183 N.L.R.B. 961 (N.L.R.B. 1970)

Bob's Ambulance Service

National Labor Relations Board - Board DecisionsJun 23, 1970

183 N.L.R.B. 961 (N.L.R.B. 1970)

BOB'S AMBULANCE SERVICE Roy L . Burnham , a sole proprietor , d/b/a Bob's Am- bulance Service and Elgin Smith. Case 20-CA-5617 June 23, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On April 1, 1970, Trial Examiner Herman Corenman issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that Respon- dent had not engaged in certain other alleged unfair labor practices. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof; the General Counsel filed a brief in support of the Trial Examiner's Decision.' The Respondent also filed a motion to reopen the record to adduce further evidence to be discussed hereinafter) and the General Counsel filed an opposition thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Trial Examiner's Decision, the ex- ceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as modified herein. The Trial Examiner found, and we agree, that the Respondent by discharging employees Smith, Allin, and Rodrigues on June 1 coerced and restrained them in violation of Section 8(a)(1) of the Act; he recommended that they be reinstated with backpay. The Respondent, in addition to its exceptions, filed a motion to reopen the record to receive evidence with respect to Allin's suitability for reinstatement and backpay. The Respondent alleges that on or about February 26, 1970, Allin pleaded guilty to a violation of section 459 of the California Penal Code and was sentenced to 1 year's formal proba- tion and 60 days in the county jail. The Respondent I The Charging Party, by letter , indicated that he supported the General Counsel 's position 961 contends that in no event should it be required to pay back wages to Allin while he was confined to jail and that in view of his criminal record it is un- reasonable to compel the Respondent to offer him reinstatement. The General Counsel, in opposition to the Respondent's motion to reopen the record, con- tends that the Respondent's contentions do not re- late to the merits of the unfair labor practices be- fore the Board. We agree. He further contends that the Respondent's contentions relate to matters which should be considered during the compliance stage of this proceeding. We do not agree. In our opinion, Allin's suitability for reinstate- ment (and backpay) is a proper subject of inquiry at this time because it is material to the question of the appropriateness of the usual remedy of rein- statement with backpay. For the issue of employee misconduct which may warrant forfeiture of rein- statement goes to the remedy and not to the issue of complaince with the remedy.2 We shall, therefore, grant the Respondent's mo- tion and remand the proceeding to the Regional Director for the purpose of arranging a further hearing before the Trial Examiner to receive evidence limited to Allin's criminal record, and its bearing on his suitability or entitlement for rein- statement and/or backpay. The Trial Examiner shall make findings, conclusions, and recommenda- tions thereon in a Supplemental Trial Examiner's Decision. And, although we have adopted the Trial Examiner's 8(a)(1) finding with respect to Allin's discharge, we shall defer action on the reinstate- ment and backpay aspects of the remedy therefor pending the outcome of the reopened hearing and issuance of the Supplemental Trial Examiner's Decision. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Roy L. Burnham, a sole proprietor, d/b/a Bob's Ambu- lance Service, Oakland, California, his agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Strike from paragraph 2(a) of the Trial Ex- aminer 's Recommended Order the name Milton Al- lin. 2 John F Cuneo Company, 152 NLRB 929 See also Fibreboard Paper Products Corporation, 180 NLRB 142 183 NLRB No. 95 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Strike the name Milton Allin from the fourth indented paragraph of the Appendix. IT IS HEREBY ORDERED that the record in this proceeding be, and it hereby is, reopened and that a further hearing be held before Trial Examiner Herman Corenman for the limited purpose of receiving evidence bearing on the suitability for reinstatement of Milton Allin and his entitlement to full or partial backpay. IT IS FURTHER ORDERED that the proceeding (in- sofar as the question of Allin's suitability for rein- statement and/or backpay is concerned) be, and it hereby is, remanded to the Regional Director for Region 20 for the purpose of arranging such further hearing, and the said Regional Director be, and he hereby is, authorized to issue notice thereof. IT IS FURTHER ORDERED that, upon conclusion of such further hearing, the Trial Examiner shall prepare and cause to be served on the parties a Supplemental Decision containing findings of fact upon the evidence received with respect to Allin's entitlement to reinstatement and/or backpay and such conclusions of law and recommendations as he may deem appropriate. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Trial Examiner: Upon a charge filed on June 2, 1969, by Elgin Smith, an in- dividual, the Genral Counsel for the National Labor Relations Board `issued a complaint on August 27, 1969, against Roy L. Burnham, a sole proprietor, d/b/a Bob's Ambulance Service, herein referred to as the Respondent, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, hereinafter referred to as the Act. An answer filed by the Respondent denied that it was engaged in commerce and in operations affect- ing commerce within the meaning of the Act and further denied the commission of any unfair prac- tices. Pursuant to notice, a hearing in the matter was held at San Francisco, California, on January 9 and February 10, 1970, before the Trial Examiner. The parties were afforded full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, and to file briefs. Briefs filed by the General Counsel and the Respondent have been carefully considered. Upon the entire record, including briefs of the General Counsel and the Respondent, I make the following. FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Upon the stipulation of the General Counsel and the Respondent on the record, I find that the Respondent operates an ambulance service in and about Oakland, California. During 1968, the Respondent received approximately $235,000 gross revenues from the following services: (1) from the general public $138,000; (2) from Kaiser hospitals $90,000; (3) from Southern Pacific hospitals $3,000; and (4) from the city of Oakland $4,000. Respondent transports patients to and from two Kaiser hospitals, one in Oakland, California, the other in Hayward, California, each of which an- nually purchases goods valued in excess of $50,000 directly from outside California. Each of these Kaiser hospitals annually receives gross revenues in excess of $250,000. Upon the basis of the foregoing facts, I find that the Respondent at all times materi- al herein has been, and is, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. The Board, after careful consideration of the Respondent's business operations in the representa- tion matter, found it would effectuate the purposes of the Act to assert jurisdiction over the Respon- dent. See Bob's Ambulance Service, 178 NLRB 1. II. THE LABOR ORGANIZATION INVOLVED Upon the stipulation of the parties, I find that Hospital & Institutional Workers, Local 250, Ser- vice Employees International Union, herein called the Union, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues At issue is the question whether (1) the Respon- dent, in violation of Section 8(a)(1) and (3) of the Act, discharged employees David Shears, Frederick D. Rodrigues, Elgin Smith, and Milton (Skip) Allin because of union and/or other protected concerted activities; and (2) whether the Respondent, in violation of Section 8(a)(1) of the Act, inter- rogated employees concerning their union member- ship and created the impression that the Respon- dent was engaging in surveillance of their union ac- tivities. B. Background Events Respondent, under the ownership and manage- ment of Mr. and Mrs. Roy Burnham, operates an ambulance service in Oakland, California, serving the East Bay area. Union organization among the Respondent's ambulance drivers and attendants was initiated in December 1968 on behalf of Hospital & Institutional Workers, Local 250, Ser- vice Employees International Union. In January or February 1969, ambulance driver Elgin Smith passed out union authorization cards among the BOB'S AMBULANCE SERVICE employees. Smith turned eight signed cards over to the Union. On January 24, 1969, the Union filed a petition with the Board in Case 20-RC-8602 seek- ing a representation election for a unit of ambu- lance drivers and attendants. In the representation case , the Respondent contested the Board's ju- risdiction over the Respondent. A hearing was held' before a Hearing Officer of the Board at San Fran- cisco, on February 24, 1969, and, presumably because of the novel question concerning the Board's jurisdiction, the issue was not decided by the Board in Washington until July 1969, when it issued its Decision and Direction of Election after the events alleged herein to constitute unfair labor practices had already taken place. C. The May 31, 1969,' Evening Dinner Meeting at Burt's Home Ambulance driver Elgin Smith and his attendant, Leland Sebring, were on duty on Saturday, May 31. They had been scheduled to work that 48-hour weekend from 6 p.m. Friday to 6 p.m. Sunday. Returning to the Oakland office in the ambulance after a call, they received a message about 6 p.m. on Saturday, May 31, to go to Wes Burt's2 home for dinner. Smith and Sebring drove in the ambulance to Burt's house for dinner. There they joined the two other employees who manned the other ambu- lance on duty that 48-hour weekend, namely Mil- ton (Skip) Allin and Fred Rodrigues. During the course of the dinner, Wes Burt, the host who was off duty that weekend, initiated a discussion among the four men concerning their dissatisfaction with working conditions, hours, and pay with the Respondent. The men aired their discontent with the following working conditions: (1) their opinion that their sleep was too frequently interrupted so as not to afford them sleep for adequate intervals; (2) their being required to miss meals and to eat at ir- regular hours so as to take ambulance calls; (3) un- comfortable bunks and mattresses;' (4) wages were too low; and (5) men were not adequately informed by check stubs as to their regular and overtime hours and pay with the consequence that they felt their pay was not being properly computed.4 A vote was taken among those present on whether to strike or not. Sebring, being a new man who had just started working and having no grievances, decided not to join the walkout. The other four, namely Burt, Smith, Allin, and Rodrigues, voted 3 to 1 to strike, and Rodrigues, All dates are in the year 1969 unless otherwise specified ' Wes Burt was an ambulance driver who was off duty and not scheduled to work that weekend ' As the men are on duty for long stretches covering, for example, 48 hours or more at a time, they are furnished beds and other facilities at the office where they can rest or relax between ambulance calls Elgin Smith credibly and without contradiction testified that over a 2-year period he had complained to the Burnhams about frequent sleep interruptions, in- adequate time for meals and conditions in general on three or four occa- sions Their reply was "That 's the way an ambulance is run - if you don't 963 who voted against the strike , agreed to go along with the vote of the majority . The men agreed to lock up their ambulances at 8 p . m. and to notify the answering service of their action . They drove their ambulances to the downtown office where Smith notified the answering service that both ambulances were going to cease operation and the men were going on strike. When the answering service asked "why," Smith replied , "Due to conditions in general ." The answering service called the Burn- hams , who were spending the Memorial Day weekend with their family at Lake Tahoe, and gave them the message . About 8 p.m. Saturday night, May 31 , Rodrigues received a phone call at the downtown office from Burnham. During the course of this phone conversation, Rodrigues told Burnham that the "fellows are pulling a walk -off strike ." Burnham asked "How can you do this to me-all the favors that I have done for you." Rodrigues replied , " Well, I think this is the only way that you are going to realize that conditions are poor down here ." Burnham asked Rodrigues to talk to the men and see if they would stay until the weekday crew would report for duty at 6 p . m. Sunday . While Burnham remained on the line , Rodrigues inquired of the others about remaining at work till 6 p.m. Sunday . They refused and Rodrigues told Burnham that " they felt that the grievances they had , had been mentioned many times over in other discussions-that they thought this was the only way to get any sort of action." Rodrigues promised Burnham that he himself would work until 6 p.m. Sunday if Burnham would meet with the men Sunday at 6 p . m., and Burnham so agreed . Burnham told Rodrigues to work with' Wes Burt on one of the ambulances and that he would contact Malone to drive the other ambu- lance . However , Rodrigues testified he did not work with Burt because he (Burt ) was too intox- icated . Burt's brother , who had been to the dinner party , drove Burt home . Sebring, the new man, stayed on the job with Malone until the end of the shift at 6 p.m. Sunday . The others, namely Rodrigues , Allin, and Smith , left the job some time around 8 p.m. Saturday night, May 31. D. The Discharges of Smith, Allin, Rodrigues and Shears at the Sunday , June 1, Meeting I see no need in this paragraph to detail all the conversation that occurred at the Sunday , June 1, meeting which had been scheduled during the like it, take off " David Shears, credibly and without contradiction, testified that on one occasion in April 1969 "he had worked 4 days straight without sleep After almost dropping a patient down the stairs , he called Mrs Burnham and told her that he hadn't slept for 4 days and hadn 't eaten but two meals " According to Shears, Mrs Burnham replied, "What the hell do you expect me to do, make the calls for you " ' Mrs Burnham concedes that , although the employees ' paycheck stubs show straight time and overtime pay, they do not show the number of hours worked 427-258 O-LT - 74 - 62 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phone conversation between Rodrigues and Burn- ham the preceding Saturday. It is sufficient to note that Allin, Smith, Burt, Rodrigues, and Shears at- tended this June 1 meeting with Mr. and Mrs. Burn- ham. The Burnhams told Malone and Sebring to leave before the meeting got under way as they had not been involved. Essentially what transpired at the meeting was this. The Burnhams told the group that their walkout was illegal if they were represented by a union and that they were going to consult their attorney about taking legal action. The men were interrogated concerning their union membership. The men started to air their grievances to the Burnhams but were not given much opportunity to speak. When Shears spoke up on grievances concerning pay and interrupted rest, Mrs. Burnham told him he was not involved in this matter as he left the job Thursday, May 29. Smith, Allin, and Rodrigues were told by the Burnhams that they had terminated their employment by walking off the job the previous evening. The Burn- hams instructed Smith, Allin, Rodrigues, and Shears to hand over their ambulance driver permits (blue cards); they were handed their final paychecks which had been prepared in advance of the meeting; and they were told by the Burnhams to "get out." Burt , who had been off duty the previous day according to schedule, was instructed by the Burnhams to report to work the next morning. It is clear , and I find, (1) that Smith, Allin, and Rodrigues , acting in concert, left their jobs on Saturday evening , May 31, to protest working con- ditions discussed at the Saturday, May 31, dinner meeting at Burt 's house; (2) that on May 31, through Rodrigues,5 they notified the Burnhams by phone that they would remain on strike in protest of these working conditions until their agreed-upon meeting with the Burnhams at 6 p.m. Sunday, June 1; (3) that they met with the Burnhams to discuss their grievances on June 1; (4) that the Burnhams discharged Smith, Allin, and Rodrigues at the June 1 meeting because they had walked off on May 31; and (5) that the walkoff of May 31 was a protected concerted activity within the meaning of Section 7 of the Act. I have therefore concluded that the Respondent, by discharging Smith, Allin, and Rodrigues on June 1, coerced and restrained employees in the exercise of rights guaranteed by Section 7 of the Act. The Respondent thereby violated Section 8(a)(1) of the s In this phone conversation , Rodrigues promised Burnham he would stay on the job, but, in concert with Smith and Allin, he did not work ' Contrary to the General Counsel's contention , I do not find that the Respondent 's discharges of Smith, Allin, and Rodrigues violated Section 8(a)(3) of the Act The evidence is clear that the discharge was the con- sequence of their May 31 walkoff and was unrelated to the representation petition that was then pending before the Board , or the union membership or nonmembership of the three employees in question or their union activi- ty Indeed, in discharging these three employees , the Burnhams were under the impression that their conduct was illegal because it was not sanctioned by the Union ' Respondent 's witness Sebring testified that in the Saturday, May 3 1, Act.6 N.L.R.B. v. Washington Aluminum Company, 370 U.S. 9 (1962); Electromec Design and Develop- ment Company, Inc., 168 NLRB 763, enfd. 409 F.2d 631 (C.A. 9); B & P Motor Express Incor- porated, 171 NLRB 1289; Delsea Iron Works, Inc., 136 NLRB 453, enfd. 316 F.2d 231 (C.A. 3). The Respondent, in support of its contention that the men's leaving the job amounted to an unpro- tected "quit," points to the testimony of Sebring who testified that, at the Saturday evening, May 31, dinner conversation, Allin said, "he really didn't need the job; he could work elsewhere" and that Smith said "something concerning commuting from San Jose; it was a long drive. He could work closer or find other work-if Mr. Burnham wouldn't meet their demands, they didn't need the job." Arguing in similar vein, the Respondent points to the fact that following the Saturday, May 31, walkout, Allin phoned Mr. Russio of the Acme and Western Am- bulance Service and inquired if he had any openings for drivers. I see nothing in Sebring's testimony' or in Allin's phone call to Russio8 which refutes the clear fact that the Saturday night walkoff was a protected concerted activity for mutual aid and protection within the meaning of Section 7 of the Act. Un- doubtedly the availability of other work, or the un- desirability of the present job because of commut- ing problems, or the lack of need for the job, are matters which it is expected will influence and em- ployee's decision to take strike action with its atten- dant risk of loss of employment through legitimate replacement or illegal discharge. Additionally, a striker may in the meantime inquire about employ- ment without prejudice to his rights as a striker. A strike does not lose its protected status because the strikers are not greatly enamored of their jobs or because they inquire about employment elsewhere. E. The Discharge of David Shears Shears had been employed by the Respondent since January 1969, first as an attendant and later as an ambulance driver. He worked full time. Shears was anxious to be scheduled as off duty for the Memorial Day weekend beginning at 6 p.m. Thursday, May 29. He learned about 6 p.m. from the posted schedule that he had been scheduled to dinner conversation preceding the decision to walk out, Allm said, "he really didn't need the job, he could work elsewhere", and,that Smith said about the same thing, he could find other work Sebring also testified that in this dinner discussion it was said by Smith and AIIin, "If Mr Burnham wouldn't meet their demands, they didn 't need the job " ' After the decision to walk out Saturday, May 31, AIIin phoned Russio, who operated a competing ambulance service and inquired if he had any openings for drivers Allin told Russio that they were pulling a walkout strike and he didn't know "whether or not I would have my job much longer " Russio told Allin to come in Monday and file an application but he couldn't promise him anything BOB'S AMBULANCE SERVICE 965 work that weekend.' He picked up his regular paycheck and believed he was shorted $60 to $70.10 At approximately 6 p.m. May 29, he called the an- swering service and asked to talk to Burnham. The answering service could not reach the Burnhams but would not give Shears the Burnhams' phone number in Tahoe where they were vacationing over the Memorial Day weekend. Shears told the an- swering service that he was going to take off for the weekend and would be in Monday to talk to Burn- ham about the alleged discrepancy in his paycheck and also about his not getting off for the weekend. Shears then left work without permission. Shears admitted that he had walked off his job without permission once before but Burnham had given him his job back later. Mr. Malone, the chief driver, phoned the Burnhams at Tahoe on Thursday, May 29, and reported to Mrs. Burnham that Shears had left the job, telling him (Malone) that he (Shears) thought he had as much right to the 3-day weekend as Mr. Simmons, so he (Shears) was taking off too. Shears came to the office at 6 p.m. Sunday, June 1, just before the scheduled meeting started when he learned from Smith that the men were going to take up some grievances with the Burnhams. Shears agreed to go in to the meeting with the group. Shears testified that the men's grievances were discussed at this Sunday meeting. Shears testified credibly that Burnham picked up his blue card as well as others at this meeting, handed out their final checks which had already been prepared, and then said "get out." Mrs. Burnham credibly testified that the only em- ployee in the Sunday evening meeting group who said anything about grievances concerning rates of pay, bunks, etc., was Shears, and at this time the Burnhams told Shears that he did not have the right to say anything since, in their opinion, "he was not involved in this; he had walked off the job on Thursday night, which was a different matter." Shears believed that he was entitled to be off the 3-day Memorial Day weekend because he had worked the previous 9 days straight. The timesheets stipulated in the record show, however, that Shears was off on Saturday, May 24. Additionally, Mr. Malone testified, and Shears denies, that on Thursday, May 29, he told Shears that he was scheduled to work the next day but would be off the next weekend. "Roy (Burnham) was going to give him three days off over the Fourth of July."" Burnham testified, and I so find, that he determined to fire Shears when it was reported to him on May 29 by Malone that Shears had left the job without permission. It is pointed out that Shears was not a member of the group who walked out on Saturday, May 31, to protest working conditions. His action in leaving his job on Thursday, May 29, was his individual deci- sion and was not in concert with other employees. His leaving the job was not protected by Section 7 of the Act. As a consequence, the Respondent was at liberty to discharge him without violating the Act. An employer may discharge an employee for good reasons or bad reasons as long as it is not for any reason prohibited by the Act. There is no evidence that Shears was discharged for union membership or activity or concerted activity. There is no evidence that he joined the Union. On the contrary, Shears testified that he did not sign a union card and that he so told Burnham at the June 1 meeting in which he was discharged. I am convinced, and I find, that Shears was discharged for cause, namely for leaving his job without permission on Thursday evening , May 29. He was not discharged for any reason that would constitute an unfair labor practice. I therefore recommend that the complaint be dismissed insofar as it alleges that David Shears' discharge violated the Act. F. Alleged Interrogation and Impression of Surveillance The General Counsel contends, as the complaint alleges, that at this Sunday, June 1, meeting at the Respondent's office the Burnhams (1) inter- rogated employees concerning their membership in, and activities on behalf of, the Union and (2) created the impression that Respondent was engag- ing in surveillance of their union activities. The question concerning the employees' union representation was injected intd the meeting by the Burnhams' apparent misconception concerning the correlative rights of the employees and themselves. In her testimony, Mrs. Burnham admitted that she told the employees that, if they were represented by a union , the Burnhams couldn't speak to them at all, but would have to consult their attorney. She further told the employees that, if they were represented by a union, they had pulled an illegal strike, and she was going to have her attorney take legal action. Mrs. Burnham testified that she said to the group, "Do you realize that we feel that by your walking off your job as you did, that you have terminated your employment," to which, according to Mrs. Burnham, Allin replied as follows: No we don't feel that way-we think we have called a strike, and I said, I don't un- e Mrs Burnham testified that Shears was scheduled to work until 6 p in Friday, May 30 10 There is no evidence in the record to show that Shears had in fact been shorted in his pay 11 1 do not consider it essential to a determination of the issue raised by Shears' discharge to make a credibility determination on this alleged con- versation between Malone and Shears which Shears denies 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD derstand-you tell me you are not represented by a Union. Smith said , "Well we have signed up with the union but we haven 't heard anything from them since we signed up-so that we figure that maybe now; we will hear something ." At this point , according to Mrs. Burnham , Mr. Burnham then told the group that he knew some of them were union and, ac- cording to Mrs. Burnham , Rodrigues said yes, Shears said no, and Allin and Smith said yes, when Mr. Burnham pointed his finger at-some of the men and said " You are." It is clear , on the basis of Mrs. Burnham's testimony alone , that Mr . Burnham interrogated employees concerning their union membership, while at the same time telling some of the em- ployees he knew they were members . In the context in which this interrogation occurred , namely in an atmosphere in which employees were being threatened with legal action and were being discharged for concerted activitiy , I find that this interrogation and accompanying statements giving an impression of surveillance , coerced employees in the exercise of their rights to union organization guaranteed by Section 7 of the Act. By this con- duct, I find , the Respondent violated Section 8(a)(1) of the Act . Standard Electric Co ., Inc., 163 NLRB 1045, 1047; Struksnes Construction Co., Inc., 165 NLRB 1062 ; Walton Manufacturing Company, 124 NLRB 1331 ; Hoffman-Taff, Inc., 123 NLRB 1462, 1463. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above , occurring in connection with the Respondent 's operations described in section I, above , have a close , intimate , and substantial rela- tionship to trade , traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that Respondent discharged and refused to reinstate the above-named Smith , Allin, and Rodrigues , in violation of Section 8(a)(1) of the Act, I will recommend that Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make them whole for any loss of earnings each may have suffered as a result thereof, by payment of a sum of money equal to that which each normally would have earned as wages from the date of discharge to the date of Respondent's offer of reinstatement , less net earnings during such period , with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. ' Woolworth Company , 90 NLRB 289, and Isis Plumbing & Heating Co ., 138 NLRB 716. Upon the foregoing findings of fact and upon the entire record , I hereby make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital & Institutional Workers , Local 250, Service Employees International Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Elgin Smith , Milton Allin, and Frederick D. Rodrigues , on June 1, 1969 , because they had engaged in protected concerted activities for their mutual aid and protection , Respondent has engaged , and is engaging , in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By interrogating employees concerning their union membership and giving them the impression that Respondent was engaging in surveillance of their union activities, the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8 ( a)(1) of the Act. 5. The Respondent has not engaged in any other unfair labor practices. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and ( 7) of the Act. RECOMMENDED ORDER Respondent , Roy L . Burnham, a sole proprietor, d/b/a Bob 's Ambulance Service , its agents , succes- sors , and assigns , shall: 1. Cease and desist from: (a) Interfering with , restraining , or coercing its employees in the exercise of their rights to engage in concerted activities guaranteed in Section 7 of the Act , by discharge or by any other disciplinary action. (b)" Interrogating employees concerning their union membership or giving the impression that Respondent is engaging in surveillance of their union activities. (c) In any like or related manner interfering with , restraining , or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: BOB'S AMBULANCE SERVICE (a) Offer to Elgin Smith, Milton Allin, and Frederick D. Rodrigues immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make each whole for any loss of pay suffered by reason of their discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon 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 Recommended Order.. (c) Notify the above-named employees, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post at its place of business in Oakland, California, copies of the attached notice marked "Appendix."" Copies of said notice, on forms pro- vided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.13 (f) The 8(a)(3) allegations in the complaint are dismissed as is the allegation that David Shears' discharge constituted an unfair labor practice. 12 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's 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 be changed to read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " IS In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read " Notify the Regional Director for kegion 20, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 967 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT discharge, or in any other manner penalize, our employees for engaging in protected concerted activities for their mu- tual aid and protection. WE WILL NOT interrogate our employees concerning their union membership or give them the impression their union activities are under surveillance. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of their rights guaran- teed by Section 7 of the Act. WE WILL offer to Elgin Smith, Milton Allin, and Frederick D. Rodrigues immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each whole for any loss of earnings suf- fered as a result of their discharge. Roy L. BURNHAM, A SOLE PROPRIETOR, D/B/A BOB'S AMBULANCE SERVICE (Employer) Dated By (Representative) (Title) Note: We will notify immediately the above- named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 13050 Federal Building, 450 Gol- den Gate Avenue, Box 36047, San Francisco, California 94102,'Telephone 415-556-0335.