 (1982), enf denied 725 F 2d 1053 (6th Cir 1984)
ALERT MEDICAL TRANSPORT - - 673
tices in which a major participant was Robert Corban,
who committed all of the unfair labor practices before
the settlement agreement was approved. I conclude that,
unless restrained , the Company is likely to engage in
continued and varying efforts in the future to infringe on
employee rights. Accordingly, a broad order is called
for. Hickmott Foods, 242 NLRB -1357 (1979).
Affirmatively, the Company will be required to offer-
Criniti, Bell, and John Williams immediate reinstatement
to the jobs of which they were unlawfully deprived, or if
such jobs no longer exist, substantially equivalent jobs.
Concerning the rest of the unlawfully terminated em-
ployees, all 18 of whom were aides, their old jobs no
longer exist, and the Company contends, in effect, that it
does not have any jobs which they are qualified to fill.
However, the Company created this situation for the
purpose of obtaining a pretext for terminating these
aides. Accordingly, the Company will be required to
offer reinstatement to these individuals as aides. In this
connection, I note the testimony of both Robert Corban
and Greenberg that aides were useful entirely apart from
the alleged former DPW requirement for their presence.
Concerning all 21 of these employees, such job offers are
to be without prejudice to their seniority or other rights
and privileges previously enjoyed. In addition, the Com-
pany will be required to make all 21 • of these employees
whole for any loss of pay they may have suffered by
reason of the'discrimination against them, less net interim'
earnings , to be computed in the manner prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest as
called for in Florida Steel Corp.,' 231 NLRB 651
(1977)."" i Also, the Company will be required to ex-
punge from its files any reference to the unlawful suspen-
sion and the unlawful terminations, and notify the em-
ployees that this has been done and that evidence of such
unlawful actions will not be used as a basis ,for future
personnel actions against them. Such expunction shall in-
clude, without limitation, Wright's incident report as to
Bell (R. Exh 13); Renzulli's and Gross' incident reports
as to John Williams purporting to describe alleged inci-
dents on November 4, 1982 (R. Exhs. 19 and 20); and
Violet Corban's notations about alleged incidents involv-
ing John Williams on and before November 3, 1982 (R.
Exh. 17). As to these documents, such expunction is re-
quired because they were 'not prepared in good faith, but
instead were prepared in an effort to provide a documen-
tary defense of these, employees' unlawful discharge. See
Sterling Sugars, 261 NLRB 472 (1982).
The complaint alleges that the Company's postsettle-
ment unfair labor practices preclude the holding of a fair
rerun election and are so serious and substantial in:char-
acter and effect as to warrant the entry of a bargaining
order effective October 12, 1982, the date on which the
Union possessed majority status.' 12 Such an order is not,
111 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
112 Although the Company's'prepetition'unfair labor practice cannot
support objections to the election , this unfair labor practice can be con-
sidered in determining whether a bargaining order should issue NLRB v.
Anchorage Times Publishing Co, 637 F 2d 1359, 1364-65'(9th Cir 1981),
cert denied 454 U S 835 .( 1981) However , because the complaint relies,
upon only postsettlement unfair labor practices to support the requested
bargaining order , presettlement unfair labor practices will be disregarded
of course, -precluded by the absence of any contention
that the. Company unlawfully refused to recognize the
Union. l t 3 Where, as here, the Union at one time en-
joyed majority support as demonstrated by authorization
cards, a "second-category" bargaining order should issue
to remedy unfair labor practices which, have the tenden-
cy to undermine election support, and impede the elec-,
tion process, if the possibility of erasing the effects of
such unfair labor practices and insuring a fair rerun elec-
tion by the use of "traditional" remedies is slight and em-
ployee sentiment once .expressed through cards would,
on balance, be better protected by a bargaining order.
Among the factors material in making such a determina-
tion.'are the extensiveness of the employer's unfair labor
practices in,terms of their past effect on election condi-
tions, the likelihood. of their recurrence in the future, and
the likelihood that compliance with a remedial order
would erase from the employees' memories the coercive
effect,of the unfair labor practices sought to be so reme-
died. t 14 On the basis of these standards, I conclude that
a -bargaining order should issue here.
As found above,, the Company engaged in unfair labor
practices from about early September 1982, 6, weeks
before the Union filed its election petition, until early
February 1983, after the. Union had filed unfair labor
practice charges in Case 4-CA-13446 and objections to
the election. These unfair labor practices included 19 un-
lawful discharges a month or two before the election (in
a unit of no more, than 135 as of October 12, 1982),
which probably had the effect of destroying the majority
status enjoyed by the Union on October 121t5 More-
over, the terminated aides included Jardine, the employ-
ee who initiated the union drive in August 1982. The
Union's loss •of the election and its filing of election ob-
jections and of an unfair labor practice charge attacking
these 19- discharges did not deter the Company from
continued unlawful conduct. Rather, the 'Company there-
after unlawfully discharged two. more prominent union
activists, one of them partly because he had given infor-
mation ' to the NLRB regarding this charge and the ob-
jections and had urged other employees to do likewise.
Discharge is about the most severe punishment that an
employer can inflict for union activity, and the coercive
impact, on employees of a consequent sudden loss of
income cannot be completely undone by Board-com-..
The last presettlement unfair labor practices and the first postsettlement
unfair labor practices were separated by about 3 months Cf Dutch Boy,
Inc, 262 NLRB 4, 7-8 (1982)
113 NLRB v Gissel Packing Co, 395 U S 575, 613-615 (1969), NLRB
v Daybreak Lodge Nursing Home, 585 F 2d 79, 82 (3d Cir 1978), Ohio
New & Rebuilt Parts, 267 NLRB 420.(1983) '
114 Gissel Packing, supra, 395 U S at 613-615, NLRB v Keystone Pret-
zel Bakery, 695 F 2d 257, 263-264 (3d Cir 1982) (en banc), Permanent
Label Corp, supra, 657 F 2d at 518-521 (3d Cur 1981), NLRB v Armcor
Industries, 535 F 2d 239, 244 (3d Cir 1976), NLRB v Garry Mfg Co, 630
F 2d 934, 945-946 (3d Cir 1980), Eastern Steel Co, 253 NLRB 1230,
1240-41 (1981), enfd 671 F.2d 104 (3d Cir 1982), Daybreak Convalescent
Home, 230 NLRB 800, 804-805 (1977), entd 585 F 2d 79 (3d Cir 1978),
Ohio New & Rebuilt Parts, supra, Tall Pines Inn, 268 NLRB 1392, 1411
(1984)
115 The appropriate unit consisted of between 125 and 135 employees.
As of October 12, 1982, 76 cards had, been signed by unit employees Of
the 19 employees unlawfully discharged before the election, all but Ross
had signed cards on or before October 12
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pelled or judicially compelled reinstatement and backpay
months or years later. Accordingly, such discharges con-
stitute "a most flagrant means of dissuasion" (Eastern
Steel, supra, 671 F.2d'at 108). Furthermore, the Compa-
ny told employees that the Company was thinking about
or would try to improve working conditions and benefits
and give them more working hours, and would try to
settle their grievances 'and make some improvements, for
the express or implied purpose of dissuading-them from
voting for the Union, told employees that the -Union's
advent had caused or might cause the Company to delay
a wage increase and other improvements; implied that in-
surance benefits would be improved if the Union was *no
longer on the scene; unlawfully limited employees' rights
to engage in, union activity; unlawfully forbade employ-
ees to wear union insignia , and threatened to discharge •
them for wearing it; in other employees' presence, phys-
ically removed a union button from an employee who
was wearing it before clock-in time and - off company
property, and threatened him with discharge if he wore
it again ; gave employees the impression of surveillance
over a union meeting, rescheduled a company meeting in
order to interfere with employee attendance at a union
meeting;. gave employees- turkeys in order to dissuade
them from voting for the Union; and interrogated - em-
ployees about their own and others' union activity.
As previously noted,, practically all of these unfair
labor practices were committed by management repre-
sentatives who were still employed as such at the time of
the hearing, and most of them were high in the manage-
rial hierarchy. Nor has the Company taken' any steps
whatever (so far as ,the record shows) to counteract the
coercive tendency of its unlawful conduct Even assum-
ing that a Board order will deter further unlawful con-
duct although the January 1983 charges and objections
did not, I think.it unlikely that the coercive impact of
the 21 unlawful discharges and the Company's other
unfair labor practices would be negated by a cease-and-
desist order, reinstatement offers and backpay,to the dis-
criminatees many months after their terminations, and a
notice to the-employees that such action was' taken and
the Company will in the future respect employees' orga-
nizational rights.116 Rather, the many unlawful termina-
tions and the nature, -number, and scope of the Compa-•
ny's other unfair labor practices lead me to conclude that
the damage to the employees' ability to exercise a free
choice has already been done (see Gissel, supra, 395 U.S.
at 612). - '
In view of the foregoing, I conclude that the possibili-
ty of insuring a fair rerun election through the use of
"traditional" remedies is slight, and that employee senti-
ment once expressed through cards would be better pro-
tected by a bargaining order than by a cease-and-desist,
reinstatement/backpay, and notice-posting order alone.
Because the Union had obtained majority status on Octo-
ber 12, 1982, by which date the Company had' com-
menced its unfair labor practices, the -company's bar-
gaining obligation will commence as of that date. Peaker
Run Coal Co., 228 NLRB 93 (1977); Ohio New & Rebuilt
Parts, supra, 267 NLRB 420, 437 (1983); Daybreak Lodge,
supra, 585 F.2d at 82-83 (3d. Cir. 1978).
In addition, the Company will- be required to post ap-,
propriate notices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed' 17
ORDER
The Respondent, Brocal Corp. d/b/a Alert Medical
Transport, Philadelphia, Pennsylvania, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Removing union buttons from clothing worn by
employees, forbidding employees to wear union buttons,
and threatening to discharge' employees for wearing
union buttons; but nothing in this order shall forbid Re-
spondent to restrict the wearing of union insignia during
working hours while employees have contact with the
.public, provided that such restriction is motivated by a-
legitimate nonpretextual reason which does not involve
any element of union animus or discrimination between
union insignia and other forms of insignia.
(b) Forbidding employees to pass out union cards or to
distribute union literature to employees of other employ-
ers, off company premises and at times when such activi-
ty would not interfere with employees' work; and threat-
ening to discharge them for such conduct.
(c) Forbidding employees to talk with professional
union organizers off company premises at times when
such activity would not interfere with employees' work.
(d) Telling employees that the advent of, District
1199C, National Union of Hospital and Health Care Em-
ployees, Division of RWDSU, AFL-CIO had caused
Respondent to delay giving a wage increase, was causing
Respondent to delay efforts to get a better insurance
plan, and .might interfere with Respondent's ability to
remedy vehicle safety.
(e) Implying to employees that insurance benefits
would be improved if District 1199C was no longer on
the scene.
(f) Telling employees, for the express or implied pur-
pose of discouraging their union sympathies, that Re-
spondent will try to improve their wages, hours, and
working conditions, try to settle their grievances, and
might effect some improvements.
(g) Giving employees the impression that Respondent
has engaged.in surveillance over a union meeting
(h) Interrogating employees, in a manner constituting
interference, restraint, and coercion, about their own and
others' union activity 'and about contact with the Nation-
al Labor Relations Board.
(i) Rescheduling company meetings in order to inter-
fere with employee attendance at union meetings.
117 If no exceptions are filed as provided by Sec 102 46 of the Board's
116 As to the employee reassurance sought to be effected by the in- Rules and Regulations, the findings, conclusions, and recommended
stant "traditional" notice-posting order, I note that the Company had Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
posted a somewhat similar notice, pursuant to the settlement agreement, Board and all objections to them shall be deemed waived for all pur-
until a few weeks before resuming its violations of the Act. poses '
ALERT MEDICAL TRANSPORT
(j) Threatening employees that Respondent will close
the business, change-its name, move to another town, or
do whatever is necessary to keep from becoming union-
ized: -
(k) Threatening to discharge employees for union ac-
tivity. .
(1) Telling employees that Respondent will not negoti-
ate with a union under any circumstances. -
(m) Threatening employees that Respondent's business
will be shut down if employees attend a union meeting
and/or that in that event, they will be responsible for
employees' unemployment and will probably suffer phys-
ical harm from them for having them Jose their jobs.
(n) Threatening employees -that the business will shut
down if District 1199C gets in.
(o) Engaging in surveillance over union meetings.
(p) Relieving employees of the requirement to have
their timecards signed before performing overtime work;
giving employees, turkeys and insurance books; laying
off, discharging, or suspending employees; changing em-
ployees' work-schedules; or otherwise discriminating -
with regard to employees' hire or tenure of employment-
or any term ,or. condition of employment; to discourage.
membership in District 1199C or any other labor organi-
zation. - .
(q) Discharging, or otherwise discriminating against
employees because they have filed charges or given testi-
mony under, the Act. -
(r) In any other manner interfering with, restraining,
or coercing employees-in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the, Act.
(a) Offer Rachel Bell, Emanuel Criniti, and John Wil-
liams immediate and full reinstatement to the jobs of
which they were. unlawfully deprived, or, if such jobs no
longer exist, substantially equivalent jobs, without preju-
dice to their seniority or other rights and privileges pre-
viously enjoyed.
(b) Offer the following employees immediate and full
reinstatement to jobs' as aides , without prejudice to their
seniority or,-other rights and privileges, previously en-
joyed; Mack Ball, Kevin' Charity, Robert Cummings,
Patrick Dumas, Irene Frazier, Thomas Freeman, Carla
Garner, Stephen Griffin, Phillip Jardine, Deborah Jen-
kins , Douglas Johnson, James Knight, Theresa Mason,
Stephanie Matthews, Joseph Middleton, Kimberly Ross,
Betty Twyman, and Gary Williams. '
(c) Make all ,21 of these employees whole for any loss
of pay they may have suffered by reason of their unlaw-
ful termination and Rachel Bell's unlawful suspension, in .
the manner set forth in the section of this decision enti-
tled "The Remedy."
(d) Remove from the files of all 21 of these employees
any reference to the unlawful personnel actions taken
against them (including,,- without limitation , Michael
Wright's incident report as to Rachel Bell; Ahthony
Renzulli 's and Ruth Gross' incident reports as to John
675
Williams purporting to describe alleged incidents on No-
vember 4, 1982; and Violet Corban's notations about al-
leged incidents involving John Williams on and before
November '3, 1982); and notify all 21 of these employees
in writing that this has been done and that evidence of
such unlawful personnel action will not be used as a basis
for' future personnel actions against them.
(e) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, per-
sonnel records and reports, and all other records neces-
sary or useful for analyzing and computing the amount
of backpay due under the terms of this Order.
(f) On request, recognize and bargain with District-
1199C as the exclusive representative of the employees in
the -following appropriate unit , and embody" in a signed
agreement any agreement reached:
All station, wagon drivers, van drivers, bus driv-
ers, ambulance drivers, drivers 2, dispatchers, emer-
gency medical technicians, car, washers, aides, serv-
ice mechanics, light mechanics, night mechanics,
daytime mechanics, parts employees, and garage,-
cleaning and building maintenance employees em-
ployed by Brocal Corp. d/b/a Alert Medical Trans-
port at its' 50 Laurel Street, Philadelphia, Pennsyl-
vania facility, excluding office clerical employees,
guards and supervisors as defined in the Act.
(g) _ Post' at Philadelphia, Pennsylvania facilities copies
of the attached notice marked !'Appendix."' 18 Copies of
the notice, on forms provided by the Regional Director
for Region 4, after being signed by. Respondent's author;-,
ized representative,'- shall be posted by Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(h) Notify the, Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER RECOMMENDED that paragraphs
16(b)(i), 16(e)(ii), 16 f (iv), and 17(a) of the complaint is
dismissed. Paragraph 10(a)(i) is dismissed to the - extent
that it alleges unfair labor practices directed at employ-
ees Gelb and Postell. Paragraph 24(b) is dismissed to the
extent that it may allege that Robert Corban -unlawfully
interrogated employee Conners.
IT IS ALSO FURTHER RECOMMENDED that the election
conducted in Case,4-RC-15186 be set aside, the repre-
sentation petition is dismissed, and all prior proceedings
thereunder be vacated.
118 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 thee United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "