City Wide Ambulette, Inc

National Labor Relations Board - Board Decisions

Oct 22, 1984

272 N.L.R.B. 882 (N.L.R.B. 1984)

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
City Wide Invalid Service, Inc a/k/a City Wide
Ambulette, Inc and Local 531, International
Brotherhood of Teamsters, Chauffeurs, Ware
housemen and Helpers of America Case 2-CA-
19869
22 October 1984
the complaint alleges various acts of independent viola
lions of Section 8(a)(1) of the Act
On the entire record including my observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by the General Counsel and Respondent
I make the following
FINDINGS OF FACT
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 29 June 1984 Administrative Law Judge
Edwin H Bennett 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,' and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent City Wide
Invalid Service Inc , a/k/a City Wide Ambulette,
Inc New York, New York, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order
1 The Respondent has excepted to some of the judge s credibility find
nip 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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
DECISION
STATEMENT OF THE CASE
EDWIN H BENNETT Administrative Law Judge This
proceeding was heard in New York New York on
April 9 and 10 1984 on a complaint and notice of hear
ing which had issued on October 28 1983 The unfair
labor practice charge which led to the complaint had
been filed by Local 531 International Brotherhood of
Teamsters Chauffeurs Warehousemen and Helpers of
America (Union) on September 8 1983 The substance of
the complaint is that City Wide Invalid Service Inc
a/k/a City Wide Ambulette Inc (Respondent or Em
ployer) unlawfully refused to meet and bargain with the
Union since about August 15 1983 and unlawfully dis
charged Peter Green about July 11 1983 In addition
I JURISDICTION
The Employer incorporated under New York law
maintains its office and place of business in the city and
State of New York where it is and has been engaged in
the transportation of physically handicapped passengers
and school children to and from medical offices and hos
pitals In the course and conduct of its business oper
ations the Employer annually provides services valued
in excess of $50 000 for other enterprises within the State
of New York including Metropolitan Hospital which
enterprise itself is engaged directly in interstate com
merce with a dollar volume of business sufficient to satis
fy a Board standard for the assertion of junsdiction ex
clusive of an indirect outflow or inflow standard The
Employer admits that it is an employer engaged in corn
merce within the meaning of Section 2(2) (6) and (7) of
the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act and I so
find
II THE UNFAIR LABOR PRACTICES
The Employer was organized in 1975 by Arnold
Boyce who was the principal owner and its chief operat
ing officer He was assisted by his wife Ruby and by a
daughter Valerie Boyce Roseburgh all of whom served
as the board of directors Starting in 1980 Valerie devot
ed herself full time to the affairs of the corporation In
September of that year she assumed the office of presi
dent and secretary while Arnold and Ruby s time and
efforts declined Arnold s health became an increasingly
serious problem (he suffered from blindness diabetes
heart kidney and prostate ailments) resulting in an ever
decreasing ability to physically attend to the business
Between the summer of 1982 and Arnold s death in Oc
tober 1983 he spent a total of 3 or 4 months in the hos
pital and could attend the office no more than once a
week often staying away weeks at a time Valerie had
full authority to manage the day to day operation of the
business Thus she signed rent and other checks paid
bills executed the only commercial contract entered into
by Respondent after 1981 (an agreement to provide
transportation services for Washington Heights Mental
Center) and assigned and scheduled all work She did
however consult with her father either in the hospital
or at home and obtained approval from him or from her
mother for some business decisions
In January 1983 1 the Respondent employed six or
seven ambulette and van drivers and attendants includ
mg driver Peter Green In that month Green contacted
the Union for the purpose of obtaining representation
' Unless otherwise indicated all dates hereinafter are in 1983
272 NLRB No 131
CITY WIDE AMBULETTE INC 883
and was given authorization cards for distribution to his
fellow employees In the succeeding months he success
fully solicited signed cards from the other employees
which cards either were returned directly to the Union
or to Green who then forwarded them to the Union
On May 20 the Union filed a petition for Certification
of Representative in Case 2-RC-19545 listing the bar
gaining unit as consisting of six drivers On May 31 the
parties signed a Stipulation for Certification Upon Con
sent Election pursuant to which an election was conduct
ed on June 21 which was won by the Union On June
29 a Certification of Representative was issued to the
Union as the exclusive collective bargaining representa
tive for all of Respondent s full time and regular part
time drivers and attendants
A The Refusal to Bargain
On July 12 Louis DeAngelis the Union s president
wrote to Respondent requesting a meeting to commence
negotiations Respondent did not reply so shortly there
after DeAngelis telephoned Valerie Boyce and arranged
for a meeting which was held on August 9 attended by
Boyce DeAngelis and several other union representa
tives According to the credited and underned testimony
of DeAngelis he made several economic proposals for
inclusion in a collective bargaining agreement Boyce re
plied that she was present only to listen to the Union s
proposals and not to negotiate She would she said re
spond to the Union in the future In addition the subject
matter of Green s discharge on July 11 was raised by the
Union and DeAngelis asked for an explanation so that
the Union could consider whether or not to file a gnev
ance on Green s behalf Again Boyce promised that a de
tailed response would be forthcoming
4 By August 15 Respondent had not replied to the
Union or made any effort to contact it Therefore on
that date the Union mailed Respondent a proposed col
lective bargaining agreement and suggested that the par
ties meet on August 30 Boyce also was requested to
verify the meeting and to raise any questions it wished
concerning the proposals Respondent made no reply to
this letter nor to DeAngelis several telephone calls
made in an effort to reach Boyce Finally on September
7 DeAngelis again wrote to Valerie Boyce He recount
ed the attempts of the Union to elicit a response to its
bargaining demands He noted that messages had been
left with her office on numerous occasions and that no
reply to the Union had been made He reminded her that
his request for information concerning the discharge of
Green had been ignored DeAngelis wrote that in view
of the seeming unwillingness to acknowledge the pres
ence of the Union unfair labor practice charges would
be filed regarding Green s discharge and the refusal to
bargain The letter concluded by inviting Respondent to
contact the Union to discuss any of the matters referred
to therein
DeAngelis testified credibly and again without denial
that between the August 15 letter and December he
placed approximately 11 telephone calls to Respondent
asking to speak to Boyce none of which were returned
On February 22 1984 DeAngelis again wrote to Valerie
Boyce proposing four specific dates for meetings in the
month of March 1984 and expressing the hope that not
withstanding the pendency of the charge she would
make a positive response However as with all previous
overtures for meetings this request similarly was ignored
by Respondent
It is undisputed that as of the date of the hearing Re
spondent at no time made any response whatsoever to
the Union s numerous requests to meet and bargain a col
lective bargaining agreement Indeed at no time did Re
spondent so much as hint to the Union any explanation
for its refusal to meet with it to furnish information re
garding Green s discharge or to return a single phone
call
In its answer and brief Respondent states that it failed
to meet and bargain because Arnold Boyce was seriously
ill and that Valerie Boyce could not bind Respondent
without his authonty At the hearing however Valerie
Boyce who appeared as Respondent s witness was not
questioned about nor did she offer evidence to support
the assertion that her authority to bargain was limited
Nor did she explain why as president and secretary of
the corporation she lacked such authority Further
there is not the slightest bit of evidence as to what ef
forts if any were made to secure Arnold Boyce s au
thonzation and his reaction thereto
The record also is quite clear that Valerie Boyce s lack
of authority as an impediment to bargaining never was
communicated to the Union In addition Respondent
failed to explain Ms Boyce s broken promises to consid
er the Union s demands and reply to them The record
similarly is silent as to why Arnold Boyce was unable to
grant whatever authority or approval his daughter re
quired notwithstanding his ill health For as discussed
below he was quite capable of communicating his an
tiunion sentiments to Peter Green and of acting decisive
ly in discharging Green because of his union activities
Finally Respondent offered no explanation at the hear
ing in its answer or in its brief for its continued failure
to meet with the Union following the death of Arnold
Boyce in October 1983
On the other hand the record affirmatively demon
strates as noted above that Valerie Boyce not only held
the titles of president and secretary of the corporation
but gave every indication of acting within the scope of
the authority normally associated with those titles Addi
tionally in December 1982 Arnold Boyce held a meet
ing with the drivers and told them Valerie was in charge
and that they must take their orders from her This meet
ing apparently vlias occasioned by the drivers having
balked at accepting her directives After the meeting
however her orders were unquestioned
B The Discharge of Peter Green
Green was employed as an ambulette driver from July
1975 to the date of his discharge July 11 1983 He was
the most senior of six such drivers at the time of dis
charge Valerie Boyce conceded that she was satisfied
with his performance on the job He had an unblemished
work record there being no evidence of employer corn
plaints reprimands or dissatisfaction of any sort He ap
pears to have been the only driver who was a recipient
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a letter of commendation from any patient In Decem
ber 1982 a patient wrote the Employer praising Green
for his courteousness and his driving capability
In January 1983 Green determined that unionization
would be beneficial to the drivers and it was he who
contacted the Union for the purpose of organizing the
employees As recited above Green was the inside union
organizer and the only employee active in the organizing
campaign which led to issuance of the Certification of
Representatives on June 29 1983
According to Green s underned and credited testimo
ny Valerie Boyce spoke to him about union activity on
several occasions In March 1983 she called him into her
office and spoke to him for 5 to 10 minutes Boyce said
she heard that a union was organizing the drivers and
wanted to know what Green knew about this union ac
tivity Green replied that he had no knowledge of such
activity About a month later again in Respondent s
office she asked him if he had heard of a union repre
sentative visiting the drivers at hospitals attempting to
get them to join He replied he had heard of such activi
ty Green also testified that following the election on
June 21 he volunteered to Valerie Boyce that he voted
against the Union Green did this because of a rumor
that he had been identified as the union organizer
On May 23 while dnving the van he was contacted
on the two way radio by Valerie Boyce who instructed
him to telephone Arnold Boyce at home In the ensuing
phone conversation Arnold Boyce asked Green what he
knew about the formation of a union to which Green re
plied Nothing Boyce responded that if a union suc
ceeded in organizing the drivers he would close the busi
ness He also told Green he was going to fire the em
ployee who was doing the organizing 2 About a week
later Green and Arnold Boyce had another conversation
concerning union activity at the Employer On this occa
sion Green was driving Boyce to his home from the
hospital which about that time was a fairly frequent oc
currence Boyce again asked Green what he knew about
the attempts to organize the men and Green again denied
any knowledge of such union activity Boyce repeated
his earlier statements about closing the business rather
than deal with a union He explained to Green that he
did not want any outsiders telling him how to run his
company Boyce also restated the threat to fire the union
organizer
On July 1 Green left for a regularly scheduled vaca
tion Valerie Boyce testified that very shortly thereafter
her father told her he had decided to fire Green He dic
tated a letter to Valerie which she typed and signed for
2 I received into evidence this and other conversations attributed to
Arnold Boyce who was deceased at the time of the hearing over the
objections of Respondent The Board has long ruled that such evidence
can be considered although It is subject to very close and careful scruti
ny The Board has cautioned that such evidence should not be relied on
unless it is confirmed by clear and unambiguous evidence of a compelling
nature Custom Coated Products 245 NLRB 33 35 (1979) Calandra
Photo Inc 151 NLRB 660 669 (1965) Green s testimony regarding
Arnold Boyce s remarks meets this stringent standard and 1 accord full
credence to the testimony As discussed more fully below Arnold
Boyce s remarks here are consistent with Respondent s entire course of
conduct designed to evade its statutory obligations
Arnold She dated it July 11 and mailed it to Green
The letter reads as follows
It is with regret that we have to inform you that we
can no longer use your services for the above corn
pany We have given serious consideration to all the
the ramifications of your illnesses including diabe
tes high blood pressure and periodic nose bleeds
We have decided that it can be dangerous for you
to continue driving under these conditions Also it
is dangerous for the patients who are being trans
ported and for pedestrians on the street
We are sorry to make this decision but we are
doing this in the best interest of everyone con
cerned
Arnold Boyce rarely was at work at this time and his
health so poor that Respondent urges his physical Inca
pacity as the excuse for not meeting with the Union
Indeed we are asked to believe that his deteriorated
state of health even precluded his being able to advise
his daughter with respect to bargaining Nevertheless
the decision to discharge Green was made solely by
Arnold who did not so much as discuss the basis for this
action with Valerie who as we have seen was then in
charge of day to day operations Valerie Boyce s testi
mony that she did discuss the discharge with her father
is discredited as it conflicts directly with her pretrial affi
davit and is inconsistent with her own testimony to the
effect that her father was responsible for the decision
Following receipt of the letter Green telephoned Val
ene Boyce and asked her if he was being fired because
of his union activities or health reasons Valerie declined
an answer and referred him to Arnold Boyce Green
telephoned Arnold Boyce and asked the same question
Boyce replied abruptly that the decisision had been made
and he refused to discuss it further
We turn then to examine the facts with respect to
Green s medical conditions relied on in the July 11 letter
as the reasons for his discharge Green readily conceded
that he was a diabetic and was afflicted at one time or
another with hypertension back problems dizziness and
nose bleeds Nose bleeding however assuming that it
ever was a problem ceased to be a concern at all after
July 1982 when the problem was medically corrected
From that date on it could not and simply did not exist
and there is not a shred of evidence to the contrary
With respect to his diabetes that condition was present
at the time he was hired and it was a matter known to
Arnold Boyce from the inception of Green s employ
ment Furthermore there is no evidence that Green s di
abetes adversely affected his job performance and at least
one other driver/attendant Dudley Jordan also is a dia
bete He also is Arnold Boyce s brother in law
As with his diabetes Green also was afflicted with hy
pertension i e high blood pressure throughout his em
ployment But again the record simply fails to disclose
any nexus between this medical condition and a job
problem of any kind Furthermore this condition was
under medical supervision and control and if anything
had been a source of concern to Respondent earlier in
CITY-WIDE AMBULETTE, INC

885
Green's employment. Thus, in March 1978, Green sub-
mitted a medical certificate to the effect that his hyper-
tension and diabetes rendered him unemployable at that
time. It appears, nevertheless, that he continued to work.
In any event, however, in December 1978, a second
medical certificate was produced, at the Employer's re-
quest, attesting to the fact that both conditions had
become stabilized and that he was progressing satisfacto-
rily. There is not the slightest indication in the record
that the Employer subsequently harbored any doubts
whatsoever about Green's medical problems in so far as
they may have affected his employability.
In her testimony, Valerie Boyce completely failed to
explain or expand on the basis for the discharge and it
was stipulated that neither traffic accidents nor traffic
violations played any part in the Respondent's decision
to discharge Green. It appears that the sole supporting
explanation is the argument in Respondent's brief that
Green had an excessive absentee record and that this
demonstrates he was medically unfit for the job. Howev-
er, there is no evidence that whatever absences Green
had were attributed to any of the medical conditions re-
cited in the July 11 letter Further, the policy of the Em-
ployer was to grant five paid sick days a year and, in
1983, Green had used only 4-1/2 of these days with his
last absence having occurred on May 6. Finally, Green's
absentee record was an ever-improving one, for in 1982
he had been absent 10 days while in 1981 he had 18 ab-
sences.
c. Analysis
1 The refusal to bargain
The evidence in this case demonstrates an unrelenting
and persistent refusal by Respondent to acknowledge the
Union's status as the certified representative. Every
effort by the Union to hold a bargaining meeting, to
elicit a counterproposal, to secure information, and even
to receive a return phone call was ignored by Respond-
ent. It mattered not whether the Union's attempt was in
person, by mail, or by phone, the result was the same,
Employer silence Every effort was made by the Union
to bring the Employer to the bargaining table, going so
far as to offer to meet according to any schedule pro-
posed by the Employer. But even this simple request was
greeted by the Employer's silence.
Not having a valid reason for its refusal to bargain,
Respondent did not offer one to the Union. Although
Respondent's answer and brief assert that it was prevent-
ed from bargaining because of the illness of Arnold
Boyce, and the lack of authority by Valerie Boyce, it
neither communicated this to the Union nor offered evi-
dence at the hearing in support of such excuse. Whether
or not, under all the circumstances, this is a legally tena-
ble argument, need not be considered for the foregoing
and for the additional reason that Valerie Boyce was
possessed of sufficient authority to engage in meaningful
bargaining with the Union. Despite Arnold Boyce's inca-
pacity, she operated and managed this small family busi-
ness. She wrote checks, paid rent, extended Respondent's
credit, was a member of the board of directors, held the
office of president and secretary, and managed, directed,
and supervised the day-to-day operations of the business.
Indeed, it could not have been otherwise, inasmuch as
Arnold Boyce became very sick in the summer of 1982
and, from that time on made only infrequent appearances
at the office. He was hospitalized for 3 or 4 months,
rarely was present at the office, and died in October
1983. Certainly from that day on any asserted lack of au-
thority must be viewed as a sham. Although Arnold
Boyce may have continued to exercise managerial au-
thority, as witness the discharge of Green, it does not
negate Valerie Boyce's authority. Moreover, this demon-
strates that if Valerie required Arnold's approval for any
action, it could have been obtained.
The conclusion compelled by this record, therefore, is
that Respondent, without any legitimate justification, to-
tally has rejected the obligation to meet and bargain with
the Union as required by Sections 8(d) and 8(a)(5) of the
Act. Section 8(d) of the Act defines collective-bargaining
as "the mutual obligation of the employer and the repre-
sentative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours,
and other terms and conditions of employment." Re-
spondent has engaged in a blatant refusal to comply with
this obligation or even to acknowledge that the Union
exists as the certified collective-bargaining representative.
It is difficult to imagine a situation where a certified
union has been so ignored by an employer
Long ago the Board observed "it is elementary that
collective-bargaining is most effectively carried out by
personal meetings and conferences of parties at the bar-
gaining table. Indeed, the Act imposes this duty to
meet." United States Coal Storage Corp., 96 NLRB 1108
(1951), enfd. 203 F.2d 924 (5th Cir. 1953). And, the prin-
ciple that a certified bargaining representative is entitled
to, on its request, specific assurance of recognition as the
exclusive bargaining representative hardly requires cita-
tion it is so well settled. See, e.g., Mc Quay-Norris Mfg.
Co., 21 NLRB 709, 715-717 (1940), enfd. 116 F.2d 748
(7th Cir 1940), cert. denied 313 U.S. 565 (1940). By its
conduct, if not by its word, Respondent has defaulted in
its statutory obligation to accord the Union the full and
complete recognition to which it is entitled by the Act.
2. The discharge of Green
The evidence, much of it undisputed, concerning the
discharge of Peter Green compels a finding of violation
in much the same way as with respect to the refusal to
bargain. Although Respondent raises more of a "paper"
defense to this allegation, it is so flimsy and transparent
as to be legally nonexistent.
Green was the sole employee organizer and contact
with the Union. Between January and May 1983, he ac-
tively solicited authorization cards from the entire unit
and, through his efforts, the Union was certified in June
Prior to the filing of the petition in May, Green was sub-
jected to two instances of interrogation by Valerie Boyce
in her office during which he was questioned about his
knowledge of the organizing activity. Shortly after the
filing of the petition, Green was interrogated twice by
Arnold Boyce concerning his knowledge of the union
activity, questions which were coupled with threats of
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant closing and warnings that the employee organizer
would be fired As noted above, although Arnold Boyce
was deceased at the time of the hearing, I have credited
Green's testimony that Boyce made the statements be-
cause they fall within the pattern of other illegal activity
engaged in by Respondent including its hallmark 8(a)(5)
violation, and the underned interrogation committed by
Arnold Boyce's daughter Valerie. Thus, there is a strong
likelihood based on independent corroborating evidence
of a like nature that Arnold Boyce committed the acts
charged to him by Green. Coupled with the foregoing
evidence of hostility towards Green and the Union is the
fact that Green was discharged within days of the certifi-
cation, the last act in the sequence of union activities ini-
tiated by Green. The threat to discharge the employee
organizer thus bore fruit.
Although Respondent claims in its brief that it knew
not of Green's union activities, I note that Valerie Boyce
did not directly deny such knowledge. But, in any event,
the circumstantial evidence provides a substantial basis
for an inference of such knowledge in the absence of
direct evidence. The threats, the interrogation of Green;
the timing of the discharge without warning, the very
small complement of employees; the other violations, in-
cluding the refusal to bargain, thereby demonstrating
hostility towards the statutory rights of employees; the
pretextual excuse given for the discharge (see discussion
below), and the discharge of the only union activist; all
combine to provide the necessary inference. "The same
set of circumstances may be relied upon to support both
an inference of knowledge and an inference of discrimi-
nation." Coca-Cola Bottling Co. of Miami, 237 NLRB
936, 944 (1978) (and cases relied on therein) See also Ne-
braska Bulk Transport, 240 NLRB 135 (1979), affd as to
employee Miller 608 F.2d 311 (8th Or. 1979). Singling
out Green for repeated interrogations and directing the
discharge threats only to Green alone are acts sufficient
in themselves to warrant the inference that Respondent,
at least, suspected Green as the organizer. Accordingly,
the General Counsel has established a prima facie case
for a finding of discriminatory discharge. We turn then
to Respondent's asserted reasons for its firing of Green.
Respondent's discharge letter enumerates high blood
pressure (hypertension), diabetes, and nose bleeds, pre-
sumably all of which in combination, or perhaps sepa-
rately, constituted a danger to Green and to the public
and, as stated in the brief, it would have "been criminal
to expose innocent people and the public to the danger
of being killed or maimed." That Green was a diabetic
was known to Respondent from his first day of employ-
ment in 1975. How or why diabetes made him unem-
ployable, particularly after 8 years on the job, is no-
where explained in the record or in the brief How or
why Green's diabetes constituted a danger to the public
also is unexplained, especially in light of the continued
employment of Dudley Jordon who also drives an ambu-
lette, also has diabetes and, furthermore, is under medical
attention.
Respondent's reliance on Green's nose bleeding fares
no better This condition simillarly existed from the very
first day of his employment and again no explanation is
offered as to how or why that condition poses a danger
to the public or to Green. It particularly is baffling why
this is even mentioned given the fact that Green had the
condition surgically cured in July 1982, and has not suf-
fered from that situation since. We are left then with hy-
pertension as a justification for the discharge. There is
not a scintilla of evidence in this record to support the
Respondent's claim that Green's hypertension made him
medically unfit for employment. In fact, the record con-
tains no reliable medical evidence as to the severity of
his condition If Respondent's contention is to be accept-
ed then Respondent must be viewed as being criminally
negligent for having hired Green in 1975 and allowing
him to work while being so severely disabled.
The truth of course is that Green was as medically and
physically able to work in 1983 as he ever had been
during his employment by Respondent. Respondent's at-
tempt to demonstrate otherwise serves only to highlight
the tissue-thin nature of its defense. Thus, it points to a
medical record in 1978 that Green had poor health, but
ignores another record later that year attesting to the sta-
bilization of his condition and to his satisfactory
progress In any event, attempting to justify a discharge
in 1983 by reference to a 1978 document is itself an exer-
cise in futility, particularly as Respondent continued to
employ Green without complaint throughout the entire
period of time. Respondent's further attempt to support
its case by reference to Green's alleged poor attendance
record further demonstrates the incredible nature of its
defense. In 1983, Green had markedly improved on his
attendance in earlier years. He had not used the 5 days
of paid absence for sick leave permitted by Respondent's
policy, and his last absence had been in May 1983, about
2 months before the discharge. In its brief, Respondent
asserts that absenteeism as such was not the problem, but
rather that it was the reason for the absenteeism that was
material The short answer to that is there is absolutely
no proof that Green's absences, as few as they were,
were as a result of the three medical conditions given as
the reasons for the discharge. Be that as it may, his ab-
senteeism record was not shown to have been a link in a
chain of dangerous conditions nor as a problem in any
respect to Respondent.
It would be charitable, at best, to conclude the reasons
given for Green's discharge simply do not exist, and that
Respondent must be guilty, at the very least, of an arbi-
trary discharge. Of course, an arbitrary discharge does
not constitute a violation of the Act. But, having reject-
ed the Respondent's stated grounds as pretextual, we in-
quire whether or not the evidence furnishes the real
reason. As more fully elaborated above, this record
amply supports a conclusion that the decision to dis-
charge Green was motivated by his union activity which
led to the certification of the Union as the bargaining
representative By advancing an insubstantial, unreliable,
and almost nonexistent reason, Respondent has not met
the burden imposed on it to overcome the General
Counsel's prima facie case. The case at bar is a classic
example of the type of situation referred to by the Su-
preme Court in affirming the propriety of shifting the
burden of proof in discriminatory discharge cases. "The
Employer is a wrong-doer; he has acted out of a motive
CITY-WIDE AMBULETTE, INC. 887
that is declared illegitimate by the statute. It is fair that
he bear the risk that the influence of legal and illegal mo-
tives cannot be separated, because he knowingly created
the risk and because the risk was created not by innocent
activity but by his own wrongdoing" NLRB v. Trans-
portation Management Corp., 462 U S. 393 (1983); Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F 2d 899 (1st Cir
1981).
3. Interrogation and threats
Apart from the above violations the record also dis-
closes several instances of Independent 8(a)(1) violations
On four separate occasions, Green was asked by Valerie
and Arnold Boyce what he knew of the union activities
and who was responsible for them. On two of those oc-
casions Arnold Boyce coupled the questioning with
threats to discharge the union leader and to shut the
entire operation if the Union were successful in its orga-
nizing campaign. The Board in Rossmore House, 269
NLRB 1176 (1984), recently reiterated a case-by-case ap-
proach for determining whether or not an employer co-
ercively interrogates its employees within the meaning of
Section 8(a)(1) of the Act. Consideration is given to such
factors as the time and the place of the interrogation, the
management person involved, the information sought,
whether the interrogation occurred in an atmosphere
free of coercive conduct, whether it was isolated or sys-
tematic, the purpose behind the interrogation, truthfull-
ness of the reply, and whether or not the employee is a
known union adherent. After analyzing the various fac-
tors, a determination must be made as to whether or not
the conduct in issue may reasonably be said to have had
a tendancy to interfere with the free exercise of employ-
ee rights under the Act American Freightways Co, 124
NLRB 146, 147 (1959)
Applying the above tests inescapably leads to the con-
clusion that the four instances of interrogation were co-
ercive within the meaning of Section 8(a)(1) of the Act.
Thus, Green was not known to be a union adherent and,
in fact, he tried to conceal it. The questioning of Green
was clearly without any legitimate purpose and, as dis-
closed by Arnold Boyce, was for an illegal purpose,
namely, to ferret out the identity of the union leader in
order to discharge that person. Further, Arnold's interro-
gation was accompanied by threats of discharge and
plant closure, and all of the interrogations were conduct-
ed by the highest level of management without any safe-
guards announced. Finally, the questioning was in the
context of other unfair labor practices. In addition to the
unlawful interrogations, the Employer also unlawfully
threatened to discharge employees for their union activi-
ty and to close the plant if organization were successful,
violations of the Act requiring no case citation
CONCLUSIONS OF LAW
1. Respondent is an employer 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 Section 2(5) of the Act.
3. By discriminatorily discharging and refusing to rein-
state its employee Peter Green because of his acittvity on
behalf of the Union, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
4 By coercively interrogating employees, Respondent
violated Section 8(a)(1) of the Act.
5 By threatening its employees with the closing of its
business and the discharge of union leaders, Respondent
violated Section 8(a)(1) of the Act.
6. By refusing to meet and bargain with the Union
since August 15, 1983, as the statutory representative of
its employees in an appropriate bargaining unit, Respond-
ent has violated Section 8(a)(5) and (1) of the Act. The
bargaining unit consists of all full-time and regular part-
time drivers and attendants employed by Respondent at
its 470 Lenox Avenue, New York, New York facility
7 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has enaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. The
Respondent having discrimatorily discharged Peter
Green, I recommend that it offer him reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or other rights and privileges previously enjoyed.
Respondent also shall make him whole for any loss of
earnings and other benefits computed on a quarterly
basis from the date of discharge to the date of a proper
offer of reinstatement, less any net interim earnings, as
prescribed in F W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in Isis Plumbing Co, 138
NLRB 716 (1962), and Florida Steel Corp., 231 NLRB
651 (1977) It also is recommended that Respondent ex-
punge from its files any reference to the discharge of
Green, and notify him in writing that it has done so, and
that evidence of this discharge will not be used as a basis
for future personnel action against him. Sterling Sugars,
261 NLRB 472 (1982)
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, it shall be ordered to
cease and desist therefrom and, on request, bargain col-
lectively with the Union as the exclusive representative
of all employees in the appropriate unit and, if an under-
standing is reached, embody such understanding in a
signed agreement In order to ensure that the unit em-
ployees be accorded the services of their selected bar-
gaining agent for the period provided by law, I also rec-
ommend the initial period of certification be construed as
beginning on the date that Respondent commences to
bargain in good faith with the Union as the exclusive
bargaining representative in the unit See Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226,
229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert
denied 379 U.S 817; Burnett Construction Co., 149
NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir.
1965)
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 3
ORDER
The Respondent, City-Wide Invalid Service, Inc.
a/k/a City-Wide Ambulette, Inc., New York, New
York, its officers, agents, successors, and assigns, shall
I. Cease and desist from
(a) Discharging, laying off, or otherwise discriminating
against employees in regard to hire or tenure of employ-
ment, or any term or condition of employment because
of their activities on behalf of Local 531, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America or any other union.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Threatening to discharge employees or to close the
business because employees join or support a union
(d) Refusing to recognize and bargain collectively con-
cerning rates of pay, wages, hours, and other terms and
conditions of employment with Local 531, as the exclu-
sive collective-bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time drivers and at-
tendants employed by Respondent at its 470 Lenox
Avenue, New York, New York facility.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Peter Green immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, in the manner
set forth in the section of this decision entitled "The
Remedy."
(b) Make whole Peter Green who was discharged on
July 11, 1983, for any loss of pay and other benefits suf-
fered as a result of the discrimination against him in the
manner set forth in The Remedy section of this decision
(c) Expunge from its files any reference to the unlaw-
ful discharge of Peter Green on July 11, 1983, and notify
him in writing that this has been done, and that evidence
of this unlawful discharge will not be used as a basis for
future personnel action against him.
(d) On request, bargain with Local 531 as the exclu-
sive collective-bargaining representative of all the em-
ployees in the aforesaid appropriate unit concerning rates
of pay, wages, hours, and other terms and conditions of
employment and, if an agreement is reached, embody the
understanding in a signed agreement.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
3 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 pur-
poses
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary or useful to analyze the amount of backpay due
under the terms of this Order.
(f) Post at its place of business, in New York, New
York, copies of the attached notice marked "Appendix
A."4 Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by the
Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
' If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, it has been
found that we have violated the National Labor Rela-
tions Act and we have been ordered to post this notice.
WE WILL NOT discharge, layoff, or otherwise discrimi-
nate against our employees because of their activities on
behalf of Local 531 Teamsters, Chauffeurs, Warehouse-
men and Helpers, or any other union.
WE WILL NOT coercively interrogate our employees
about their union support or union activities.
WE WILL NOT threaten to discharge employees or
close our business because employees join or support a
union.
WE WILL NOT refuse to bargain collectively concern-
ing rates of pay, wages, hours, and other terms and con-
ditions of employment with Local 531, as the exclusive
representative of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed in Section 7 of the Act.
WE WILL offer Peter Green immediate and full rein-
statement to his former position or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
make him whole, with interest, for any loss of earnings
he may have suffered because of our discriminatory con-
duct against him.
CITY WIDE AMBULETTE INC 889
WE WILL expunge from our files any reference to the
termination of Peter Green and WE WILL notify him
that this has been done and that evidence of this unlaw
ful termination will not be used as a basis for future per
sonnel actions against them
WE WILL on request bargain with Local 531 as the
exclusive representative of all employees in the bargain
ing unit decnbed below with respect to rates of pay
wages hours and other terms and conditions of employ
ment and if an understanding is reached embody such
understanding in a signed agreement The bargaining unit
is
All full time and regular part time drivers and at
tendants employed at our 470 Lenox Avenue New
York New York facility
CITY WIDE INVALID SERVICE INC A/K/A
CITY WIDE AMBULETTE INC