Dimo Ambulette Service, Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1981

255 N.L.R.B. 5 (N.L.R.B. 1981)

DIMO AMBULETTE SERVICE, INC.
Dimo Ambulette Service, Inc. and Local 531, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
2-CA-16410
March 17, 1981
DECISION AND ORDER
On July 25, 1980, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Dimo Ambulette Service, Inc., Bronx, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
I At sec. III, A, par. 11, of his Decision, the Administrative Law
Judge inadvertently stated that union representatives visited the employer
on April 24. The correct date of the visit is April 23, 1979.
We agree with the Administrative Law Judge, for the reasons ex-
pressed by him, that, from the entire situation, all essential elements of a
valid demand by the Union have been made out in this proceeding and
that Respondent's refusal to bargain therefore constituted a violation of
Sec. 8(a)(5). See Schreiber Freight Lines, Inc., 204 NLRB 1162, 1168-69
(1973).
2 Member Zimmerman would not reach the question whether the dis-
charge of Estrada constituted an independent violation of Sec. 8(aXI).
I The Administrative Law Judge recommended that Respondent be or-
dered to cease and desist "in any like or related manner" from interfering
with, restraining, or coercing its employees in the exercise of their Sec. 7
rights. On the authority of Hickmort Foods, Inc., 242 NLRB 1357 (1979),
we find that the issuance of a broad order is warranted in this case, since
Respondent's unlawful conduct includes 7 discharges from an employee
complement of 17; threats to close; actual close of business; and bypass-
ing of the employees' designated collective-bargaining representative. See
Hansa Mold. Inc., 243 NLRB 853 (1979).
In its complaint, the General Counsel alleged that employee Marko-
vich was denied immediate reinstatement after the lockout. Markovich
testified at the hearing, and his status was fully litigated. However, the
Administrative Law Judge inadvertently omitted Markovich's name from
his recommended Order. We correct the omission and include Markovich
among the employees to whom backpay is due.
It appears from evidence adduced at the hearing that employee Negron
was also denied immediate reinstatement after the lockout Although
Negron was not alleged as a discriminatee in the complaint, his uncontra-
dicted testimony established that he was not recalled to work for 3-4
weeks after Respondent reopened its business. Because Negron's status
was fully litigated, we shall include him among the employees to whom
backpay is due.
Member Jenkins would compute the interest due on backpay in ac-
cordance with his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980).
255 NLRB No. 2
1. Substitute the following for paragraph (f):
"(f) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the
Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Wilfredo Estrada, Alfredo Rosa,
Pedro Foruria, Robert Johnson, John O'Neil, An-
thony LaMacchia, Marcos Batista, Martin Marko-
vich, and Jose Negron full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and
make them whole for their loss of earnings in the
manner set forth in that section of the Administra-
tive Law Judge's Decision entitled 'The Remedy."'
3. Substitute the attached notice for that of the
Administrative Law Judge.
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 opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT do anything that interferes
with, restrains, or coerces employees with re-
spect to these rights. More specifically:
WE WILL NOT threaten employees with clo-
sure of our business if they select Local 531,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to
represent them, or if they engage in other con-
certed activities regarding their working con-
ditions or protesting the discharge of employ-
ees.
WE WILL NOT lock out employees because
they selected the above-mentioned Union or
5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other labor organization to represent
them, or because they engage in concerted ac-
tivities with respect to their working condi-
tions.
WE WILL NOT bypass the designated collec-
tive-bargaining representative and union and
deal directly with our employees regarding
their conditions of employment.
WE WILL NOT refuse to recognize and bar-
gain with Local 531, International Brother-
hood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive
representative of our employees.
WE WILL NOT lay off, discharge, or other-
wise discriminate against any employee be-
cause of that employee's union sympathies, or
because that employee engaged in concerted
protest concerning his working conditions
and/or the discharge of other employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL offer full reinstatement to Wil-
fredo Estrada, Alfredo Rosa, Pedro Foruria,
Robert Johnson, John O'Neil, Anthony La-
Macchia, Martin Markovich, Jose Negron, and
Marcos Batista, with backpay plus interest.
WE WILL, upon request, recognize and bar-
gain with Local 531, International Brother-
hood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive
representative of our employees in a unit of all
full-time and regular part-time drivers and
helpers, employed at our Bronx, New York,
facility excluding office clerical employees,
guards, and all supervisors as defined in the
Act, with respect to wages, hours, and other
terms and conditions of employment; and, if an
understanding is reached, embody such under-
standing in a signed agreement.
DIMO AMBULETTE SERVICE, INC.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This case
was heard before me in New York, New York, from No-
vember 26-29, 1979. Upon a charge filed April 25, 1979,
by Local 531, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, the Regional Director for
Region 2 issued a complaint on May 31, 1979, alleging
that Dimo Ambulette Service, Inc., herein called Re-
spondent or the Company, violated Section 8(a)(1), (3),
and (5) of the Act. Respondent filed an answer denying
the commission of unfair labor practices.
The principal issues are whether Respondent violated
Section 8(a)(l) and (3) of the Act by discharging Wil-
fredo Estrada because of the concerted activities in
which he had engaged; whether Respondent then unlaw-
fully discharged Alfredo Rosa because he engaged in a
protest with other employees concerning Estrada's dis-
charge; whether Respondent unlawfully discharged five
other employees because they struck in protest of the
discharges of both Estrada and Rosa; whether Respond-
ent violated Section 8(a)(1) of the Act by threatening to
close its business, by locking out employees, and by deal-
ing directly with its employees; and finally, whether Re-
spondent violated Section 8(a)(5) by refusing to recog-
nize and bargain with the Union as the representative of
a majority of its employees.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. The
General Counsel and Respondent submitted briefs, which
have been carefully considered.
Upon the entire record of this case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, has a principal
office and place of business in the Bronx, New York,
where it is engaged in furnishing transportation to sick,
disabled or handicapped people. Each year Respondent
derives from its operations, gross revenues in excess of
$500,000, and purchases and receives goods and materials
valued in excess of $50,000 from other businesses within
the State of New York, each of whom receives such
goods and materials directly from points outside the
State of New York. I find that Respondent is a company
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
I11. THE UNFAIR LABOR PRACTICES ALLEGED
A. Facts
Respondent operates ambulettes, really vans utilized to
transport sick, infirm, or otherwise handicapped people,
usually to and from homes and hospitals for treatment.
During the period involved herein, Respondent em-
ployed 14 drivers, 2 helpers, and a dispatcher, Felix Do-
minguez, who also did some driving. The parties have
agreed that these 17 employees were employed in an ap-
propriate unit as of April 19, 1979.' Herman Ladenheim
I The complaint alleges, the answer admits, and I find that -All full-
time and regular part-time drivers and helpers, employed by Respondent
at its Bronx, New York, facility, excluding office clerical employees,
guards, and all supervisors as defined in the Act. constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Sec. 9(b) of the Act."
6
DIMO AMBULETTE SERVICE, INC.
is manager and Leonore Ladenheim, his wife, is presi-
dent of Respondent, and together they run the operation.
Wilfredo Estrada was employed as a driver from
March 1977 until April 20, 1979, except for one interval,
and was discharged on the latter date. On April 13,
Friday, and a payday, Estrada had a dispute with Laden-
heim concerning a discrepancy in his pay. This involved
a continuing question with regard to payment for a lunch
period. Estrada normally worked during a span of 7 a.m.
until 3:30 p.m., 8 hours of which one-half hour is deduct-
ed for lunch. However, there was no set time during
which employees, who were driving the patients back
and forth from hospitals, were able to stop for lunch. La-
denheim claimed that sometime during the midday, the
drivers would find a period when they had nothing to
do, and could stop for lunch. He also asserted that in any
case there was so much downtime during the day that
the subtraction of one half hour was really no loss to
them.
However, on April 13, Estrada voiced his complaint
that one day during the preceding week he had no op-
portunity for lunch, yet a half hour had indeed been de-
ducted. Ladenheim consulted his records and agreed to
pay Estrada an additional one-half hour pay to be includ-
ed with his next paycheck. During the course of their ar-
gument, Estrada maintained that there were many occa-
sions when he had no time to stop for lunch and Laden-
heim replied that was the way it is. Estrada continued
and said the employees were entitled to get a lunch
period during the 8 hours if they were not being paid for
the extra half hour. According to Estrada at one point,
Ladenheim said it was nice knowing him, and asked why
he did not quit. Estrada replied that he is not going to
quit, why Ladenheim will not fire him. Finally, Laden-
heim said that he better not try to take his lunch when
there was something that he had to do.
As a result of this experience with Ladenheim, Estrada
determined to organize the employees to join a union, a
matter that had been the subject of discussion among
them for some time previously. During the next week,
Estrada arranged for a petition to be typed which stated
that the signatures on it represented men working for
Respondent who needed a union or a contract for better
working conditions. This was done on April 17. The
next day, April 18, Estrada asked an employee, Nazario,
to sign it but he decided to wait until other employees
signed first. On April 18, he also showed the petition to
Ramon Cruz, his helper at a hospital, both of whom
signed. The following day, April 19, Estrada completed
work at 3:30 p.m. and remained in the area of Respond-
ent's office, near the corner about 50 feet away. As the
drivers came in and left the office, he obtained more sig-
natures for his petition. This took approximately 2 hours
during which nine other employees including Foruria,
Batista, Rosa, LaMacchia, Quinones, Johnson, Marko-
vich, and Negron also signed the petition. Estrada and
other witnesses testified that during the time they re-
mained near the office, the employees observed Laden-
heim at times looking out to see them gathered at the
corner. They also testified that Dominguez looked out
from the office to observe them.
Before Estrada left work at 3:30 p.m. on April 19, La-
denheim told him to come in at 8 a.m. the following day,
although Estrada's usual reporting time was 7 a.m. La-
denheim testified that he had done this in order to have
an opportunity to talk to Estrada because Dominguez
had complained to him about difficulty in communicat-
ing with Estrada during the day. On April 20, Estrada
came in to work at 7 a.m. in any case. He immediately
went inside and Ladenheim handed him his check and
told him he was fired. Estrada asked why and Laden-
heim replied that he was hostile, he did not obey orders,
and a patient wrote a letter complaining about him. Es-
trada then went outside and met some of the men who
were coming to work, including Batista, Robert Johnson,
and Rosa. They asked what happened and he said that
he had been fired. All of them then went inside, and
Johnson asked Ladenheim why Estrada had been fired.
Ladenheim said it was none of his business. Johnson said
it is his business because Estrada is a friend and also an
employee.
After Johnson stopped talking, Rosa asked Ladenheim
why he fired Estrada and the reply was that it was none
of his business. Rosa said he is an employee and has a
right to find out what is going on. Ladenheim then said
that he was fired too and handed him his check. Estrada
and Johnson asked Ladenheim why he was firing Rosa,
and Ladenheim replied that Rosa had done something to
a patient. By this time everybody was talking, and at one
point, Rosa told Ladenheim that he had not fired him for
doing something to a patient but because he signed the
petition for a union. Ladenheim made no reply to that.
The employees left the office and remained outside the
door. Ladenheim followed and proceeded to ask each
employee whether he was going to work as he had work
for them. According to Ladenheim's testimony, he had
given a work assignment to O'Neil while he was in the
office, then asked him outside whether he was going to
work, and O'Neil said he had to think. Ladenheim said
that LaMacchia told him he felt sick, that Batista did not
know what to say, and Foruria gave him a blank stare.
Ladenheim went inside, came out again and told the em-
ployees that if they did not work he would consider
them a voluntary quit. Apart from Estrada and Rosa
who had just been discharged, Foruria, Batista, O'Neil,
Johnson, and LaMacchia did not work. All the other
employees, however, did work that day. During the dis-
cussion on the outside, according to the uncontradicted
testimony of Estrada, Ladenheim said the guys were
stupid for sticking up for Estrada, that Estrada was not
going to pay their bills and he, Ladenheim, did not need
the aggravation, and could close up and the guys would
be out of a job.
Estrada then called the union office, informed them he
had been fired and was told to come up. He went there
with Foruria and LaMacchia, and they each signed au-
thorization cards and were given cards for the other em-
ployees to sign. They broke up into two groups, visited
the hospitals to find the other employees and obtained
signed authorizations from 13 of the 17 employees in the
unit. They then drove back to the union office and
turned in the signed authorization cards.
7
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next day, April 21, Estrada, Foruria, and another
employee met with two union representatives, deAngelis
and Montanez, in front of Estrada's house, told them
they had been fired and were informed that a union rep-
resentative would be at Respondent's office on Monday
morning.
In the meantime, Ladenheim had prepared letters to
the five employees who had not worked on Friday, in-
forming that he considered them to have voluntarily
quit. However, on Monday, April 23, Foruria, Johnson,
LaMacchia, and Batista reported for work. Ladenheim
refused to send out Foruria and instead hand delivered
the letter addressed to him, which had been dated April
21. The other three were sent out to work.
On April 24, about midday, the president of the Union,
Charles Kranitz, accompanied by another union repre-
sentative visited Respondent's office. Kranitz testified
that he went into the office and presented his business
card to Ladenheim who said he knew who he was. He
told Ladenheim that he represented a majority of his em-
ployees and asked him for recognition. Ladenheim said
that he did not care and he would speak to his lawyer
first. Kranitz asked who the lawyer was and Ladenheim
said it was none of his business and that he should go
out. As he left, he told Ladenheim to do what he had to
do and he would do what he had to do.
In the office at the time were both Ladenheims. They
agreed that Kranitz had stated that he represented a ma-
jority of the men. However, there is little agreement on
anything else that occurred. Ladenheim stated this was a
very busy time of the day for him and he was on the
telephone when Kranitz came in. He said he did not see
any card, referring to Kranitz' business card, and did not
get his name when Kranitz gave it. On the other hand,
Leonore Ladenheim who was present said that two gen-
tlemen walked in and threw a card on the desk. Though
reluctant and evasive, Leonore Ladenheim indicated at
two points in her testimony that her husband indeed
looked at the card. Both Ladenheims stated that Laden-
heim told Kranitz, in effect, that he was busy and could
not see or talk to them. The Ladenheims denied that
Kranitz mentioned a union, but also said he told his col-
league, as they were leaving, something about getting
out the picket signs and closing them down. This last is
denied by Kranitz.
I credit the version of this short meeting, which lasted
only 2 or 3 minutes, of Kranitz as the most likely to have
occurred. As noted, I cannot credit Ladenheim's state-
ment that he did not even see the business card or that
he did not know who these people were. It should also
be mentioned that Respondent went through another
union organizational campaign 3 years before this one.
On April 24, Estrada and Johnson were at the office
before 6 a.m. Shortly there after, two employees, Negron
and Nazario, came to work. Estrada asked whether they
intended to work, and Negron replied that they would
unless a majority of the drivers did not work. Negron
stated that he then went into the office and spoke to the
Ladenheims. When asked if they were going to work,
Negron said they had come to work but if the majority
of the people were not going, they would not go.
Negron testified that at this point Ladenheim said if
nobody is going to work, we will lock up and go home.
Finally Negron said he told Ladenheim he would not
take out the van and risk aggravating the other people
about it. He then went outside and waited for the rest of
the fellows to see what was going to happen. Nothing
did happen, but at 6:30 a.m. Ladenheim locked up and
left. Later, other employees came by, asked what hap-
pened and they told them the Ladenheims had locked up
and had gone. Ladenheim stated he closed after talking
to Negron because he was concerned about possible vio-
lence and harm to both the patients and the vehicles.
However, I do not credit Ladenheim that his action in
closing was based on the threat of violence. Leonore La-
denheim testified that Negron did not positively say he
would not drive, and they never checked for sure as to
whether Negron and Nazario would work. Nor is there
any evidence of conduct indicating that violence was a
possibility.
On the evening of April 24, Ladenheim was called by
an employee, Leopoldi, who told him the drivers wanted
to work. Ladenheim testified he asked Leopoldi for the
names of those who wanted to work and instructed him
to report this to Dominguez. The next day, April 25,
Dominguez informed Ladenheim that he had some idea
as to who wanted to work, and set up a meeting at a res-
taurant for Ladenheim and the drivers that morning.
Negron stated that in the course of this meeting, he, him-
self, asked Ladenheim about hospitalization plans and
Ladenheim replied that he had looked into this but it
cost too much. Negron then proposed that the employ-
ees pay half, but Ladenheim still said no. LaMacchia tes-
tified that he arrived late for the meeting but heard La-
denheim say he was trying to do as much as he could for
them but they were going about this the wrong way. La-
denheim acknowledged that the employees started talk-
ing about health plans and lunch hours but he told them
he had not come to talk about these things but wanted to
know who was going to work. However he did say that
he was going to institute a system so that the employees
would be sent out to work in seniority order.
On Wednesday and Thursday while the office was
closed, a number of employees picketed with signs stat-
ing that Respondent was unfair. Ladenheim reopened on
Thursday, April 26, and four senior drivers were put to
work immediately that day as well as the next. Employ-
ees were gradually recalled as Ladenheim was able to
regain some of his work. As for the employees who had
refused to work on April 20, Ladenheim recalled Batista
and LaMacchia on April 30. Of course, Foruria was
never recalled as Ladenheim had delivered the letter ter-
minating him as a voluntary quit.
Ladenheim also testified concerning the discharges of
Estrada and Rosa. He said on April 19, Dominguez in-
formed him he was having problems communicating
with Estrada who had arrived late with a patient from
Lincoln Hospital and was supposed to return but did not.
Dominguez told him that Estrada did not respond to a
signal. In addition, Ladenheim testified to having re-
ceived a phone call late in the day on April 19 from a
patient, Sarah Peaster, who reported about the manner in
which Estrada handled her while taking her to the hospi-
8
DIMO AMBULETTE SERVICE, INC.
tal. In essence, she complained that Estrada had fright-
ened her while taking her downstairs in a wheelchair, in-
dicating he was not trained to carry her in the chair and
as a result, she was fearful. As April 19 was a Thursday,
the night on which he normally worked up his payroll
for the following day, Ladenheim said he discussed Es-
trada with his wife and they decided to fire him because
of this and other complaints and the fact that he was not
cooperative.
As for Rosa, Ladenheim indicated that since they were
on the subject in their discussion of Estrada, they decid-
ed also to discharge Rosa at the same time because he
too was a troublesome employee. Ladenheim also re-
ferred to an incident, which he believed occurred on
March 19, in which Rosa did not respond to a call on
the beeper. He also stated, after refreshing his recollec-
tion, that another incident with Rosa occurred on March
16 when he refused to go with a certain designated
driver as a helper.
With regard to the delivery of the letter of termination
to Foruria, on April 23, Ladenheim stated that over the
weekend, he and his wife decided that if the employees
who had refused to work on the preceding Friday re-
turned that Monday, he would give work to Johnson,
Batista, and LaMacchia as they were more senior em-
ployees. However, Foruria had only worked for less
than 2 months and they were going to let him go, which
they did.
B. Analysis and Conclusions
1. The discharge of Wilfredo Estrada
The General Counsel alleges that Wilfredo Estrada
was discharged on April 20 because of his protests re-
garding lunchbreaks and because he circulated and ob-
tained signatures on a petition for a union. It has been
found that approximately a week before his discharge,
Estrada questioned his paycheck in that it failed to pro-
vide pay for an additional half hour one day when he
was unable to stop for lunch. As noted, Ladenheim con-
sulted his records, found an error and agreed to pay Es-
trada for this in his next paycheck. This was the final in-
cident in an ongoing dispute between Estrada and La-
denheim concerning Respondent's practice not to pro-
vide a set period for lunch resulting in employees having
to stop on a catch-as-catch-can informal basis. Estrada's
activity with regard to this subject is clearly protected as
it involved wages and working conditions, obviously a
matter affecting all employees and not merely Estrada
himself. In her testimony before the State Unemployment
Commission, Leonore Ladenheim conceded that Estra-
da's persistent efforts in this matter was one of the rea-
sons why she and her husband decided to terminate him.
Accordingly, I find by discharging Estrada because of
his protest over Respondent's lunch policy and payroll
policy with respect to lunch hours, Respondent thereby
violated Section 8(a) (1) of the Act. 2
2 It is unnecessary to find, as suggested by the General Counsel, that
Respondent violated Federal wage and hour statutes and regulations con-
cerning overtime pay. It is sufficient that Estrada's activity was con-
cerned with these matters.
It is uncontradicted that Estrada prepared a petition
calling for union organization, and solicited signatures
for the petition, particularly on Thursday, April 19 after
work. Respondent denies that this played any part in its
decision to discharge Estrada, claiming it had no knowl-
edge of this activity on his part. However, this activity
on the part of Estrada as well as the other employees
who signed the petition, was carried on in the open on
the street approximately 50 feet from the doorway of Re-
spondent's premises. Credible evidence also establishes
that during this time, a period of approximately several
hours, employees returning from work and leaving the
office went to the area where Estrada and others were
standing and were observed by Ladenheim himself en-
gaging in activity of this type. Ladenheim although
denying that he was particularly observing the employ-
ees, nevertheless conceded that he probably stood up and
looked out in order to stretch his legs. I find, based on
the small plant doctrine,3 that knowledge could be in-
ferred to Respondent. Morever, the testimony reveals
that Dominguez, the dispatcher, although not a supervi-
sor, was closely associated with Ladenheim, and he also
left the office and looked to the point where Estrada and
other employees were engaging in their activity. In addi-
tion, Dominguez actually spoke to one of the employees
during this time. The knowledge of Dominguez and the
relationship with his employer is further established by
the fact that subsequently on Ladenheim's behalf, he ar-
ranged a meeting of employees during the time when
Respondent had shut down its business. Thus, I find that
Respondent had knowledge and was aware of Estrada's
activity of circulating a petition and obtaining signatures
in support of a union.
Respondent contends, however, that Estrada was
fired, not because of the activities just discussed, but
rather because of a complaint that it received from Sarah
Peaster, a patient whom Estrada took to a hospital for
treatment on April 19. Estrada was never warned in
writing, or otherwise, concerning his work performance.
Indeed employee LaMacchia testified without contradic-
tion that although patients complained on three or four
occasions about him, he was told by Ladenheim that he
did not communicate either compliments or complaints
to the drivers. The record further reveals that another
employee, Markovich, received a written warning for
misconduct and performance, and, thereafter, after an-
other incident was discharged by letter. Of course this
procedure was not followed in Estrada's case. Accord-
ingly, Estrada's discharge was not pursuant to any estab-
lished policy, and in view of his activity immediately
preceding his termination, I find Respondent's assertion
that he was discharged because of Peaster's complaint to
be merely a pretext. I therefore conclude that Estrada
was discharged in violation of Section 8(a)(l) and (3) of
the Act because he circulated the petition for a Union.
2. The discharge of Alfredo Rosa
On April 20, when Rosa, along with others, protested
the discharge of Estrada, Ladenheim fired him on the
I Wiese Plow Welding Ca. Inc.., 123 NLRB 616 (1959).
9
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spot. Ladenheim first tried to explain this action, by stat-
ing that when he allegedly determined to discharge Es-
trada, he also decided to sever Rosa for general poor
performance and lack of cooperation. When pressed at
the hearing, Ladenheim referred to some incidents, the
latest occurring in March 1979, in which Rosa supposed-
ly failed to cooperate and was insubordinate. However,
Ladenheim did not explain why Rosa was not disciplined
during the period when three such instances occurred,
rather than a month later while Rosa was engaged with
others in protesting the discharge of a fellow employee.
In view of the timing, I find that Rosa was engaged in
protected concerted activity when he and other employ-
ees were protesting Estrada's discharge to Ladenheim,
and therefore by terminating him at that moment, Re-
spondent violated Section 8(a)(1) of the Act. As I have
found that Estrada's discharge violated Section 8(a)(3) of
the Act because of his preparation and circulation of a
petition for a union and Respondent was aware of this
conduct, the discharge of Rosa is found also to have
been the result of union animus, and therefore violated
Section 8(a)(3) of the Act.
3. The strikers
On the morning of April 20, immediately following
the discharges of Estrada and Rosa, several other em-
ployees who had been protesting these actions by Re-
spondent, refused to work. They were Johnson, O'Neil,
LaMacchia, Batista, and Foruria who were standing out-
side the premises when Ladenheim came out and told
them that he had work assignments for them, and unless
they worked he considered them quits. When they con-
tinued to voice their protests, Ladenheim said they were
discharged and that he considered them voluntary quits.
By this conduct Respondent further violated Section 8(a)
(I) of the Act as these fired employees were striking in
protest of the illegal discharges of Estrada and Rosa. As
such they were engaged in an unfair labor practice strike
and their discharges violated Section 8(a)(1). The same
conduct also constituted a violation of Section 8(a)(3) be-
cause it has been found that the discharge of Estrada,
which they were protesting, was also motivated by Es-
trada's union activity.
4. The threat to close
In the course of the heated discussions among the em-
ployees and Ladenheim, while they were protesting the
discharges, Ladenheim told the drivers that he did not
need this aggravation and that he could close any time.
This statement made in the midst of the protests together
with union activity by these employees in signing the pe-
tition on the previous day constituted a threat to close
the business in order to repress any or part of these ac-
tivities, and consequently Respondent violated Section
8(a)(1) of the Act.
5. The lockout
On Monday, April 23, four of the five strikers whom
Ladenheim discharged the preceding Friday reported to
work. Ladenheim then assigned work to Johnson, La-
Macchia, and Batista, thereby reinstating them. Howev-
er, he refused the same treatment to Foruria, but rather
gave him a letter of discharge. The same day, Kranitz
came to Respondent's office, and when he told Laden-
heim that he represented a majority of his employees, as
described above, Ladenheim refused to recognize or
speak to him.
On the morning of April 24, when the Ladenheims
opened the office they found that Johnson and Estrada
were already in front. Then Negron and Nazario came
to work and Ladenheim spoke to them asking if they
were prepared to drive. Negron responded that he
would work if a majority of the other drivers agreed to
work. After hearing this, the Ladenheims decided to
close the store and go home. They remained closed for 2
days. Respondent asserts it took this action for fear of
violence to employees who would work and possibly to
the customers, and damage to the vehicles and property.
However, no evidence was presented of any conduct on
the part of the strikers or other employees which would
lead to this conclusion. The record reveals nothing but
peaceful protests and some picketing. However, the real
reason for closing the shop was described by Leonore
Ladenheim in her testimony at the unemployment hear-
ing, when she said that they locked up the shop because
of the men who came in, threw a card on her husband's
desk, and said they represented a majority of the men. Of
course by this time, as noted, the employees had signed
cards for the Union and Kranitz had visited the premises
on the preceding day. Therefore by its own admission,
Respondent locked out its employees because they joined
the Union and because of the visit of the union repre-
sentative, and thereby violated Section 8(a)(l) and (3) of
the Act.
6. The meeting of April 25
After Respondent had locked out the employees it un-
dertook to determine how many would be willing to
return to work. For this purpose it enlisted Dominguez,
the dispatcher, who communicated with a number of em-
ployees and was able to set up a meeting which took
place at a cafe in the presence of the Ladenheims, the
drivers, and helpers. In the course of that meeting, some
of the employees inquired about health benefits and other
conditions including the ever present issue of lunch
hours and overtime. Ladenheim listened to some of the
proposals, but would not grant any of these benefits indi-
cating that the employees were going about it in the
wrong way. However, he did announce that on the re-
opening of the business the following day, the employees
would be sent out to work in seniority order and a com-
plete seniority system would be maintained. I find that
by conducting the meeting described above, listening to
employee proposals concerning working conditions, insti-
tuting a seniority system, at a time when the Union had
already advised Respondent that it represented a major-
ity of the employees, Respondent had engaged in direct
dealing with employees and bypassing of the Union, and
thereby violated Section 8(a)(l) of the Act. As it appears
that on the day of the demand for recognition, the Union
did represent a majority of the employees, Respondent
additionally violated Section 8(a)(5) of the Act.
10
DIMO AMBULETTE SERVICE, INC.
7. The bargaining order
The parties are agreed, and I find, that all full-time and
regular part-time drivers and helpers, employed by Re-
spondent at its Bronx, New York, facility, excluding
office clerical employees, guards and all supervisors as
defined in the Act constitute an appropriate unit for the
purposes of collective bargaining. Moreover, it is further
agreed that there were a total of 17 employees in the
unit as of April 20 and 23, 1979. Of this number 13 em-
ployees signed authorization cards for the Union, on
April 20.
Respondent contends that despite the visit of the union
representatives on April 23 to the office of Respondent,
no actual demand for recognition or bargaining was
made by them of the Ladenheims. However, while it is
true that Kranitz, on behalf of the Union, perhaps did
not use the exact words of demand, he did, and it is
agreed, say that he represented a majority of the employ-
ees. At that point he was cut off by Ladenheim who re-
fused to talk or discuss anything with him. In his testi-
mony, Ladenheim sought to make it appear that he did
not know who Kranitz was or what the import of his
visit was. I do not credit his vague testimony as it is ne-
gated by the circumstances and other evidence. In this
connection, I rely on Leonore Ladenheim's testimony re-
ferred to above, when she said that they decided to close
the business on April 24 because of the visit of some
union people. Moreover, the Ladenheims were not en-
tirely neophytes in the labor relations area, as it appears
that they successfully resisted unionization several years
prior to the instant case. Accordingly, I find that the
visit of the union representatives on April 23 and the
events that occurred at that time constitute sufficient
demand that the Union wanted recognition.
Having found that the Union represented a majority of
Respondent's employees in an appropriate unit and
having demanded recognition on April 23, there remains
that question as to whether in the circumstances of the
case, the Union is entitled to a bargaining order. In
N.LR.B. v. Gissel Packing Co., 395 U.S. 575 (1969), the
United States Supreme Court held that a bargaining
order would be appropriate in a situation where an em-
ployer engages in unfair labor practices which have a
tendency to undermine majority strength and impede
election processes. The Board has said that where a co-
ercive atmosphere is created by the employer which
conventional Board remedies may not adequately dissi-
pate so that a fair election can be held with reasonable
certainty, a bargaining order is warranted.4
In the instant case, it has been found that Respondent
engaged in conduct violative of Section 8(a)(3) and (1) of
the Act. The principal union protagonist, Estrada, who
circulated a petition for a union, was unlawfully dis-
charged immediately following such activity, along with
another employee, Rosa. Immediately after these two
discharges, Respondent discharged five other employees
who were concertedly protesting the discharges of the
other two. At this point Respondent had already termi-
nated seven employees in the unit of seventeen. Al-
' Joseph Lachniet d/b/a Honda of Haslert, 201 NLRB 855 (1973),
enfd. 490 F.2d 1382 (6th Cir. 1974).
though Respondent reinstated three of these employees
on April 23, the effects of their discharge on April 20 re-
mained with the other employees. Noteworthy is that
while reinstating three striking employees, Respondent
refused reinstatement for Foruria and gave him a dis-
charge letter. Thereafter, Respondent engaged in further
violations of Section 8(a)(1) by indicating it would termi-
nate its business rather than deal with the Union, by set-
ting up a meeting and, in effect, bargaining with the em-
ployees and bypassing their designated collective-bar-
gaining representative. I find this conduct to be quite
pervasive, which tended to destroy and undermine the
majority status of the Union, and rendered the conduct
of a fair election very improbable. In such circumstances
a bargaining order is warranted.a
In sum, I conclude that Respondent has violated Sec-
tion 8(a)(5) of the Act by its refusal to recognize and
bargain with the Union, and that a bargaining order is
necessary.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes 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 shall recommend that it be or-
dered to cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondent discharged Wilfred Es-
trada and Alfredo Rosa in violation of Section 8(aX3)
and (1) of the Act, I recommend that Respondent be or-
dered to reinstate them to their former positions or, if
said positions are no longer available, to a substantially
equivalent position, without prejudice to their seniority
and other rights and privileges, and make them whole
for any loss of earning or other monetary loss they may
have suffered as a result of the discrimination against
them, less interim earnings, if any. The backpay shall be
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest to be com-
puted in the manner described in Florida Steel Corpora-
tion, 231 NLRB 651 (1977).6
I have found that Foruria, Johnson, O'Neil, LaMac-
chia, and Batista engaged in a strike on April 20 to pro-
test the discharges of Estrada and Rosa, and further that
such strike constituted an unfair labor practice strike. As
unlawfully discharged strikers, they are afforded the
same remedial rights of other discharged employees,
rather than those of ordinary strikers. 7 Therefore, the
Boston Per Supply, Inc., 227 NLRB 1891 (1977).
See., generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Abilities and Goodwill, Inc., 241 NLRB 27 (1979).
II
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedy as described above, with respect to Estrada and
Rosa, without the necessity of their making an uncondi-
tional offer to return to employment. This is clearly true
as to Foruria who was doubly discharged, in a sense,
when Ladenheim gave him a letter to that effect on
April 23, and O'Neil who was never reinstated or of-
fered reinstatement by Respondent. With respect to
Johnson, LaMacchia, and Batista, these three employees
were reinstated on Monday, April 23, when they report-
ed and worked that day. However, they were unlawfully
locked out on April 24 and 25, and because Respondent
unlawfully instituted a seniority system, were not rein-
stated on April 26 when Respondent resumed its oper-
ations. Their status remains the same as any other em-
ployee discharged in violation of Section 8 (a)(3) and are
entitled to the same remedy thereafter.
It is further recommended that Respondent be ordered
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of a majority of Re-
spondent's employees in the appropriate unit described
above, as of April 23, 1979, the date on which Respond-
ent unlawfully refused recognition of the Union. 8
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. Respondent violated Section 8(a)(1) of the Act by
discharging Wilfredo Estrada because of the protected
concerted activities in which he had engaged; and violat-
ed Section 8(a)(3) of the Act because, additionally, he
was discharged for his union activities.
4. Respondent violated Section 8(a)(1) of the Act by
discharging Rosa, Foruria, Johnson, O'Neil, LaMacchia,
and Batista because they concertedly complained regard-
ing the discharge of Estrada; and also violated Section
8(a)(3) of the Act by discharging those employees be-
cause of their union activities.
5. Respondent violated Section 8(a)(l1) of the Act by
threatening to close its business if the employees contin-
ued to complain about their wages, hours, and working
conditions, and the discharge of Estrada.
6. Respondent violated Section 8(a)(1) and (3) of the
Act by locking out its employees on April 24 and 25, be-
cause of their union activities.
7. Respondent violated Section 8(a)(5) and (1) of the
Act by:
(a) Bypassing the designated collective-bargaining rep-
resentative of its employees and dealing directly with
those employees concerning their conditions of employ-
ment and seniority.
(b) Refusing, since April 23, 1979, to recognize and
bargain with the Union as the exclusive collective-bar-
gaining representative of its employees in the appropriate
unit set forth above.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
a Permanent Label Corporation, 248 NLRB 118 (1980).
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER g
The Respondent, Dimo Ambulette Service, Inc.,
Bronx, New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees because of those employees' protected con-
certed activities and their union activities.
(b) Threatening employees with closure of its business
if the employees continue to concertedly complain re-
garding their working conditions, and protest the dis-
charge of any employee.
(c) Locking out employees because of their support
and activity for the Union.
(d) Bypassing the designated collective-bargaining rep-
resentative of its employees and dealing directly with
those employees concerning their seniority and other
conditions of employment.
(e) Refusing to recognize and bargain with Local 531,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the collec-
tive-bargaining representative of the employees in the
unit found appropriate above.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Wilfredo Estrada, Alfredo Rosa, Pedro For-
uria, Robert Johnson, John O'Neil, Anthony LaMacchia,
and Marcos Batista full reinstatement to their former jobs
or, if those jobs no longer exist, to a substantially equiva-
lent position, without prejudice to their seniority or
other rights and privileges, and make them whole for
their loss of earnings in the manner set forth in the sec-
tion of the 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, time
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due.
(c) Upon request, recognize and bargain with Local
531, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, in a unit of all
full-time and regular part-time drivers and helpers, em-
ployed by Respondent at its Bronx, New York, facility,
excluding office clerical employees, guards, and all su-
pervisors as defined in Section 2 (11) of the Act, respect-
ing rates of pay, wages, hours, or other terms and condi-
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the the Board
and become its findings, conclusions. and Order, and all objections there-
to shall be deemed waived for all purposes.
12
DIMO AMBULETTE SERVICE, INC.
tions of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
(d) Post at its Bronx, New York, office copies of the
attached notice marked "Appendix."' 0 Copies of said
notice, on forms provided by the Regional Director for
Region 2, after being duly signed by its authorized repre-
10 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
sentative, shall be posted by it at its Bronx office imme-
diately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by it to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
13