Emergency One, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1992

306 N.L.R.B. 800 (N.L.R.B. 1992)

800
306 NLRB No. 158
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent also has excepted to certain inferences drawn by
the judge. We find that these inferences are supported by substantial
evidence on the record as a whole. Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466 (9th Cir. 1966).
Emergency One, Inc. and International Union of
Electronic, Electrical, Salaried, Machine and
Furniture Workers, AFL–CIO (IUE) and
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 385, af-
filiated with International Brotherhood of
Teamsters, AFL–CIO.1 Cases 12–CA–13361,
12–CA–13498, 12–CA–13742, 12–CA–13873,
12–CA–13887, 12–CA–13973, 12–CA–14184,
and 12–CA–14234
March 24, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 26, 1991, Administrative Law Judge
Jay R. Pollack issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
The judge found, and we agree, that Supervisor
Baker threatened employee Vinyard in violation of
Section 8(a)(1) of the Act. The judge found that Vin-
yard, in response to Baker’s questioning him about
why employees wanted a union, listed employee con-
cerns. Baker then replied that ‘‘it’s a right to work
state and the company doesn’t have to negotiate with
the union.’’ This statement is contrary to the law and
could reasonably be interpreted as a threat that the Re-
spondent would not bargain with a union, even if em-
ployees elected union representation. Baker did not end
his inquiry there, however. His continued questioning
evoked the spectre of a strike, with Vinyard on the
‘‘other side’’ of a picket line, and the permanent re-
placement of strikers. Baker cautioned Vinyard to
think the matter over and said that he would not like
to see Vinyard ‘‘go down the road.’’ In these cir-
cumstances, we adopt the judge’s finding that Baker
unlawfully threatened Vinyard with reprisals if he en-
gaged in protected activity.
We also agree with the judge’s finding that Super-
visor Flinn unlawfully restricted conversations about
union matters during worktime while permitting con-
versations about other nonwork matters. He credited
testimony by the Respondent’s former employee, Taub,
that Flinn announced the prohibition to Taub and four
other employees, including Russ Miller, during a meet-
ing in late January 1989. In its exceptions, the Re-
spondent points out that Russ Miller testified that Flinn
never restricted employee discussions of union matters.
Although the judge erroneously found that Miller
was not present at the conversation testified to by
Taub, we find that this is a harmless error. We find
that Miller’s testimony is not inconsistent with the
judge’s decision. Miller’s testimony was in response to
broad, general questions about Flinn’s conduct. In fact,
Miller was not asked specifically about the cir-
cumstances of the January 1989 meeting. Thus, his
general testimony does not address the factual situation
in issue. Accordingly, we affirm the judge’s conclusion
that the Respondent violated the Act as alleged.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Emergency One, Inc.,
Ocala, Florida, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
E. Walter Bowman, Esq. and Evelyn M. Korschgen, Esq., for
the General Counsel.
Thomas C. Garwood Jr., Esq. (Garwood & McKenna), of
Orlando, Florida, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
matter in trial at Ocala, Florida, on December 10 through 14,
1990. On April 26, 1989, International Union of Electronic,
Electrical, Salaried, Machine and Furniture Workers, AFL–
CIO (the IUE) filed a charge in Case 12–CA–13361 alleging
that Emergency One, Inc. (Respondent) committed certain
violations of Section 8(a)(3) and (1) of the National Labor
Relations Act (the Act). The IUE filed a charge and an
amended charge in Case 12–CA–13498 on August 11 and
October 10, 1989, respectively. On January 17, 1990, Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 385 (the Teamsters) filed a charge in Case
12–CA–13742 against Respondent alleging violations of Sec-
tion 8(a)(3) and (1) of the Act. Thereafter, on March 15 and
20, the Teamsters filed charges in Cases 12–CA–13873 and
12–CA–13887, respectively. The charge in Case 12–CA–
13887 was amended on May 15, 1990. The Teamsters filed
another charge in Case 12–CA–13973 on June 14, 1990. A
charge and an amended charge in Case 12–CA–14184 were
filed by the Teamsters on September 24 and November 20,
801EMERGENCY ONE, INC.
1 The representation case was not before me. Thus, the results of
the election are not relevant to the instant case.
1990, respectively. Another charge was filed by the Team-
sters in Case 12–CA–14234 on October 31, 1990. On March
30, 1990, the Regional Director for Region 12 of the Na-
tional Labor Relations Board issued a consolidated complaint
and notice of hearing against Respondent, alleging that Re-
spondent violated Section 8(a)(3) and (1) of the Act. On July
19, the Regional Director issued an amended consolidated
complaint and on November 26, 1990, the Regional Director
issued a second amended consolidated complaint against Re-
spondent. Respondent filed timely answers to the complaints,
denying all wrongdoing. At the hearing, Respondent amend-
ed its answer to admit that it maintained an overly broad no-
distribution rule.
The parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having
considered the posthearing briefs of the parties, I make the
following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent, a Delaware corporation, has been engaged in
business as a custom manufacturer of fire trucks and emer-
gency vehicles in Ocala, Florida. During the 12 months prior
to issuance of the complaint, Respondent purchased and re-
ceived at its Florida facility goods, products, and materials
valued in excess of $50,000 directly from sources located
outside the State of Florida. Accordingly, Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The parties stipulated and I find that at all times material
the IUE and the Teamsters each have been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The timeframe encompassed by the complaint consists of
two periods of organizing by Respondent’s employees, on
behalf of two different labor organizations, the IUE and the
Teamsters. In January 1989, the IUE began its organizing
campaign at Respondent’s facility. James Taub, an acting
crew leader, was the leading organizer of the IUE campaign.
However, the IUE never filed a representation petition and
its campaign ended in the fall of 1989.
Several months later, in January 1990, the Teamsters
began an organizing campaign. On March 1, 1990, the
Teamsters filed a petition with the Board seeking to represent
employees at Respondent’s body plant. That petition was
withdrawn in August. However, on August 28, 1990, the
Teamsters filed another representation petition in Case 12–
RC–7365. At the time of the instant trial, an election was
scheduled to be held for Respondent’s production and main-
tenance employees at all its Ocala, Florida facilities on Janu-
ary 11, 1991.1
Within the context of these two organizing drives, the
complaint alleges that Respondent discharged employees Ken
Wood and Dennis Miller because of their activities on behalf
of the Teamsters. The complaint also alleges that Respondent
withheld certain profit-sharing payments and wage increases
due employees in its body shop in order to discourage activi-
ties on behalf of the Teamsters. Further, the complaint al-
leges nine independent violations of Section 8(a)(1) of the
Act in order to discourage union activities.
1. The peer review panel
General Counsel alleges that in response to the IUE orga-
nizing drive, Respondent established and utilized a peer re-
view panel in order to discourage union activities.
As stated earlier the IUE campaign began in January 1989.
Although employee meetings were held, no representation
petition was filed. On March 5, 1989, Frank Carmody,
human resources vice president, announced a peer review
panel to permit employees a method of seeking redress from
discipline or adverse actions. The plan was incorporated into
the employee handbook but was never implemented. The
IUE filed an unfair labor practice charge and Respondent,
faced with such a charge, never implemented the peer review
panel.
The evidence establishes that in the fall of 1988, as part
of a periodic review of Respondent’s employee handbook,
Carmody proposed an employee peer review panel to supple-
ment Respondent’s then-existing internal grievance proce-
dure. The review panel was based on a similar procedure uti-
lized by Coor’s Brewery. Although the review panel was an-
nounced and published in the handbook, Carmody suspended
its implementation after learning that the Regional Director
was alleging the peer review panel as an unfair labor prac-
tice.
Carmody testified that in late 1988, the peer review panel
was adopted as part of Respondent’s ongoing review of its
policies and procedures. Carmody got the idea from reading
about the peer review panel in use at the Coor’s Brewery.
The panel would have been an addition to the existing com-
plaint procedure for employees. However, because of the
IUE’s charge, and the subsequent NLRB complaint, the re-
view panel has never been utilized.
2. The alleged surveillance
The complaint alleges that Respondent engaged in unlaw-
ful surveillance by having its managers and supervisors dis-
tribute antiunion materials and thereafter observing which
employees accepted the materials.
James English testified that in October 1989, Supervisors
Bob Fosson and Steve Dean were passing out antiunion T-
shirts. According to English, he accepted a shirt from Dean
and was told, ‘‘I expect you to wear that to work tomor-
row.’’ The shirts read ‘‘Union Free and Proud Of It.’’
Fosson and Dean denied passing out the antiunion T-shirts.
Other employees who work in the same building as English,
Dean, and Fosson corroborated the testimony of the two su-
pervisors. The credible evidence establishes that the T-shirts
were paid for by Respondent and made available to employ-
ees. However, Respondent’s supervisors did not pass out the
shirts nor make any notation as to who accepted the shirts.
On one occasion, Fosson and Dean helped carry the shirts
from a storeroom to the breakroom. The testimony of Dean
and Fosson is corroborated by other employees working in
802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Taub had contacted the IUE and was open about his union activi-
ties. At company meetings, in the spring of 1989, the IUE was often
referred to as ‘‘Mr. Taub’s union.’’
that building. Accordingly, I credit the testimony of Dean
and Fosson over that of English.
3. Implied threats to discharge employees
Former employee Jim Taub testified that in January 1989,
he was approached by his supervisor, Scott Flinn, and asked
about a union.2 Taub told Flinn that he was trying to orga-
nize the employees for the IUE. Flinn answered that he
didn’t want to hear anymore and cautioned Taub that the em-
ployee could lose his job. Flinn denied making any such
statement to Taub. I credit Taub’s testimony over Flinn’s de-
nial.
Employee William Vinyard testified that on April 11,
1989, while he was working on top of a truck, his supervisor
Stanley Baker climbed on top of the truck and asked him
‘‘what’s wrong.’’ According to Vinyard, he told Baker that
nothing was wrong. Baker insisted that something was wrong
and Vinyard asked if Baker meant the Union. Baker said yes
and asked what the employees wanted. Vinyard answered,
better medical benefits, better pay scale, and fairer treatment
from supervisors. Baker stated, ‘‘it’s a right to work state
and the company doesn’t have to negotiate with the union.’’
Baker then asked ‘‘what would happen if the union came in
with fifty-one percent and the company wouldn’t agree to the
contract.’’ Vinyard answered, ‘‘Well, we’d probably end up
on strike.’’ Baker said Vinyard would be on the other side
of a picket line and asked what would happen. Vinyard an-
swered the Company would probably hire replacements.
Baker answered that Vinyard was right. Baker cautioned
Vinyard to think the matter over. He suggested that if Vin-
yard changed his mind, other employees would follow the
lead. I credit Vinyard’s testimony over that of Baker.
4. The alleged ban of union discussions
Taub testified that at a meeting at the end of January
1989, Flinn told Taub and four other employees that Flinn
did not want any union talk on company hours. The employ-
ees who worked under Flinn in the parts assembly area had
been permitted to talk about any subject so long as they kept
working. The undisputed evidence establishes that Flinn al-
lowed these employees to discuss any topic, work related or
not, as long as it did not interfere with their work duties. Ac-
cording to Taub, Flinn stated that union talk was not allowed
but made no mention of any other subject.
Flinn denied making the statements attributed to him by
Taub. According to Flinn, he told the employees that oper-
ations were working behind schedule and he did not want
talk of any kind interfering with work. Employees Miller,
L’Heureux, and Hildebran all credibly testified that Flinn al-
lowed employees to talk about any subject as long as the em-
ployees did not stop work to talk. These employees were not
barred from discussing the Union. These employees were not
present, however, at the conversation testified to by Taub.
5. The alleged creation of an impression of surveillance
At meetings in February 1989, Frank Carmody, Respond-
ent’s vice president of human relations, admittedly told em-
ployees that he knew where union meetings were being held
and who was attending them. While several employees testi-
fied to what Carmody said at employee meetings concerning
the union meetings, I find that the most reliable version of
what was said was the testimony of Carmody. Carmody en-
couraged employees to get both sides of the story so as to
make an intelligent decision. Stating that the IUE had not
communicated with many of the employees about their orga-
nizing efforts, Carmody told the employees that he would
share any information that he obtained about IUE meetings.
Carmody told employees about the date and place of future
meetings and told employees that he would give them the
names of fellow employees who could give more information
about the union meetings and organizational drive. According
to Carmody the information about the meetings had been
volunteered by employees. He testified that he informed the
employees of what he knew so that they could attend union
meetings and find out more about the Union.
6. The alleged restriction of employee James Taub’s
contact with other employees
In late February 1989, Taub, then an acting crew leader,
was placed in a parts department assignment in the electrical
department. According to Taub, his previous position caused
him to travel throughout the plant. Taub was told that as part
of a job rotation he was being assigned to the prefab area.
That was a fenced-in area in which Taub prefabricated cer-
tain parts. Taub testified that Supervisor Scott Flinn told him
that he could not leave his area, even to go to the bathroom,
without permission. When Taub protested, Flinn responded
that he also had bosses. A few days later, when Taub again
protested this assignment, Flinn stated ‘‘Why did you start
this Union shit anyway?’’
Several employees, including Miller, Nawrocki, and
L’Heureux, testified that the prefab area was not isolated and
that Taub’s assignment was not punishment. Carmody testi-
fied that the rotational program was a normal and routine
company undertaking. Taub had previously announced the
intent of taking a leave and Respondent wanted to familiarize
other employees with his job function. Flinn’s denial is not
credited.
7. The no-distribution rule
During the hearing, Respondent admitted that the fol-
lowing rule in its employee handbook was overly broad and
invalid. There was no evidence of any improper application
of the rule.
No solicitation of any kind is allowed during working
hours. No distribution of any written or printed matter
of any kind is allowed on company property at any
time. For purposes of this rule, ‘‘working hours’’ does
not include break time, lunch periods or other duty-free
periods of time. ‘‘Working hours’’ does include time
spent on all work tasks by both the employee engaging
in the solicitation or distribution and the employee to
whom the solicitation or distribution is directed.
803EMERGENCY ONE, INC.
3 Rouse was one of the leaders of the employee-sponsored
antiunion group. The parties stipulated that Rouse was not a super-
visor within the meaning of the Act.
4 I found Rouse to be a particularly untrustworthy witness. Rouse
left me with the strong impression that he was simply denying those
events and statements attributed to him which he felt were inconven-
ient or embarrassing. I do not believe he felt constrained by the truth
to fully describe events as he recalled them. I came to the conclusion
that Rouse’s testimony was designed to be harmful to Wood’s case
rather than to recite events as they were recalled.
Rouse was further impeached by the testimony of three credible
witnesses. Employee Ray Wallace testified that he heard Rouse say,
a couple of days after Wood’s discharge, that ‘‘it was Wood’s tail
or Randy’s tail.’’ Employee Randy Renwick testified that even after
Wood’s discharge, Rouse himself borrowed personal tools from
other employees without first asking permission. The tools were later
returned by Rouse and Renwick without incident.
Employee Donnie Wreen testified that the day of Wood’s dis-
charge, he asked Rouse whether Rouse had reported that Wood had
stolen a wrench. Rouse answered that ‘‘the company had asked him
if he knew anything about Wood—as far as union activity [was]
concerned or anything else about him.’’ Rouse said the wrench was
the only complaint he had. Wreen then went to Owens to tell Owens
that he had a tool belonging to Rouse.
One day after Wood’s discharge, Rouse expressed regret to Wreen.
Rouse said that if he knew how things were going to work out, he
might have acted differently. Rouse indicated to Wreen that ‘‘the
company’’ had asked him (Rouse) whether he had any complaints
against Wood or anything that Wood had done wrong. Rouse again
said that the wrench was the only complaint he had.
8. The alleged interrogation and threats of discharge by
Supervisor Alan Lavish
Former employee Gary Stidham testified that on a couple
of occasions he was asked by his supervisor Alan Lavish if
he had heard anything about the Union. Stidham told Lavish
that he had joined the Union. Further, Stidham wore a union
button to work. According to Stidham he heard Lavish say
on several occasions that employees ‘‘better watch out’’ and
that employees might lose their jobs because of the Union.
Lavish denied making any such statements. Other employ-
ees working for Lavish testified that they heard no such
statements. Employee Fitzgerald testified that the remark al-
legedly made by Lavish was in fact made by another non-
supervisory employee. Fitzgerald was an open union sup-
porter. I credit Lavish’s testimony over that of Stidham.
9. The withholding of the profit-sharing distribution and
wage adjustments at the body plant
Prior to any union activity at its plant, Respondent had es-
tablished and administered a profit-sharing plan for its em-
ployees. In 1989, Respondent decided to change the plan’s
employee distributions from an annual basis to a quarterly
basis. This change was announced to employees in February
1990. However, on March 1, 1990, the Teamsters filed their
representation petition seeking to represent the employees at
Respondent’s body plant.
As a result of the petition, Respondent decided not to dis-
tribute the profit-sharing quarterly distribution to the employ-
ees in the body plant. The employees at the other facilities
received their quarterly distribution. However, employees at
the body plant were told that their distributions would be
placed in an escrow account, earning interest, until the union
representation question had been resolved. The employees
were told that this procedure was necessary to avoid the ap-
pearance of an inducement to cease union activities.
In August 1990, the Teamsters withdrew their representa-
tion petition and the employees in the body shop received
their profit-sharing plus interest.
In a similar fashion, Respondent had followed a procedure
of conducting an area wage survey and reviewing the results
for purposes of wage adjustments. Although the survey does
not automatically result in wage increases, usually some up-
ward adjustment can be expected. However, since no deter-
mination on wage adjustments had been made prior to the
Teamsters petition, Respondent determined to hold the wage
adjustments for body plant employees in an interest bearing
escrow account. As with the profit-sharing plan, employees
were told that the moneys due would be paid after the union
representation question had been resolved. In August, the af-
fected employees received their wage adjustments with inter-
est.
10. The discharge of Kenneth Wood
Wood had been working for Respondent almost 4 years
when he was discharged on January 12, 1990. On January
7, 1990, Wood and several employees met with representa-
tives of the Teamsters Union. On Monday, January 8, Wood
began distributing union authorization cards and flyers in Re-
spondent’s parking lot. This activity was open and observed
by at least two supervisors. In addition, Wood wore a Team-
sters hat at work.
On January 10, Wood attended a meeting held by Frank
Carmody to discuss the Teamsters union campaign. Wood,
wearing his union hat, asked several questions of Carmody
indicating his prounion stance. Wood was the only employee
to reveal a position contrary to Carmody’s antiunion mes-
sage.
On January 11, Wood was still attending a scrap team
meeting at the close of his shift. His crew leader, Randy
Rouse,3 helped put away Wood’s tools while the employee
was at the scrap team meeting. In putting away Wood’s
tools, Rouse found a wrench belonging to himself amongst
Wood’s tools. Rouse put his wrench away with Wood’s
tools. Rouse later reported that Wood had taken his wrench
without permission.
Respondent required its employees to furnish their own
personal hand tools. Wood had a wrench just like the one he
borrowed from Rouse but had repeatedly borrowed a second
one from Rouse. Wood credibly testified that he had often
borrowed the wrench in question from Rouse. Rouse admit-
ted at trial that the wrench went back and forth between him
and Wood. Rouse’s testimony that Wood did not have per-
mission to use this tool is not credited.4
On January 12, before work, Wood and Rouse, an out-
spoken antiunion activist, had a discussion about the Union
in which Rouse suggested that Wood leave the Company.
Rouse did not mention Wood’s alleged unauthorized bor-
rowing of his wrench. Just before noon, Wood was ap-
proached by John Owens, assistant plant manager, and Glenn
Hall, supervisor. Owens told Wood that another ‘‘employee
. . . has tools missing and he thinks you have them in your
box . . . we want to search your tool box.’’ Wood asked for
a witness and accompanied them back to his work bench.
Owens did not tell Wood that he was looking for Rouse’s
wrench which Wood was using. After Owens did not find
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Owens was not a credible witness. He testified that he was un-
aware of Wood’s union activities but was impeached by a prior writ-
ten statement admitting that he was aware of such activities. Further,
Owens first testified that the investigation consisted only of finding
the ‘‘missing’’ tool. Later, on being recalled to the stand, Owens tes-
tified that he did not question Wood or Wood’s witnesses because
Wood did not cooperate in the investigation. Since Owens did not
tell Wood what tool he was looking for, it would be very difficult
for Wood to have cooperated more than allowing Owens to search
his tools. Wood readily agreed to allow Owens to search his tools.
Owens simply choose to credit Rouse’s version of events over that
of Wood and Wreen. Wood offered the names of two witnesses
while Rouse had no one to corroborate his stories. Owens gave no
credible explanation for not talking to Wood’s witnesses after the
suspension. No explanation was given for the time period between
the suspension and the discharge. Owens stated the suspension was
pending further investigation. However, 1 hour later, he discharged
Wood without talking to the witnesses. One would think that with
an allegation as serious as ‘‘misappropriation of personal tools’’
Owens would talk to the witnesses. Further, knowing of Rouse’s
antiunion bias and Wood’s prounion stance, Owens might entertain
doubts as to the validity of Rouse’s claims. Wreen’s statements to
Owens also made Rouse’s claims doubtful, but Owens chose to base
all his actions on Rouse’s claims. I fail to see how Owens and Re-
spondent can claim that they investigated Rouse’s accusations.
6 Wreen credibly testified that he had borrowed the tool from
Rouse but had not yet returned it. He credibly denied that Rouse had
given him the tool. For the reasons stated above, I do not credit
Rouse’s testimony that he had given the tool to Wreen. As stated
earlier, I do not credit Owens’ testimony regarding his alleged inves-
tigation.
7 General Counsel offered the referee’s decision, finding that
Wood was not discharged for just cause, in evidence. I rejected the
offer. First, the issue before the referee was whether just cause had
been proven. That was not the same issue presented in the case be-
fore me. Second, the burden of proof was not the same. Third, the
referee’s decision simply stated that the referee credited Wood’s tes-
timony over that offered by Rouse. I reaffirm my ruling that the ref-
eree’s decision is hearsay.
I further find that this decision is not appropriate for deferral for
the following reasons. The Board will defer to an arbitrator’s deci-
sion where the following criteria are met: (1) The arbitral pro-
ceedings are fair and regular; (2) all parties must have agreed to be
bound; (3) the arbitral decision must not be repugnant to the policies
of the Act; (4) the contractual issue before the arbitrator must be fac-
tually parallel to the unfair labor practice issue; and (5) the arbitrator
must have been presented generally with the facts relevant to resolv-
ing the unfair labor practice. Dennison National Co., 296 NLRB 169
(1989); Teledyne Industries, 300 NLRB 780 (1990).
Applying the same reationale to the referee’s decision, I conclude
that deferral here would not be appropriate since the statutory issue
was not presented to or decided by the referee. The referee stated
that the issue presented was whether the employee had been dis-
charged for just cause. To determine this issue the referee did not
need to consider, and apparently did not consider, the facts necessary
to establish a violation of Sec. 8(a)(3) of the Act. The decision mere-
ly states that because Wood’s denials are credited, just cause has not
been established. The referee’s decision concerns only one issue rel-
evant to this case, the defense for the discharge, but is silent as to
the motivation for Respondent’s conduct, the crucial element of an
8(a)(3) case. Accordingly, I find that the unemployment compensa-
tion issue was not parallel to the unfair labor practice issue. Al-
though some of the facts were presented to the referee, the referee
did not decide the statutory issue. I, therefore, shall not defer to the
decision of the referee.
Rouse’s wrench, he asked Wood to see a nine-sixteenth
wrench and Wood showed Owens his wrench. Then Wood
remembered Rouse’s wrench which was on his work bench.
Wood then showed Owens the wrench and said he had bor-
rowed it from Rouse.
After Owens checked with Carmody, he suspended Wood
at approximately 12:40 p.m. Wood asked Owens whether
Owens believed that he had stolen the wrench. Owens an-
swered ‘‘No, Ken, I don’t. If you ask me, I really shouldn’t
be playing with you like this.’’ Thereafter, without talking to
Wood’s witnesses, at 1:30 p.m., Owens discharged Wood for
‘‘misappropriation of personal tools.’’ Owens testified that he
did not question Wood’s witnesses because Wood had not
cooperated in his investigation.5 Owens’ investigation con-
sisted of finding a tool Rouse had placed in Wood’s toolbox
the night before. Owens did not tell Wood what tool he was
looking for. Owens gave no credible explanation for not talk-
ing to Wood’s witnesses between the time that Wood was
suspended and the discharge 50 minutes later.
Employee Don Wreen, one of Wood’s witnesses who
could have established that Rouse had lent the wrench to
Wood, told Owens prior to the suspension and discharge that
he too had borrowed a tool from Rouse. Wreen asked Owens
if he would also be fired. Owens did not respond to Wreen.
Owens testified that he believed Rouse’s story that he had
given the tool to Wreen as a gift.6
Wood subsequently filed a claim for unemployment com-
pensation. Respondent contested this claim at a hearing be-
fore an appeal’s referee.7 In contesting this claim, Respond-
ent offered a written policy, dated October 1, 1986, stating
‘‘employees should not lend their tools to anyone.’’ How-
ever, the document submitted at that hearing was not authen-
tic. The true October 1, 1986 policy read ‘‘employees are
recommended not to lend their company issued tools to any-
one.’’ (Emphasis added.) No explanation for tendering this
false evidence was offered. Tom Alexander, director of
human resources and the official who produced the document
at the hearing, was present at the instant trial but was not
asked to explain the false document. The actual written pol-
icy was changed in 1990, approximately 1 month after
Wood’s discharge.
11. The discharge of Dennis Miller
Dennis Miller worked for Respondent approximately 2
years prior to his termination. General Counsel contends that
Miller was discharged but Respondent contends that Miller
resigned his employment in contemplation of returning to
school. Prior to his disputed termination, Miller had an out-
standing work record and had received excellent evaluations.
Miller signed a union authorization card for the Teamsters.
He wore a union hat one day and wore a union pin for sev-
eral days prior to his termination. General Counsel contends
that it was a bright yellow prounion T-shirt that denoted Mil-
ler as a leading union adherent. Miller wore this shirt in Jan-
uary and February 1990. There were no other prounion shirts
worn at the facility during that time period. Antiunion shirts
were worn during relevant time periods and prounion shirts
were worn sometime later in the year.
Alan Thomas, Miller’s supervisor, admitted knowing that
Miller wore the union T-shirt and that Miller had been an
outspoken union supporter. On the same date that the Team-
sters representation petition was filed, Miller was seen by
Thomas giving a union cheer as he was leaving a company
antiunion meeting.
805EMERGENCY ONE, INC.
8 Miller’s unemployment compensation application indicates, in
handwriting that is definitely not Miller’s, that Miller resigned. The
inference is that the handwriting belonged to the intake officer. The
intake officer was not called to testify. I do not know the basis for
that writing. I credit Miller’s testimony that he did not tell the intake
officer that he resigned. Having just vigorously argued this point
with Thomas, Moon, and Alexander, Miller was not likely to tell the
intake officer that he resigned.
Respondent argues that I should draw the inference that the intake
officer obtained the information concerning the resignation from
Miller. Without testimony from the intake officer, I believe, the in-
ference is just as strong, that the information came from a misunder-
standing or from contact with the employer’s representative.
On the same date as the Teamsters petition was filed, Mil-
ler asked Thomas what kind of notice the Company required
if he were to leave to go to college. Miller also asked wheth-
er there were any job possibilities at Respondent’s Gaines-
ville facility which was much closer to Miller’s home. Miller
was interested in working at the Gainesville facility even if
he went to school. At the time of this conversation, Miller
had applied to the University of Florida in Gainesville but
would not learn whether he was accepted until 4 to 6 weeks
later.
On March 5, Thomas called Miller into his office and had
supervisor Mike Ferrell there as a witness. Thomas told Mil-
ler ‘‘we’re terminating you due to overstaffing and . . . the
work situation’’ and ‘‘you’re definitely up for rehire.’’ Miller
made a comment to the effect that he was expecting this.
However later, when Miller stated that he would be filing for
unemployment compensation, Thomas stated, ‘‘we’re not fir-
ing you. We’re accepting your early resignation.’’ Miller in-
sisted that he had not resigned. He also stated that if he was
eligible for rehire, he wanted to be rehired immediately.
Thomas called Plant Superintendent Dick Moon to speak
with Miller. Miller told Moon that he had never resigned and
wanted to remain in Respondent’s employ. Moon listened to
Miller’s denials but stated that the resignation would stand.
Thomas and Ferrell escorted Miller from the premises. The
next day, Miller returned to the plant to speak with Tom Al-
exander, director of human resources. Miller insisted that he
had not resigned and asked for his job back. Miller argued
that he was eligible for rehire and if a mistake had been
made, he should simply be allowed to go back to work. Al-
exander produced a written statement from employee Barry
Artman who had overheard Miller’s March 1 conversation
with Thomas. Artman and another witness, Marty Workman,
were summoned to Alexander’s office. Artman and Work-
man gave equivocal answers, neither stating that Miller had
resigned.
Artman had given a written statement stating that Miller
had ‘‘made mention’’ of giving a notice. I find that con-
sistent with Miller’s testimony that he asked how much no-
tice was required. At the instant hearing, Artman testified
that Miller said ‘‘he had planned to go back to school, in the
fall if everything went right.’’
Alexander testified that the statement was requested from
Artman on March 1 or 2. Alexander said the statement was
taken in case there was some doubt about whether Miller had
resigned. If there was some doubt, why not just ask Miller?
To avoid doubt, why not ask Miller to put his notice in writ-
ing? Alexander could offer no reasonable explanation. His
actions appear inconsistent with his position that what oc-
curred was simply the acceptance of a routine resignation.
On March 7, Miller delivered to Respondent’s personnel
office a letter explaining what had happened and insisting
that he had never resigned. Miller submitted a copy of this
letter to the State Department of Employment Security. Mil-
ler submitted such an explanation to the unemployment of-
fice because he was concerned that the intake officer had be-
lieved that he had resigned.8 Miller obtained employment
elsewhere and did not pursue the unemployment claim.
Respondent offered evidence that it was overstaffed in
Miller’s welding crew. Miller has not been replaced. Further,
the record shows several other instances where Respondent
has acted on a notice and terminated the employee prior to
the employee’s requested termination date. However, those
situations involved either unsatisfactory employees or em-
ployees having access to trade secrets. Such circumstances
were not applicable in the instant case.
Respondent offered testimony from two other witnesses to
support the contention that Miller gave a 30-day notice of
resignation. Tom Hagans, a fellow employee, testified that in
late 1989, Miller told him that Miller would have to resign
from the company bowling team because Miller was going
back to school full time. Miller resigned from the team in
the fall or winter of 1989. While I credit Hagans’ testimony,
I find it not persuasive. Miller was contemplating going back
to school for sometime. However, in the fall of 1989, and
even as late as March 1990, Miller had no idea of whether
he would be accepted by the university. In fact, in April,
Miller learned that he had not been accepted by the univer-
sity. He subsequently enrolled elsewhere.
Cynthia Prince, a former human resources assistant, testi-
fied that in March of 1990, Miller told her that he had given
30-day notice to quit and wanted to know what paperwork
was necessary for claiming his accrued benefits. I do not
credit Prince’s testimony. Rather, I credit Miller’s expla-
nation that he asked some questions about the benefit plans,
employment in Gainesville and returning to school, but that
he never told Prince or anyone else that he had given 30-
day notice.
B. Analysis and Conclusions
1. The 8(a)(1) allegations
a. The peer review panel
It is well settled that, in deciding whether to grant benefits
while a representation election is pending, an employer
should act as if no union were in the picture. Centre Engi-
neering, 253 NLRB 419, 421 (1980). The Board does not
automatically find that grants of benefits during an organiza-
tional campaign to be unlawful, but it presumes that such ac-
tion will be objectional ‘‘unless the Employer establishes that
the timing of the action was governed by factors other than
the pendency of the election.’’ American Sunroof Corp., 248
NLRB 748 (1980); Honolulu Sporting Goods, 239 NLRB
1277 (1979).
Applying these principles to the instant case, I find that
Respondent lawfully included the peer review panel in its re-
vised employee handbook. It appears the peer review lan-
guage was drafted prior to any union activity and, thus, for
reasons other than the pendency of the union campaign.
806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
There is no evidence that Respondent attempted to use the
peer review to discourage union activities. Finally, as indi-
cated earlier, Respondent did not utilize the peer review be-
cause an unfair labor practice complaint had been authorized.
b. The alleged surveillance
I have credited the testimony of the Respondent’s wit-
nesses that Supervisors Dean and Fosson helped carry
antiunion T-shirts to the employee break area. However,
Dean and Fossom did not distribute shirts to employees. The
shirts were left in the employee break room and were thereby
made available to employees. I find no credible evidence that
Respondent took notes or otherwise recorded who took or
wore the shirts. To the extent that former employee English
testified to the contrary, his testimony is not credited. Ac-
cordingly, I find no evidence to support this allegation of the
complaint.
c. The alleged threats by Baker and Flinn
I have credited former employee Jim Taub’s testimony
that he told his supervisor Scott Flinn that he was trying to
organize the employees for the IUE. Flinn answered that he
didn’t want to hear anymore and cautioned Taub that the em-
ployee could lose his job.
I have credited the testimony of William Vinyard that
Stanley Baker insisted that something was wrong, and Vin-
yard asked if Baker meant the Union. Baker said yes, and
asked what the employees wanted. Vinyard answered, better
medical benefits, better pay scale, and fairer treatment from
supervisors. Baker stated ‘‘it’s a right to work state and the
company doesn’t have to negotiate with the union.’’ Baker
then asked ‘‘what would happen if the union came in with
fifty-one percent and the company wouldn’t agree to the con-
tract.’’ Vinyard answered, ‘‘Well, we’d probably end up on
strike.’’ Baker said Vinyard would be on the other side of
a picket line and asked what would happen. Vinyard an-
swered the Company would probably hire replacements.
Baker answered that Vinyard was right. Baker cautioned
Vinyard to think the matter over. He suggested that if Vin-
yard changed his mind, other employees would follow the
lead. Baker said he would not like to see Vinyard ‘‘go down
the road.’’
Accordingly, I find that Respondent, through Baker and
Flinn, unlawfully threatened reprisals if employees engaged
in union activities.
d. The alleged prohibition of union discussions
I have found that Flinn told Taub and four other employ-
ees that Flinn did not want any union talk on company
hours. The employees who worked under Flinn in the parts
assembly area had been permitted to talk about any subject
as long as they kept working. The undisputed evidence estab-
lishes that Flinn allowed these employees to discuss any
topic, work related or not, as long as it did not interfere with
their work duties. According to Taub, Flinn stated that union
talk was not allowed but made no mention of any other sub-
ject.
The evidence establishes that Flinn restricted conversations
about the Union while still permitting general conversations.
Accordingly, I find that Respondent violated Section 8(a)(1)
by such action. See Magnolia Manor Nursing Home, 284
NLRB 825, 829 (1987); F. Mullins Construction, 273 NLRB
1016, 1022–1023 (1984).
e. The alleged restriction of Taub’s movements
In late February 1989, Taub, then an acting crew leader,
was placed in a parts department assignment in the electrical
department. Taub was told that as part of a job rotation he
was being assigned to the prefab area. That was a fenced-
in area in which Taub prefabricated certain parts. I credit
Taub’s testimony that Supervisor Scott Flinn told him that he
could not leave his area, even to go to the bathroom, without
permission. When Taub protested, Flinn responded that he
also had bosses. A few days later, when Taub again protested
this assignment, Flinn stated, ‘‘Why did you start this Union
shit anyway?’’
Even assuming that the rotational program was a normal
and routine company undertaking, Flinn’s statements could
only imply that Taub’s movements were being restricted be-
cause he had engaged in union activities. As set forth above,
I have found that Flinn implied that reprisals would be taken
against Taub for his union activities. Coupled with Flinn’s
statements about the assignments, Taub would reasonably
conclude that his assignment was based on union consider-
ations. Accordingly, I find that Respondent violated Section
8(a)(1) of the Act.
f. The alleged impression of surveillance
The credited testimony establishes that Vice President
Frank Carmody actively encouraged employees ‘‘to get both
sides of the story.’’ Carmody announced where the union
meetings were being held and offered to give the names of
the employees that could be contacted for more information.
I find that Carmody’s views did not contain any threat of
reprisal or force or promise of benefit. I do not find that his
statements implied that Respondent kept the union activities
of its employees under surveillance nor did Carmody suggest
reprisals against those attending the meetings. Rather,
Carmody suggested employees attend the meetings to get
more information. While Carmody’s statements did imply
that he had information about union activities, there was no
suggestion that the information would be used against em-
ployees.
g. The overly broad no-distribution rule
Respondent admitted at the hearing that its rule prohibiting
distribution of any written or printed matter of any kind, at
any time, is overly broad. Distribution may be prohibited
both during working time and in working areas. However,
the rule here extends to any area and at any time. I therefore,
find that Respondent violated Section 8(a)(1) of the Act.
h. The threats of discharge by Lavish
I have credited the testimony of employee Fitzgerald that
the threat allegedly made by Lavish was made by another
rank-and-file employee. I have also credited Lavish’s denials.
Accordingly, I do not credit the testimony of former em-
ployee Gary Stidham that Lavish threatened that employees
could lose their jobs because of the Union. Accordingly, I
find that no credible evidence supports this allegation of the
complaint. Based on my credibility determinations, I also
807EMERGENCY ONE, INC.
find no evidence that Lavish interrogated Stidham as alleged
in the complaint.
i. The withholding of the profit-sharing distribution and
wage adjustments
The undisputed facts show that the profit-sharing distribu-
tions and wage adjustments were held in escrow for the em-
ployees covered by the Teamsters petition. The employees at
the other facilities received their payments as scheduled. The
employees at the body plant received their payments, with
interest, in August after the Teamsters petition was with-
drawn. The employees were notified that the payments would
be held in escrow until the representation question was re-
solved.
As mentioned earlier, the Board’s general rule is that an
employer’s legal duty during a preelection campaign period
is to proceed with the granting of benefits, just as it would
have done had the union not been on the scene. See, e.g.,
American Telecommunications Corp., 249 NLRB 1135
(1980). Thus, if an employer withholds wage increases or ac-
crued benefits because of union activities, and so advises em-
ployees, it violates the Act. Liberty House Nursing Home,
236 NLRB 456 (1978). However, where employees are told
expected benefits are to be deferred pending the outcome of
an election in order to avoid the appearance of election inter-
ference, the Board will not find a violation. Truss-Span Co.,
236 NLRB 50 (1978).
Applying these principles to the facts of the instant case,
I find that Respondent informed the employees, at the time
of the deferral, that the sole reason for its deferral of the
benefits was to avoid the appearance that it was attempting
to unlawfully affect the representation election. Respondent
acted consistently with its expressed reasons and the employ-
ees suffered no losses. Thus, I find the evidence establishes
that the sole reason for the deferral of the benefits was to
avoid the appearance of impropriety. I note that prior to
these events, the Respondent had been accused of unlawfully
granting benefits in the IUE campaign. Accordingly, I find
that Respondent did not violate the Act in deferring the
granting of these benefits nor did Respondent unlawfully at-
tribute the deferral to the Union. Centre Engineering, supra.
2. The discharge of Ken Wood
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation. First, the General
Counsel must make a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘‘motivating
factor’’ in the employer’s decision. On such a showing, the
burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the
protected conduct. The United States Supreme Court ap-
proved and adopted the Board’s Wright Line test in NLRB
v. Transportation Corp., 462 U.S. 393, 399–403 (1983).
Based largely on demeanor and credibility, I have found
that employee Randy Rouse fabricated a story that was uti-
lized by Respondent to discharge Wood. Rouse had a wrench
which Wood had often borrowed. Rouse knew that Wood
had the wrench but he reported that Wood had stolen the
wrench. Rouse’s animosity against unions and Wood for sup-
porting the Union was established by credible evidence.
Rouse told employees that the Company had sought ‘‘com-
plaints or anything against Ken’’ and that if he hadn’t helped
cause Wood’s discharge, action would have been taken
against him. To lend support to his falsehood about the
wrench, Rouse then lied about the tool that Wreen had bor-
rowed, untruthfully claiming that he had given it as a gift.
It seems clear that Rouse caused Wood’s discharge and
that he was motivated, at least in part, by union animus.
However, Rouse was not a supervisor for Respondent and
has not been shown to be an agent of Respondent. Therefore,
Rouse’s knowledge and animus cannot be imputed to Re-
spondent. Further, Rouse’s admissions that he set up Wood
for discharge at Respondent’s request are hearsay as to Re-
spondent. The burden rests on General Counsel to show that
Respondent was motivated by union considerations in acting
on Rouse’s complaint and discharging Wood. For the follow-
ing reasons, I find that General Counsel has met that burden.
John Owens, assistant plant manager, knew that Wood was
a leading union adherent and that Rouse was a leader of the
antiunion employee group in the plant. Owens, claiming to
have investigated the matter, did nothing but find the wrench
Rouse had placed in Wood’s toolbox the night before. Prior
to Rouse’s prevarication, Wood had been a fine employee
who had received excellent evaluations. Owens never asked
Wood how the employee had acquired the wrench nor did
he attempt to verify Wood’s claim that he had borrowed it
from Rouse. Owens discounted the word of employee Wreen
who told him that he too had borrowed a tool from Rouse.
Owens preferred to believe Rouse’s story that he had given
the tool to Wreen.
Owens’ conduct reveals an investigation designed not to
find out what occurred but rather to support a discharge of
Wood. Owens admitted to Wood that he did not believe that
Wood had stolen the wrench and stated, ‘‘I shouldn’t be
playing with you like this.’’ I find that statement to be an
admission that Owens knew that there was no validity to the
charge of misappropriation. That admission also explains
why Owens did not contact the two witnesses whose names
had been given to him by Wood. There was no explanation
given why those witnesses could not have been interviewed
between the suspension and the discharge of Wood. Owens
said Wood was suspended pending further investigation.
However, an hour later, Owens discharged Wood without
any investigation. Owens’ testimony that he did so because
Wood did not cooperate in his investigation is not helpful to
Respondent’s case. Wood permitted Owens to search his
toolbox. That was the extent of Owens’ investigation. With-
out knowing what Owens was looking for, it appears that
Wood couldn’t have cooperated to any further extent. It
seems clear that Owens was simply searching for some rea-
son to justify not talking to the two employees named by
Wood as witnesses.
Further evidence of discriminatory motive can be found in
Respondent’s defense of the unemployment claim. At the un-
employment hearing, Respondent offered a false or
backdated policy stating that employees were not to lend
their tools to anyone. The policy in effect at the time of
Wood’s discharge stated that employees were recommended
not to lend company tools. It is well settled that when the
asserted reasons for a discharge fail to withstand examina-
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Farrell was present as a witness. Respondent never explained
why a witness was necessary to accept a voluntary resignation. An-
other supervisor acts as a witness in the case of adverse actions.
However, in this case, Thomas was allegedly accepting a voluntary
resignation.
tion, the Board may infer that there is another reason—an
unlawful one which the employer seeks to conceal—for the
discharge. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d
466, 470 (9th Cir. 1966); Louisiana Council No. 17,
AFSCME, 250 NLRB 880, 886 (1980); Reno Hilton, 282
NLRB 819 (1987).
The timing of the discharge, the fact that an excellent em-
ployee was discharged without being given the opportunity
to defend himself, the animus established by the contempora-
neous unfair labor practices and the false reasons given for
the discharge establish a strong prima facie case that the dis-
charge was motivated by the employee’s union activities.
The burden shifts to Respondent to establish that the same
action would have taken place in the absence of Wood’s pro-
tected conduct. Rather than rebutting the prima facie case,
Respondent’s defense strengthened it. The reasons given by
Owens for the discharge simply do not withstand scrutiny.
There was an accusation by Rouse, an outspoken union an-
tagonist, against Wood, a leading union adherent. However,
Owens took no steps to interview Wood’s witnesses and he
ignored Wreen who volunteered information which would
have supported Wood and cast doubt on Rouse. Owens ad-
mitted to Wood that he didn’t believe that Wood had stolen
the wrench and implied that he was just following orders in
discharging Wood for this spurious reason. Unlike Rouse,
Owens was a supervisor and agent, and therefore, his knowl-
edge and motives can be imputed to Respondent. Accord-
ingly, I find that Respondent discharged Wood in violation
of Section 8(a)(3) of the Act.
3. The discharge of Dennis Miller
I have found based largely on credibility that Dennis Mil-
ler did not resign from Respondent’s employ. Miller asked
questions concerning employment at Respondent’s Gaines-
ville facility and also about how much notice Respondent
would want if Miller returned to school. Miller asked these
questions of his supervisor on March 1, 1990. Four days
after the petition was filed, Thomas told Miller that his res-
ignation had been accepted. Respondent had already acquired
a statement from employee Barry Artman, drafted by some-
one in its labor relations department, stating that Miller had
indicated an intention to resign. Miller was never asked to
put his resignation in writing. Rather than ask Miller to re-
solve any question of whether he was offering his resigna-
tion, Respondent authored a statement for an employee to
sign in order to establish that Miller resigned. Similar to the
Wood incident, Respondent was not interested in the facts,
i.e., whether Miller had submitted a resignation or not. Rath-
er, Respondent was intent on establishing a defense for the
termination.
Miller insisted to Thomas, and Supervisor Farrell,9 that he
had not resigned. Miller then informed Alexander, the offi-
cial apparently responsible for the false tool policy in the
Wood unemployment hearing, that he had not resigned and
that he wished to continue his employment. Alexander,
knowing that Miller was an excellent employee and eligible
for rehire, refused to allow Miller to cancel the resignation.
Alexander told Miller that he would adhere to Thomas’ con-
clusion that Miller had given a 30-day notice. Miller was
quickly ushered out of the plant.
I find the timing of the discharge, the fact that an excellent
employee was discharged for a false reason, and the animus
established by the contemporaneous unfair labor practices,
particularly the unlawful discharge of Wood, establish a
prima facie case that the layoffs were motivated by Miller’s
union activities.
The burden shifts to Respondent to establish that the same
action would have taken place in the absence of Miller’s pro-
tected conduct. The reasons given by Thomas for the termi-
nation simply do not withstand scrutiny. There was no res-
ignation; simply an inquiry as to whether there were open-
ings at the Gainesville facility and how much advance notice
was required if Miller returned to school. Alexander’s al-
leged review of the controversy was as suspicious as the al-
leged investigation of the Wood situation. Respondent, rather
than attempting to clarify any doubt, sought to establish
through a prepared statement that Miller resigned. It was not
interested in whether he resigned; only in proving that he
had.
The facts establish that Respondent did not replace Miller
or fill his position. However, I do not find that evidence con-
vincing. Respondent had a need for experienced welders
through its facility and did not lay off any welders. Finally,
while Respondent has in the past accepted resignations of
employees prior to the effective date requested by the em-
ployee, those situations involved either unsatisfactory em-
ployees or employees having access to trade secrets. Such
circumstances were not applicable in the instant case. Ac-
cordingly, I find that Respondent has not overcome the prima
facie case.
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action designed
to effectuate the purposes and policies of the Act.
I shall recommend that Respondent offer Ken Wood and
Dennis Miller full and immediate reinstatement to the posi-
tions they held prior to their unlawful discharges.
Further, Respondent shall be directed to make Wood and
Miller whole for any and all loss of earnings and other
rights, benefits, and emoluments of employment they may
have suffered by reason of Respondent’s discrimination
against them, with interest. Backpay shall be computed in the
manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as provided in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987); see also Florida Steel
Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 139
NLRB 716 (1962).
Respondent shall also be required to expunge any and all
references to its discharges of Wood and Miller from its files
and notify Wood and Miller in writing that this has been
done and that the discharges will not be the basis for any
adverse action against them in the future. Sterling Sugars,
261 NLRB 472 (1982).
809EMERGENCY ONE, INC.
10 All motions inconsistent with this recommended Order are de-
nied. If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The IUE and the Teamsters are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following acts and conduct:
(a) Threatening employees with reprisals for engaging in
union activities.
(b) Restricting conversations about unions while permitting
conversations about other nonwork matters.
(c) Threatening employees by telling them that their as-
signments were adversely affected by their union activities.
(d) Promulgating an overly broad no-distribution rule.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by discharging employees Ken Wood and Dennis Miller be-
cause of their union activities.
5. Respondent has not otherwise violated the Act as al-
leged.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Emergency One, Inc., Ocala, Florida, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with reprisals for engaging in
union activities.
(b) Restricting conversations about unions while permitting
conversations about other nonwork matters.
(c) Threatening employees by telling them that their as-
signments were adversely affected by their union activities.
(d) Promulgating an overly broad no-distribution rule.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
(f) Discharging employees in order to discourage union
membership and activities among its employees.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate employment to former employees Ken
Wood and Dennis Miller to the position they would have
held, but for Respondent’s wrongful discharge of them.
(b) Make whole Wood and Miller for any and all losses
incurred as a result of Respondent’s unlawful discharge of
them, with interest, as provided in the remedy section of this
decision.
(c) Expunge from its files any and all references to the
discharges of Wood and Miller and notify them in writing
that this has been done and that the fact of Respondent’s dis-
charge of them will not be used against them in any future
personnel actions.
(d) Post at each of its Ocala, Florida facilities copies of
the attached notice marked ‘‘Appendix.’’11 Copies of the no-
tice, on forms provided by the Regional Director for Region
12, after being signed by Respondent’s authorized representa-
tive, shall be posted for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of the Order what steps Respondent has taken
to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten employees with reprisals for engag-
ing in union activities.
WE WILL NOT restrict conversations about unions while
permitting conversations about other nonwork matters.
WE WILL NOT threaten employees by telling them that
their assignments were adversely affected by their union ac-
tivities.
WE WILL NOT promulgate an overly broad no-distribution
rule.
WE WILL NOT in any or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
WE WILL NOT discharge employees in order to discourage
union membership and activities among out employees.
WE WILL offer immediate employment to former employ-
ees Ken Wood and Dennis Miller to the position they would
have held but for our wrongful discharge of them.
WE WILL make whole Wood and Miller for any and all
losses incurred as a result of our unlawful discharge of them,
with interest.
WE WILL expunge from our files any and all references to
the discharges of Wood and Miller and WE WILL notify them
in writing that this has been done and that the fact of our
discharge of them will not be used against them in any future
personnel actions.
EMERGENCY ONE, INC.