Balboa Ambulance

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 745 (N.L.R.B. 1994)

745
313 NLRB No. 128
BALBOA AMBULANCE
1 On September 24, 1993, Administrative Law Judge Richard J.
Boyce issued the attached decision. The Respondent filed exceptions
and a supporting brief.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
In adopting the judge’s finding that the Respondent unlawfully dis-
charged Meyers, we do not rely on the judge’s implied view that
an employee’s preparation of a false prehospital patient record would
not be significant misconduct unless the employee actually filed the
report.
1 The charge was filed on November 2, 1992. The complaint
issued on December 31 and was amended during the trial.
2 Case 21–RC–19094.
3 The Regional Director later determined, after resolving the chal-
lenges, that the Union did not receive a majority, and issued a cer-
tification of result so indicating.
4 Meyers testified that he had discussed his intentions with Michael
Markert, operations supervisor; that Markert asked him to wait until
the October 30 ‘‘end of the shift bid’’ and to give 2 weeks’ notice;
and that he planned to tender a resignation notice, ‘‘already printed
with the date on it,’’ on October 30.
Balboa Ambulance, Inc. and Robert J. Meyers. Case
21–CA–29024
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
The question presented here is whether the judge
correctly found that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging Robert J.
Meyers.1 The National Labor Relations Board has con-
sidered the decision and the record in light of the ex-
ceptions and brief and has decided to affirm the
judge’s rulings, findings,2 and conclusions and to
adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Balboa Ambulance, Inc.,
San Diego, California, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Robert R. Petering, Esq., for the General Counsel.
Raul E. Del Rio, Vice President, of San Diego, California,
for the Respondent.
DECISION
I. STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. I heard
this matter in San Diego, California, on June 3, 1993.
The complaint arising from a charge filed by Robert J.
Meyers, in his individual capacity, alleges that Balboa Am-
bulance, Inc. (Respondent) violated Section 8(a)(3) and (1)
of the National Labor Relations Act (the Act) on October 30,
1992, by discharging Meyers.1
II. JURISDICTION/LABOR ORGANIZATION
Respondent, a California corporation, provides ambulance
services in and around San Diego. The complaint alleges, the
answer admits, and I find that it is an employer engaged in
and affecting commerce within Section 2(2), (6), and (7) of
the Act.
The complaint alleges, Respondent admitted during the
trial, and I find that the International Association of EMTs
and Paramedics (IAEP), AFL–CIO (the Union) is a labor or-
ganization within Section 2(5) of the Act.
III. THE ALLEGEDLY UNLAWFUL DISCHARGE
A. Evidence
Meyers worked for Respondent as an emergency medical
technician (EMT) from April 27, 1992, until discharged on
October 30, 1992. Earlier on October 30, and the day before,
he had been the Union’s observer in a two-session NLRB
election among Respondent’s employees.2 The count, imme-
diately after the second session, disclosed 16 votes for and
14 against the Union, with 3 challenged ballots.3 Meyers
lodged all three challenges.
Michael Rupert, a union official, had prevailed on Meyers
to be an observer only a few minutes before the October 29
session, which began at 4 p.m. Some of the employees had
suggested Meyers, reasoning that he planned to leave Re-
spondent shortly after the election, so had little to lose
should his serving antagonize Respondent.4 So far as the
record shows, Respondent had no basis, before then, to know
Meyers’ union sympathies.
Michael Markert, Respondent’s operations manager, testi-
fied that he recommended Meyers’ discharge to others in
management in the early afternoon of October 29, before
Meyers’ designation as an observer, because of misconduct
the day before; and that, while the others promptly endorsed
his recommendation, Respondent delayed implementation on
the advice of counsel until after the election.
Meyers’ supposed misconduct consisted of making certain
entries on a form, entitled ‘‘Prehospital Patient Record,’’ in
connection with the abortive transport of a patient from a fa-
cility known as Casa Palmera to another known as Scripps
Encinitas. Meyers entered, for example, that the patient’s pu-
pils were ‘‘reactive’’ and her lungs ‘‘clear,’’ the implication
being that he had seen and conducted a ‘‘preassessment’’ of
the patient.
Meyers’ partner that day, Vincent Secor, testified, how-
ever, that he and Meyers learned upon arriving at Casa
Palmera that the call had been canceled, and that they left
‘‘without making any patient contact.’’ Meyers testified, on
the other hand, that Secor went to the men’s room on their
arrival; that a nurse, Jeanette Vermeren, meanwhile aimed
him toward the patient’s room while on the telephone at the
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Meyers particularized concerning his preassessment in this in-
stance:
I . . . walked in the patient’s room, said, ‘‘Hi, my name’s Rob-
ert. I’m an EMT. I’m here to take you to Scripps Encinitas for
an EEG CAT scan.’’ I placed my hand on her forehead. . . .
I asked her, is she okay? She said, ‘‘I’m feeling fine.’ She
talked to me. . . . I put my hand over her eye, pulled my hand
away. Other eye, pulled my hand away. . . . I asked her if she
can move for me. She moved her hands, she wiggled her feet.’’
6 Vermeren’s account diverged from Meyers’ in one curious detail.
Whereas he recalled that she told him and Secor of the cancellation
at the nurses’ station, she testified that, after directing Meyers to-
ward the room, she ‘‘vaguely remembered that this was canceled.’’
She went on:
[I]t was indeed canceled. I went down to the room, and I was
glad to see that the patient hadn’t been taken from the bed to
the stretcher yet. Because that would have been a big ordeal for
her, she was so ill. . . . And I said, ‘‘Whoa, wait, there’s no
transfer today.’’
7 The form was in triplicate.
8 Markert, responding to a leading question from Respondent’s
representative, testified that Respondent never made it policy ‘‘to rip
up the paperwork of a canceled call and substitute . . . a new set
of paperwork.’’ Still being led, Markert followed up that the county
‘‘strictly’’ regulates the issuance of these forms and imposes ‘‘strict
accountability.’’ He went on:
[I]t’s more of an economical issue than anything else. These
forms cost money. They [the county] keep track of how many
forms they issue to a specific agency, as opposed to how many
return. . . . And they have been very adamant about not reissu-
ing more forms if you have over a certain amount unaccounted
for.
He added, again led, that destroying a form and ‘‘recreating a new
one’’ is ‘‘inconsistent’’ with county policy—‘‘it’s inconsistent, it’s
part of what creates the problem, and there shouldn’t be any need
to do that.’’
nurses station; that he conducted a preassessment of the pa-
tient in her room;5 and that Secor rejoined him following his
return to the nurses’ station, after which Vermeren reported
the cancellation. Secor denied that he used the men’s room,
and insisted that he and Meyers were never ‘‘physically sep-
arated.’’
Entries in Respondent’s traffic report for October 28 indi-
cate that Meyers and Secor were at the Casa Palmera 6 min-
utes, arriving at 10:06 a.m. and leaving at 10:12 a.m.
Vermeren testified that she ‘‘pointed’’ Meyers toward the
patient’s room and that she saw him ‘‘walking towards’’ the
room. She did not see Meyers actually preassess the patient,
she testified, and could not recall if Secor accompanied Mey-
ers.6
Meyers also wrote on the form:
Sheeted pt. [patient] bed to gurney, monitored v/s [vital
signs] en route, all safety precautions taken, TX [trans-
fer] P.O.C [position of comfort].
Meyers testified that he wrote this after returning to the
nurses’ station (while Vermeren was ‘‘still on the telephone’’
and before learning of the cancellation), having decided upon
methodology after seeing the patient. He further testified, in
essence, that he did this anticipating standard transport proce-
dures in the circumstances.
Meyers tore up the form after receiving word of the can-
cellation, placing the remnants in a trash can in the ambu-
lance. He explained:
I was under the assumption that we were there to pick
up a patient . . . until I was told this was not the case.
That being so, a new piece of paperwork regarding a
canceled call would have to be filled out. . . . This pa-
perwork was null and void.
Meyers continued:
[I]t’s very hard to go back through three pages . . . and
try and erase it all.7 It makes a mess. . . . So, instead
of making a mess of this stuff—I like to hand in nice,
clean paperwork. So, what I did was, tore it up, put it
in the trash, to just start over.
Meyers added that he intended to do the fresh paperwork
‘‘prior to end of shift,’’ and that he had handled past can-
cellations this way ‘‘with no problems from the company
whatsoever.’’8
Meyers’ and Secor’s ambulance developed brake trouble
later in the day, foreshortening their shift. The dispatcher in-
structed them to take Meyers to his car in Oceanside, after
which Secor was to return the ambulance to San Diego.
Meyers testified that he asked Secor, when they ‘‘parted’’ in
Oceanside, if he would do the ‘‘paperwork’’ for the canceled
call, and Secor ‘‘agreed to do that.’’ Disputing Meyers,
Secor testified that Meyers said nothing ‘‘about doing any
paperwork.’’
Secor testified that, back in San Diego, he ‘‘was putting
all the paperwork in order, which is customary at the end of
every shift,’’ when he ‘‘noticed that there was no paperwork
for the Casa Palmera trip.’’ Secor continued:
I remembered Mr. Meyers doing a set of paperwork
. . . . I returned to the unit [ambulance] to see if he
filed it somewhere else. . . . I did find it in the trash
can, ripped up. I then returned to the building to finish
a set of paperwork for him. . . . And, basically, I just
took the information that you would use on a call like
that and the pertinent information, which isn’t exactly
what was on his original report that was ripped up. I
put what we did and what we saw, and then turned that
in.
Secor went on that, after filing his Casa Palmera report,
he ‘‘turned the scraps’’ retrieved from the trash can ‘‘over
to Mr. Markert.’’ Secor first testified that Markert ‘‘pieced
it together [and] looked at it,’’ but said nothing; and that he
‘‘went home for the day.’’ Later, asked what he and Markert
said at the time, Secor recounted:
Very little. . . . I basically told him the story. I said,
‘‘We went on the call. And this was a canceled call.’’
He said, ‘‘So?’’ And I pointed out to him the things
that Mr. Meyers had put in that were all inappropriate
for not making patient contact. And then he said,
‘‘Okay.’’ And that was about the conclusion of our
conversation.
Secor testified that he gave the scraps to Markert because
‘‘it’s jeopardizing patient care.’’ He elaborated:
747BALBOA AMBULANCE
9 The record includes a statement signed by Secor and dated Octo-
ber 30. It says in part: ‘‘At no time did Robert or myself make pa-
tient contact. Robert was with me at all times and it was not possible
at any time for him to have made patient contact and do an assess-
ment.’’
10 Markert testified that he sent a written report to Jones. It is not
part of the record.
11 Markert’s affidavit states that he saw Olson, Del Rio, and
Smietana ‘‘at about 10:45 a.m.’’
[I]t just seemed so absurd for an EMT . . . to do a pa-
tient assessment like this when he made no patient con-
tact like that with them. And to fill in stuff like . . .
she was a white female when we never saw the patient.
I brought that to the attention of . . . Mr. Markert, and
it went from there. . . . I even told Mr. Markert . . .
that I had no problem with Robert; I had no problem
with him as a partner, or any grief with him, or any-
thing like that. And I didn’t set out to get him in trou-
ble or anything. . . . I was very appalled, and his
[Meyers’] credibility with me, basically, was shot after
that.
Secor had been on Respondent’s payroll about a week,
most of which had been devoted to training.
Markert testified concerning Secor’s coming to him:
I asked him why I was receiving this paperwork. And
he pointed out a few areas on the paperwork that he
was concerned with. . . . That seemed odd to him, that
this information could have been reflected on paper-
work when at no time was any contact made with the
patient. . . . There are also certain references made to
actions taken, movements made with the patient, and in
the unit, that there’s absolutely no way they could have
been made or initiated.
Markert continued that he presently sent Secor ‘‘home for
the day,’’ then:
With the paperwork in front of me, I looked at it much
more closely before I left for the night . . . . I found
many discrepancies. I formulated certain questions I
needed to follow up with Mr. Secor regarding this par-
ticular document. Those being the question of sex, race,
pupils, lungs, the COMA scale; again, all the patient-
specific assessment information that we were concerned
with, as well as the nearest hospital facility and trans-
port facility filled out. And the run codes, to scene,
which could have been filled out, and from scene,
which could not have been filled out. As well as the
wrong unit number and the—again, the patient’s spe-
cific information in the chief complaint findings where
we write our narrative. As well as the ensuing patient
movement and transport. As well, at the bottom, under
‘‘Responsible Party’’ at the bottom right, that is the fi-
nancially responsible party for that patient.
Markert added:
From what’s written here, and the way we are trained,
I would have to assume that the transport had taken
place, and then the attendant had not backed up and
completed filling in the gaps that’s left here. Because
it says, and I quote, ‘‘Monitored vital signs en route.
All safety precautions taken. Transport position of com-
fort.’’ Which is the position that you put the patient in
for their best comfort during transport.
The following morning, October 29, Markert testified, he
called Secor at home. Markert’s rendition:
I asked him to write up everything that happened. I also
asked him if at any time had Mr. Meyers made patient
contact. I was told no. I asked him if at any time . . .
Mr. Meyers had left his sight when they entered the fa-
cility. And he said no. I asked him if they reported to
the nurses’ station, turned around and left the facility.
He said yes. At that point I terminated the discussion
with Mr. Secor, again affirming, ‘‘I need to get a writ-
ten statement signed by you, and dated, on all the
events from the initiation of the call from dispatch to
the termination of the call.’’9
Secor likewise testified that Markert called him ‘‘the
morning after . . . and asked [him] what had happened.’’
Secor evinced uncertainty, however, whether Markert then
asked him for a statement, testifying: ‘‘I believe, at that time,
he asked me to write the whole incident up.’’ Secor further
testified that Markert asked if he ‘‘had in fact gone to the
restroom’’ at Casa Palmera, which is odd since Markert had
yet to hear Meyers’ side of the story.
Markert testified that he also called Gwen Jones of the San
Diego County Emergency Medical Services (EMS) the morn-
ing of October 29. He elaborated:
[W]e discussed the events that had taken place, bring-
ing no names into our discussion. . . . I gave her the
specific information I felt was in question on General
Counsel 3 [the torn-up form], and that the statements
were made and attested to that no patient contact had
been made. . . . I first asked her if she had ever had
anything like this happen before. And she said no. I
asked her if, in her opinion, that was a terminatable of-
fense . . . . She said, ‘‘Absolutely, if what you’re tell-
ing me you have on paper, in front of you, I feel that
it is.’’ And she requested from me a written report on
the entire incident, so that she could decide whether the
county needed to make it an issue with themselves.10
Jones did not testify.
At about 12:30 p.m. on October 29, Markert testified, he
presented his ‘‘findings and recommendation’’ to John
Olson, Respondent’s owner and president, Raul Del Rio, its
vice president, and Linda Smietana, its nursing director.11 He
still had not spoken with Meyers.
Markert summarized his presentation as follows:
I discussed the facts that had been given to me, the
obvious problems of the paperwork that had been sub-
mitted by Mr. Secor. That . . . I had further followed
up in the morning with Mr. Secor. And I discussed the
pertinent questions that I had asked him. Being that I
had the physical evidence that I did, as well as my con-
ference with Gwen Jones, only to affirm what I was al-
ready thinking about the severity of the situation, my
conclusion was [that] this paperwork was initiated prior
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 This testimony is uncontroverted, although Meyers testified: ‘‘I
don’t remember any discussion about challenged ballots.’’
13 Meyers testified, according to the transcript, that Olson ‘‘came
back and pointed his finger at me and said, ‘Markert and Smietana,
I want to see you now.’’’ I think it evident from the surrounding
context either that Meyers misspoke or the transcript is in error; that
Meyers meant to say, ‘‘Markert and Smietana want to see you
now.’’
14 I take Olson’s reference to ‘‘the previous expletive’’ to be an
adoption of Meyers’ and Rupert’s prior testimony that he said ‘‘fuck
off’’ or ‘‘fuck you.’’ Olson further testified, concerning his anger
and frustration: ‘‘I expressed it through being mad at just about ev-
erybody, even the people that didn’t vote. . . . I became a lot more
angrier than what I expressed to [Meyers] to other people there.’’
15 Smietana’s jottings, skimpy in the extreme, are in evidence.
to transport; patient contact had not been made. I also
used the . . . the traffic logs, that shows them with an
on-scene-to-clear time of six minutes. Which is not
time to enter the building, speak with a nurse, make a
patient contact and assessment, turn around, leave the
building, and clear yourself. I know that from my own
experience, and with the experience with this facility.
Taking all those things into consideration, my deter-
mination was that this was done prior, and without pa-
tient contact. And, had the call gone through, this was
intended to be submitted as the paperwork for that pa-
tient. And there’s absolutely no way I can allow some-
body to risk the life of a patient without doing a pre-
assessment on that patient. And my determination was
that termination should be done. And that was con-
cluded just a little bit after 1:00 p.m. on [October] 29th.
Markert continued that, because the first half of the NLRB
election was scheduled for later that afternoon, the group,
still assembled, called an attorney, Michael Seyle, ‘‘to ask
his opinion.’’ Markert went on:
And it was his recommendation to us that we not dis-
turb the voting body, of which Mr. Meyers was a part.
That conversation was handled over a speaker-phone
with all of us in the room. . . . At that point, we de-
cided to wait until the election was done, so that Mr.
Meyers’ vote would count. . . . And that we would not
. . . affect the outcome of the election.
Of those identified by Markert as privy to the Seyle con-
sultation, Olson alone offered putative corroboration. And he,
led by Respondent’s representative, said only:
To the best of my recollection, he [Seyle] advised that
we stay any decision on termination for a couple of
days, until the election was over with. . . . [T]he deter-
mination was made to support Markert’s decision to
fire Meyers, but only after the election.
After the polls closed, at 8 a.m. October 30, and before
counting the ballots, the presiding Board agent asked the par-
ties if they could resolve the challenges. The Union’s Rupert
recounted that Meyers said the three in question were super-
visors, prompting Olson to exclaim, ‘‘Bullshit!’’12
Meyers testified that Olson shook hands with various peo-
ple, but not him, following the ballot count. Meyers’ ac-
count:
He came to me and I held out my hand. . . . He with-
drew his hand . . . and looked me in the face and said,
basically, . . . ‘‘Fuck off.’’ And then . . . Mr. Olson
started waving his arms and screaming and yelling, and
saying, ‘‘Get that son-of-a-bitch out of here. Get that
fucker off my property. I want that son-of-a-bitch the
hell off my property now.’’ . . . And [he] was red in
the face. And very violent. And throwing his arms.
With that, Meyers testified, Olson briefly left the room;
then told him on returning that Markert and Smietana wanted
to see him.13
Rupert corroborated Meyers regarding the above. He testi-
fied that Olson ‘‘stuck his hand out’’ when Meyers extended
his hand, then ‘‘pulled it back and said, ‘Fuck you.’’’ Rupert
added that Olson told Meyers to ‘‘get off the property’’; and,
later, that Markert ‘‘needs to talk to you.’’
Olson did not significantly contradict Meyers and Rupert.
Admittedly ‘‘angry and frustrated at the whole situation,’’ he
recalled the encounter this way:
All I stated to Mr. Meyers was . . . ‘‘Michael Markert
has a message for you.’’ And the previous expletive
that I used. And that was it.14
Olson did not expressly deny saying he wanted Meyers off
the property.
Meyers presently met Markert and Smietana in the office
area. Markert testified that he asked Smietana ‘‘to take notes,
and that’s what she did.’’15
Meyers recalled:
They had a folder in their hand. . . . And they said,
‘‘We need to see you.’’ . . . [T]hey told me, ‘‘We
have reason to believe that you filled out paperwork on
a patient . . . prior to making a patient contact.’’ . . .
Then they pulled out a piece of paper, an EMS form
. . . that we fill out on the emergency calls that we run
. . . . And the form that they showed me was ripped
in six pieces. And I recognized the form. . . . [I]t was
taped back together with Scotch tape. . . . [T]hey told
me that I was going to be suspended prior to investiga-
tion. . . . And then they asked me, ‘‘What do you have
to say on your behalf in this matter?’’ And I told them
. . . .
Meyers then described the underlying incident in elaborate
detail, as he recalled. He testified that Markert and Smietana
at length interjected that Secor disputed his account about pa-
tient contact; that he ‘‘encouraged them to call’’ Vermeren
at Casa Palmera to verify that he made patient contact; and
that they rejoined, ‘‘Well, we’ll investigate it.’’
Markert testified:
I told him that I would look into what he was saying,
and if we found out anything different than what I had
already known, then there was a possibility we could
consider this a suspension at that point. . . . But as of
749BALBOA AMBULANCE
16 Markert added that ‘‘the general climate . . . in the vicinity of
Mr. Olson seemed slightly frustrated, angry’’ after the ballot count;
that Olson told dispatcher Traycee Martinez ‘‘rather loudly and with
anger to get everybody . . . the hell out of the dispatch area’’; that
Olson’s ‘‘anger and frustration . . . was being directed in all direc-
tions’’; and that ‘‘it seemed generally best to stay out of [Olson’s]
way.’’
that day it was left as a termination. Anything else is
misreading my words.
Sometime during this sequence, according to Meyers,
Olson ‘‘stood up’’ from a nearby desk, and
started waving his arms, and came at me in a very vio-
lent manner, and said, ‘‘Get him the hell off my prop-
erty. . . . Get him the fuck out of here. I don’t ever
want to see you around Balboa again. I want you out
of here. Don’t ever come back.’’ And [he] chased me
out of the office, and . . . out the front door. . . . And
then I went with Mr. Markert to the parking lot.
Markert, while less graphic, effectively corroborated Mey-
ers regarding this incident. He testified that Olson told them
‘‘to leave rather abruptly,’’ and that he ‘‘sensed a lot of
anger and frustration there.’’16 Markert’s affidavit states,
moreover: ‘‘John Olson interrupted us and said that he want-
ed him [Meyers] away from those offices, take this outside
now.’’
Meyers testified that he and Markert had this exchange in
the parking lot:
I asked Mr. Markert, I said, ‘‘Why are you guys going
this? You knew . . . that I was going to plan on giving
you two weeks’ notice.’’ . . . He said, ‘‘You know this
is out of my control. This is John Olson that’s doing
this, and I have no control over what he does.’’
Markert did not dispute this account. Nor did Smietana,
who, according to Markert, ‘‘was by my side through all
contact with Mr. Meyers.’’
Markert testified that he undertook further investigation on
October 30 after telling Meyers he was fired. He particular-
ized:
What we did at that point was bring Mr. Secor in, and
discussed it with him. What had taken place, start to
finish. Had he used the restroom? Because that question
came up from Mr. Meyers that morning, said he went
to the bathroom, he was having a problem with his
bladder, with frequent urination, from drinking coffee.
I asked him all of those questions. He . . . denied it.
And again, with all the evidence at that point, I saw ab-
solutely no reason that I should believe otherwise.
Markert testified that he spoke with Secor ‘‘at first avail-
ability,’’ but that he ‘‘couldn’t say if it was late or early’’
in the day; that Del Rio also ‘‘was there,’’ but that he did
not know if Smietana ‘‘was still on the grounds or not’’; and
that all this took ‘‘probably 30 minutes.’’ Secor said nothing
about this in his recital; and Del Rio, Respondent’s rep-
resentative in the trial, did not testify.
Markert would have it that, after again interviewing Secor,
he
went back over everything that I had. I wanted to
know, not for anyone else, not for here or any court in
the land, I wanted to know for myself that what I had
done was right. I went back and looked over everything
I had. And it just screamed at me, the same thing. . . .
I looked over GC3 [the torn-up form], as well as—there
are a few more that have not been entered in here, such
as the company-patient invoice, the dispatch ticket . . .
that we take the information on, as well as Mr. Secor’s
first statement . . . , nurse Smietana’s notes from the
discussions with Mr. Meyers, and the traffic logs . . .
for the times. And none of it equated with what Mr.
Meyers had told me.
Markert then injected, as if assuming that Secor’s restroom
visit would have prevented Meyers’ proceeding with the task
at hand: ‘‘And to add a bathroom trip to the six minutes here
. . . really puts it over the top.’’
Markert testified that he ‘‘probably spent . . . a good
hour’’ reevaluating all the evidence on October 30, beyond
which he has ‘‘looked at it on numerous occasions since
then, and there’s absolutely nothing that has changed [his]
mind since then.’’
On concluding his reevaluation, Markert testified, he told
Olson that he ‘‘had no recommendations to alter,’’ and Olson
replied, ‘‘Leave it at the termination level.’’ Olson said noth-
ing about this in his testimony.
Meyers returned to Respondent’s office on November 2
seeking a copy of his personnel file. Markert then gave him
a document bearing the date of October 29 and stating:
Robert is being terminated for falsifying a legal docu-
ment, in particular a county EMS form. We have suffi-
cient evidence to prove a pre-assessment was done on
paper prior to patient contact being made.
Meyers testified that he questioned the document’s date,
and that Markert ‘‘did not comment.’’ Markert’s testimony
did not cover this, but his affidavit states:
The date on this form is 10–29–92 which reflects the
date I signed it and made the decision to terminate
Meyers. It should have read effective 10–30–92.
Meyers also testified:
I told Michael at that time, I said, ‘‘If you would let
me resign and let me finish my two weeks, we could
make all this go away. And we wouldn’t have this
problem.’’ And he said again, he reiterated, that it was
out of his hands and this was Mr. Olson.
Markert did not controvert Meyers in this respect.
Meyers testified that his preassessment of the patient in
question ‘‘probably took . . . about 30 seconds.’’ Markert
testified that a preassessment, ‘‘done properly,’’ entails ‘‘at
least 45 seconds of work.’’ Markert appended, perhaps for-
getting his stated premise that Meyers had not made patient
contact:
And from the statements I have seen, from a conversa-
tion on the telephone with Mr. Secor and Mr. Meyers,
these were not done properly.
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Asked about Meyers’ prior evasiveness, Markert cited an in-
stance in which Meyers supposedly asked his partner (not Secor),
who was driving, to stop by Meyers’ house while answering a call.
Markert elaborated:
I discussed it with both individuals, and I got the same reaction
that I expected . . . from Mr. Meyers, being: ‘‘It’s his word
against mine’’; ‘‘I don’t know what he’s talking about’’; ‘‘It
never happened.’’
18 Mentioned in the preceding footnote.
19 This formulation received Supreme Court approval in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
Asked why he did not invite Meyers’ account before
reaching his fateful decision, Markert testified variously:
(a) That Meyers ‘‘was not there,’’ he ‘‘had gone home for
the evening.’’
(b) That Secor, a ‘‘brand-new employee’’ had ‘‘no reason
whatsoever, and nothing to gain, by telling me anything that
was false.’’
(c) That Secor ‘‘came up with very specific answers to all
my questions . . . that evening and the following morning.’’
(d) That Meyers’ ‘‘word was spoken for him’’ circumstan-
tially, revealing that he ‘‘did not have ample time’’ to make
patient contact.
(e) That Markert ‘‘had the physical evidence of GC3 in
front of [him], and that, along with the times on Respond-
ent’s [traffic reports], spoke for the whole ball of wax.’’
(f) That Meyers ‘‘had been evasive with certain things
[Markert] had questioned before,’’ and that Markert con-
sequently felt he ‘‘was going to get the same type of reac-
tion’’ this time.17
Markert ignored Meyers’ suggestion that he ask Casa
Palmera’s Vermeren if Meyers made patient contact. He ex-
plained:
It is not policy to involve other agencies, unless we
have a problem with that agency. It’s not my policy to
make public wrongdoings by my employees. In that
sense, I did not contact the nurse.
Markert testified that Meyers ‘‘was satisfactory . . . as far
as EMT skills go.’’ He added that that ‘‘was only one facet
of his performance,’’ however, and that Meyers’ partners
often complained about his disregard of ‘‘company rules and
regulations.’’ Markert averred that he could ‘‘think of three
separate people who came to [him] on numerous occasions
with their problems,’’ and that this persisted throughout
Meyers’ tenure.
The complaints, Markert specified, concerned Meyers’
once asking a partner to stop by his house while responding
to a call;18 his once wanting to finish his meal before re-
sponding to a call, even though his partner ‘‘was adamant
. . . to go to this call’’; his proposing to a partner that they
misrepresent their location so the dispatcher would send an-
other ambulance to answer a call; and his driving too fast.
Asked his response to these complaints, Markert testified:
I would say . . . probably only three of the instances
. . . . were severe enough . . . that I actually needed
to counsel him. Counsel’s even a strong word. Mention
to him . . . . I got denials every time.
Markert admittedly took no action against Meyers for ask-
ing the partner to detour by his house while answering a call.
He explained:
I felt it inappropriate to act upon word against word.
. . . I planned on keeping Mr. Meyers on, anyway,
. . . [so] I felt no need to alienate him by taking some-
one else’s word over his.
Markert gave this rationale for withholding formal dis-
cipline otherwise:
I feel that if I am going to follow through with the dis-
cipline, especially of the nature of termination or sus-
pension, something that’s going to cost the individual,
. . . I want to know . . . that I was doing the right
thing. I want to know I had cause. And without evi-
dence other then myself or management personnel see-
ing him speed, for instance, or if I have word against
word, . . . it’s very hard for me to follow through on
that point. Because there is no evidence for me to go
with other than testimony.
Olson stated in a to-whom-it-may-concern letter dated Au-
gust 14, 1992:
Robert J. Meyers has worked for my organization
since April 27, 1992. During this time, Robert J. Mey-
ers has functioned as an Emergency Medical
Technician/Ambulance Driver.
Robert J. Meyers is an outstanding individual who is
capable, motivated and has a genuine interest and dedi-
cation to his job.
Robert J. Meyers relates well with others and also
deals well with authority. By my observations of Rob-
ert’s attitude and performance, he has tremendous po-
tential and would be an asset to any organization that
would wish to employ him.
B. Discussion
In Wright Line, 251 NLRB 1083, 1089 (1980), the Board
stated:
[W]e shall henceforth employ the following causation
test in all cases alleging violation of Section 8(a)(3) or
violations of Section 8(a)(1) turning on employer moti-
vation. First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a ‘‘motivating fac-
tor’’ in the employer’s decision. Once this is estab-
lished, the burden will shift to the employer to dem-
onstrate that the same action would have taken place
even in the absence of the protected conduct.19
I conclude, based on the following aggregate of factors,
that the General Counsel has made the requisite prima facie
showing:
(a) Respondent discharged Meyers moments after conclu-
sion of the NLRB election.
(b) Olson, Respondent’s president and owner, admittedly
was ‘‘angry and frustrated’’ in the election’s aftermath, and
directed inordinate wrath toward Meyers—refusing to shake
his hand, saying either ‘‘fuck you’’ or ‘‘fuck off’’ to him,
751BALBOA AMBULANCE
20 I credit Meyers that Olson carried on in this manner. His testi-
mony not only was uncontroverted, but was corroborated in signifi-
cant detail by Olson and the Union’s Rupert.
21 Markert’s assertion that he ‘‘felt it inappropriate to act upon
word against word,’’ if true, only underscores the incriminating
anomaly of Respondent’s so readily expelling Meyers in its post-
election truculence.
22 I did not find Markert to be a compelling presence on the wit-
ness stand, either in demeanor or testimonial content.
23 The October 30 date on the statement Markert solicited from
Secor, while not necessarily belying their testimony that Markert
questioned Secor on October 29, certainly does not reinforce it.
24 The assorted reasons advanced by Markert for not eliciting Mey-
ers’ story were singularly unconvincing.
25 Recognizing that Respondent’s actions toward Meyers must be
assessed in the context of its perception of his conduct, rather than
the actuality, I nevertheless credit Meyers that he in fact made pa-
tient contact at Casa Palmera. His testimony in that regard was con-
vincingly detailed and generally more persuasive than that of Secor,
who came across as a committed pawn of management.
26 Meyers’ make-whole entitlement shall be computed as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950). Interest shall
be figured as set forth in New Horizons for the Retarded, 283 NLRB
1173 (1987).
exclaiming that he wanted ‘‘that son-of-a-bitch [Meyers] out
of here,’’ etc.20
(c) Given that the preliminary ballot count favored the
Union, one reasonably can infer that Olson’s displeasure with
Meyers derived from Meyers’ having contributed to that re-
sult, as the Union’s observer, by challenging the eligibility
of those whose ballots ultimately defeated the Union.
(d) Respondent’s efforts to place Olson at the periphery of
the discharge decision were defeated by Meyers’ convincing
and uncontradicted testimony that Markert said in substance,
on both October 30 and November 2, that the discharge was
Olson’s doing.
(e) As shown by Olson’s to-whom-it-may-concern letter,
he had regarded Meyers as a decided asset to Respondent.
I conclude, as well, that Respondent has not overcome the
General Counsel’s prima facie showing. My reasons:
(a) I fail to see that Meyers engaged in any patient-endan-
gering or otherwise significant misconduct, and find Re-
spondent’s contrary contention to be baldly disingenuous.
Meyers did not submit false data, after all, and Respondent
would never have known about the supposedly incriminating
form had it not pieced together shards exhumed from the
trash.
(b) By any objective measure, some of the other conduct
attributed to Meyers—seeking to misrepresent the location of
his ambulance, for instance—was more serious than that said
to trigger the discharge, yet was overlooked.21
(c) I am unpersuaded by Respondent’s contention that the
discharge decision was made on October 29, before Meyers’
designation as an observer. First, Markert’s testimony—that
others in management endorsed his recommendation earlier
that day, and they decided to delay implementation after con-
ferring with an attorney—not only was unconvincing stand-
ing alone,22 but glaringly devoid of meaningful corrobora-
tion. Second, Markert did not give Meyers a termination no-
tice until November 2, even though the document is dated
October 29 and Markert’s affidavit says he signed it that day,
all of which indicates that it was of belated manufacture.
(d) The record contains manifold indicia that Markert’s
purported investigation was a hoax:
(i) Whereas Meyers did not tell Markert until the dis-
charge conversation on October 30 that Secor had used the
restroom at Casa Palmera, Secor testified that Markert asked
him the morning of October 29 if he ‘‘had in fact gone to
restroom.’’ This indicates, both to the contrary, that Markert
did not discuss the matter with Secor before the discharge—
and definitely not on October 29 before Markert professedly
reached his decision.23
(ii) While Markert would have it that he and Del Rio
interviewed Secor again on October 30, as part of a
postdischarge reconsideration, neither Secor nor Del Rio sup-
plied corroboration.
(iii) Markert testified that he presented his ‘‘findings and
recommendation’’ to others in management at 12:30 p.m. on
October 29, not at 10:45 a.m. as stated in his affidavit. This
suggests a belated recognition that the earlier time would not
accommodate the investigation that Markert claims to have
undertaken the morning of October 29.
(iv) Although Markert maintained that he interviewed and
reinterviewed Secor, and painstakingly reviewed the pertinent
documents several times over, all to ensure that ‘‘what [he]
had done was right,’’ he effected the discharge without both-
ering to speak with Meyers or with Casa Palmera’s
Vermeren.24
(v) Olson did not corroborate Markert that he told Olson,
after supposedly reevaluating the evidence, that he ‘‘had no
recommendations to alter,’’ and Olson responded, ‘‘Leave it
at the termination level.’’
(e) In light of Markert’s evident lack of veracity in so
many other critical respects, I reject as counterfeit his stated
belief that Meyers did not make patient contact at Casa
Palmera.25
To summarize, the General Counsel made a prima facie
showing that Respondent violated Section 8(a)(3) and (1) by
discharging Meyers, and Respondent failed to overcome that
showing.
CONCLUSION OF LAW
Respondent violated Section 8(a)(3) and (1) on October
30, 1992, by discharging Robert J. Meyers.
REMEDY
I will provide in my recommended Order that Respondent
cease and desist from the unfair labor practice I have found,
and that it take certain affirmative action to effectuate the
policies of the Act.
With regard to the latter, I will direct that Respondent
offer Meyers reinstatement to his former or a substantially
equivalent position, without prejudice to his seniority and
other rights or privileges; that it make him whole with inter-
est where appropriate for his loss of earnings and benefits
because of its unlawful discharge of him;26 and that it re-
move from its files and destroy any and all writings compris-
ing, documenting, or referring to said discharge, and notify
Meyers that this has been done and that that unlawful action
will in no way serve as a ground for or influence future per-
sonnel or disciplinary action against him.
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 I deny any outstanding motions inconsistent with this Order. If
no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all
purposes.
28 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended27
ORDER
The Respondent, Balboa Ambulance, Inc., San Diego,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees for belonging to or engaging in activities in support
of the International Association of EMTs and Paramedics
(IAEP), AFL–CIO or any other labor organization.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take this affirmative action necessary to effectuate the
policies of the Act.
(a) Offer Robert J. Meyers immediate and full reinstate-
ment to his former position or, if that position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority and other rights or privileges; and make him
whole as prescribed above in the remedy section for any loss
of earnings and benefits he suffered because of Respondent’s
unlawful discharge of him.
(b) Remove from its files and destroy any and all writings
comprising, documenting, or referring to said discharge, and
notify Meyers in writing that this has been done and that that
unlawful action will in no way serve as a ground for or in-
fluence future personnel or disciplinary action against him.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its place of business in San Diego, California,
copies of the attached notice marked ‘‘Appendix.’’28 Copies
of the notice, on forms provided by the Regional Director for
Region 21, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
employees for belonging to or engaging in activities in sup-
port of the International Association of EMTs and Para-
medics (IAEP), AFL–CIO or any other labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Robert J. Meyers immediate and full rein-
statement to his former position or, if that position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority and other rights or privileges; and WE
WILL make him whole for any loss of earnings and benefits
he suffered because of our unlawful discharge of him.
WE WILL remove from our files and destroy any and all
writings comprising, documenting, or referring to said dis-
charge, and notify Meyers in writing that this has been done
and that that unlawful action will in no way serve as a
ground for or influence future personnel or disciplinary ac-
tion against him.
BALBOA AMBULANCE, INC.