Fieldston Ambulance & Medical Systems, Ltd.

National Labor Relations Board - Board Decisions

May 14, 1979

242 N.L.R.B. 185 (N.L.R.B. 1979)

FIELDSTON AMBULANCE & MEDICAL SYSTEMS
Fieldston Ambulance & Medical Systems, Ltd. and
Joseph Franqui and Edward Mitchell and Local
531, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Party in Interest. Cases 2-CA-15349 and 2-
CA- 15350
May 14, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On February 14, 1979, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Fieldston Ambulance
Systems, Ltd., New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the Ad-
ministrative Law Judge.
I In the absence of exceptions thereto, we adopt, proforma, that portion of
the Administrative Law Judge's recommended Order requiring the Respon-
dent to reimburse employee Franqui for dues withheld prior to Franqui's
execution of a checkoff authorization.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT deduct union dues from the pay
of employees who have not executed checkoff
authorizations.
WE WILL NOT discriminate against any of our
employees by denying their coverage under the
collective-bargaining agreement with Local 531.
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
and by otherwise refusing to grant employees
wage increases and/or other employment bene-
fits because they are not members of the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their right to self-organization, to form
labor organizations, to join or assist the above-
named Union or any other labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in other con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection or to
refrain from any or all such activity.
WE WIL offer Joseph Franqui and Edward
Mitchell immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substanially equivalent positions without
prejudice to their seniority or any other rights or
privileges previously enjoyed, and WE WILL make
them whole for any loss of earnings they may
have suffered as a result of the unlawful discrimi-
nation against them, with interest.
FIELDSTON AMBULANCE & MEDICAL SYS-
TEMS, LTD.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS Administrative Law Judge: Pursuant
to unfair labor practice charges filed by Joseph Franqui and
Edward Mitchell, individuals, a hearing in this matter was
held upon a consolidated complaint issued by the Regional
Director and an answer filed by Fieldston Ambulance &
Medical Systems, Ltd. (Respondent).'
Upon the entire record, including my observation of the
demeanor of witnesses and consideration of briefs I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation engaged in pro-
viding ambulance and related services in New York, New
York. All parties agree and I find that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
11. THE UNION
Local 531, International Brotherhood of Teamsters,
Chauffeurs. Warehousemen and Helpers of America, herein
I On motion of the General Counsel a portion of the complaint dealing
with an alleged discriminatee. Luis Rodriquez, was dismissed.
242 NLRB No. 34
185
DE[CISIONS OF NATIONAl. LABOR RELATIONS BOARD
called "Union," is a labor organization within Section 2(5)
of the Act.
111. 11ft NIAIR LABO()R PRA( II( tS
The Union is the statutory representative of an appropri-
ate unit of Respondent's full-time and regular part-time em-
ployees at its New York facility, excluding office clerical
employees, salesmen, guards. professional employees, confi-
dential employees, and all supervisors as defined in the Act.
The Union entered into two successive collective-bar-
gaining agreements with the Respondent. The initial con-
tract was in existence from May 1974 through May 1977.
The second and current agreement runs from May 1977
through January 31, 1979. The contract contains a union-
security proviso whereby employees are to become union
members on the 31st day of employment. The parties stipu-
lated that employees need not become members of the
Union before they are entitled to contractual benefits under
the contract.
The General Counsel alleges in the complaint as
amended and in part in the brief that: (I) Respondent de-
ducted union dues from the paychecks of Joseph Franqui
and Edward Mitchell before they had executed dues-check-
off authorizations, in violation of Section 8(a)( 1) and (2) of
the Act: (2) Respondent paid Franqui and Mitchell at low-
er rates than other unit employees because Franqui and
Mitchell were not union members, in violation of Section
8(a)(l) and (3) of the Act: (3) Respondent refused to pay'
Franqui and Mitchell the holiday rate set forth in the col-
lective-bargaining agreement because they were not union
members, in violation of Section 8(a)( I) and (3) of the Act:
and (4) Respondent discharged Franqui and Mitchell be-
cause they' sought the assistance of the Union in resolving
their dispute with Respondent over matters of wages and
scheduling of hours of work, in violation of Section 8(a)( 1)
and (3) of the Act.
Sylvia Kann is a co-owner of Respondent and an admit-
ted supervisor. Part of' her duties involve the dispatching of
ambulances to and from St. Luke's Hospital. where she is
stationed. Respondent maintains its garage at about 15
minutes travel time from that hospital. Lanning Kann, Sr..
son of Sylvia Kann. is the president and chief operating
officer of the Respondent. Rick Richardson, while em-
ployed by Respondent until mid-October 1977. held the po-
sition of dispatcher at the garage and admittedly was a su-
pervisor within the meaning of the Act and, thus, an agent
of the Respondent at all times material during his employ-
ment.
Joseph Franqui obtained his employment with Respon-
dent pursuant to the recommendation of Richardson, who
was a friend of Franqui's mother, Rudene Franqui. He was
considered by Richardson as a godson. Franqui was hired
as a helper on June 15, 1977 (all dates herein are 1977).
Several weeks later, he also assumed the duties of an ambu-
lette driver. Franqui was hired at a rate of $125 per week
and was told by Richardson that he would be raised to $138
when he assumed the duties of a driver. However, Franqui
received no raise until September 12. the date upon which
union dues commenced to be deducted from his paychecks.
Franqui did not in fact join the Union or authorize any
deductions of dues until October 5.
Edward Mitchell applied for a job in an interview with
Sylvia Kann in June. She referred him to Richardson.
Mitchell commenced employment on July 26 as a helper
and ambulette driver. Mitchell was told by Richardson that
he was to start at a rate of $125 per week, and that after 30
days he would receive a wage increase to $135. Mitchell
received no wage increase until October 3 despite his driver
duties. He testified that he joined the Union and authorized
dues deductions in the week ending October 10. Union dues
were deducted from Mitchell's pay on or about October 3.
The collective-bargaining agreement then in effect pro-
vided for a wage rate of $128 for the first 30 days of em-
ployment, and $138 a week thereafter, for helpers and
ambulette drivers.
In August, Franqui and Mitchell registered for an emer-
gency medical technician training course which was to be
held on Tuesday and Thursday evenings from September
20 through December. They notified Respondent of their
enrollment and attempted to have Richardson modify their
schedules so that they might be able to leave work earlier
on those days to attend the course without any loss of work-
time. Respondent's attempts to accomodate them proved
unsatisfactory. They testified that their work schedules were
ultimately reduced in order for them to attend the course,
and that their wages were adversely affected.
On October II, Franqui. Mitchell. Rudene Franqui. and
Frank Vanderpool, a friend of the Franqui family, paid a
spontaneous visit to the union offices where they met with
union officers Biasucci and Kranitz. The employees set
forth their complaints regarding their past wage rate differ-
ential and scheduling problems. By happenstance, Lanning
Kann was present at the union office in another room to
resolve a dispute between Respondent and the Union con-
cerning an alleged nonpayment of certain benefit funds
owed by Respondent to the Union. Biasucci and Kranitz
had interrupted their discussion with Lanning Kann in or-
der to talk to these employees of Respondent who suddenly
appeared on the scene. After listening to these employees,
Biasucci summoned Kann to discuss the matter with these
visitors. Kann listened to their complaints and, according to
the uncontradicted and credible testimony of General
Counsel's witnesses, responded by demanding to know why
they had come to the union offices and further admonished
them that their problem could have been resolved else-
where. Mitchell and Franqui asserted that appeals previ-
ously made to Sylvia Kann, to Richardson, and to the
union steward at the garage were unavailing. Kranitz re-
ferred to contractual provisos concerning outside training
courses. Ultimately', Lanning Kann agreed to reimburse
Franqui and Mitchell for lost wages and after some initial
resistance he also agreed to work out an accomodation as to
their work schedule. Kranitz told the employees to report
for work the next day.
Lanning Kann testified that his commitment to resolving
the complaints of Franqui and Mitchell was made in
"vague" terms All other participants to that meeting, in-
cluding Krantiz. who was called as a Respondent witness,
testified that a commitment was indeed made and I so find.
If there was anything vague about it, it was kept within
Kann's mind as he decided to return to his office and "look
into" the matter and "get all the facts" and "investigate."
He then ordered Richardson to terminate Franqui and
186
FIELDSTON AMBlI.ANCE & MEDICAL SYSTEMS
Mitchell, shortly after his return to the office. According to
Richardson's uncontradicted and credible testimon. l.an-
ning Kann returned from the meeting and told him that he
had been at the union office at a meeting with Franqui and
Mitchell and had received a "lot of static." that Franqui
and Mitchell were "screwing up the whole thing. Get rid of
them," he said, adding that he could not deal with it. and
that there was a "whole lot of hassle with the Union."
Lanning Kann admittedly ordered Richardson to termi-
nate Franqui and Mitchell and further ordered Richardson
to tell them that it was because of a lack of work.
On October 12. Franqui and Mitchell reported for work
and encountered Sylvia Kann, who told them in the pres-
ence of Richardson and upon Richardson's confirmation
that there was no work for them that day. Later, after they
had returned home, Richardson telephoned Franqui and
told him that he was laid off because of Respondent's "fi-
nancial problems" and because his school attendance was
causing confusion in the scheduling. Mitchell was also
called and informed that he was laid off because of "finan-
cial problems." Both were told to turn in their uniforms.
On October 13, Mitchell and Franqui returned their uni-
forms and encountered Richardson, who showed them let-
ters addressed to them, copies of which he promised were to
be forwarded to them later. The letters stated that they
were laid off for economic reasons and that they were good
employees. Richardson told Franqui that he had gotten
Richardson "in trouble" and caused a "mess." They never
received those letters.
On October 25, a meeting was held at the union office
with Franqui, Mitchell, William Martin, an attorney and
friend of Mitchell's, Biasucci, Kranitz, Lanning Kann, and
Sylvia Kann. The terminations were discussed, and the
Kanns asserted for the first time to the employees that they
were discharged, according to Sylvia Kann because of
Mitchell's alleged tardiness of 17 occasions and Franqui's
tardiness of 15 occasions as well as the assertion that Fran-
qui had only been hired as a summer employee upon the
understanding that he was to attend medical school. The
last assertion was greeted with laughter by Rudene Fran-
qui.
Lanning Kann testified that when he returned from the
October II meeting at the union offices, he engaged in an
investigation. He was asked in direct examination just what
he investigated, and he testified as follows:
A. Well, I was told at the Union office that I had
refused to make any shift changes so that these gentle-
men could go to school. I was aware that I was not
required to do this because of the positions they held.
But in looking through the records I had found that I
did make a shift change, and these gentlemen did not
show up for their shift that they were changed to. And
they showed up, but they were about an hour and a
half or two hours late. That in conjunction with the
fact of stealing of time, which is grounds for automatic
dismissal, and the basis that I was being pulled on the
carpet for going as far as I could to give them every
benefit I could, I just felt it was wrong for them to
continue employment with me.
Q. You said you were being pulled on the carpet.
Who was pulling you on the carpet?
A. Well, I was at the Union and the next thing I
fiound out I was the bad guy. I was the one who
wouldn't give them time off to go to school. and I
wasn't paying them proper wages, and I was being an
employer with bad faith. so I investigated that matter.
Thus, Lanning Kann clearly admitted that one of the
bases for the discharge of Franqui and Mitchell was their
engaging in concerted activities protected by the Act: i.e.,
the seeking of the assistance of the Union and the presenta-
tion of complaints concerning working conditions. l.anning
Kann's testimony with respect to the other bases is inconsis-
tent. shifting, improbable. and accompanied b a hesitant
and unconvincing demeanor.
An abortive attempt was made in his testimony to estab-
lish an economic basis for the layoffs: i.e., business was
down. This was supported only with his testimony that the
doctors usually take summer vacations which extend until
Thanksgiving holiday. He did not testitly, however. that hu-
man beings suspend the need for all hospital transportation
during that incredibly excessive holiday period. Respondent
strongly resisted efforts b counsel for the General Counsel
for the production of documentary evidence concerning
that period of time on the contention that a downturn in
business profits was not its defense. Lanning Kann did not
explain why he hired Franqui and Mitchell in June and
July if business was supposedly at that time in a seasonal
decline. He did not explain why he kept them on the pay-
roll almost until the end of the slack period and then laid
them off when the resumption of business was supposedly
nearly at hand. Finally. LIanning Kann admitted that eco-
nomics played only a small part, i.e., "25 percent," and then
conceded that he would have discharged Franqui and
Mitchell in any event.
The assertion at the October 25 meeting that Franqui
was hired as a temporary part-time employee is palpably
unbelievable. He was not a part-time employee because he
in fact worked on a full-time basis. I credit Franqui's testi-
mony that he was never told that his tenure was in any way
qualified. In this respect, he was corroborated by Richard-
son. I discredit Lanning Kann's testimony that upon Fran-
qui's hire he had scribbled "Hired for summer help" on the
job application form in June. He failed to testify that he
ever informed Franqui or Richardson that Franqui was a
temporary summer employee. At the October II meeting,
he did not raise any argument that there was no point in
adjusting the fall work schedule of an employee who was
hired to work for only the summer, a supposedly slow sea-
son. Clearly, Lanning Kann was initially concerned about
what he perceived as a disruption-a training course that
lasted through December--and whatever he ma) have
originally had in mind for Franqui's tenure, he had by Oc-
tober I assumed a stance toward Franqui as a permanent
employee.
With respect to the allegation of tardiness, L.anning
Kann's first reference to tardiness came within the context
of his investigation which was admittedly prompted by the
employees' union activities: i.e., the presentation of com-
plaints concerning working conditions with the assistance
of the Union. At that time. Lanning Kann purportedly sud-
denly realized that he had alread, accommodated the em-
187
DECISIONS OF NATIONAIl LABOR RELATIONS BOARD
ployees and that they had abused his efforts hb coming in
tardy on the schooldays.
The employees' testimony is far more credible. Sylvia
Kann did not contradict testimony that Franqui and
Mitchell had continuing complaints as to the schedule.
Lanning Kann admittedly took an initial position that he
was not obliged to accommodate them. He did not contra-
dict testimony of Vanderpool that he made arguments at
the October I meeting about the disruptive nature of a
modified schedule, and that he stated that he was running a
business, not a place for people to attend school. That he
would have taken such a position. forgetting that he had
already recently acceded to the schedule change, is highly
improbable and, within the entire context of this case, un-
believable. Moreover, the documentary evidence supports
the testimony of Franqui and Mitchell that they did not
work on schooldays after an initial period wherein they at-
tempted to comply with their work schedule and arrive at
the school after their class has started. I credit them that
any accomodation to them was in the form of an involun-
tary reduction of their workweek by the elimination of
Tuesday and Thursday work assignments.
As to the assertion of tardiness raised by Sylvia Kann at
the October 25 meeting, i.e., 17 occasions for one employee
and 15 occasions for the other, Lanning Kann made no
such reference in his testimony describing his October I I
"investigation." He testified in that regard to a tardiness of
several hours on the schooldays after the supposed pre-Oc-
tober I 11 accommodation. This would have occurred on or
about October 4. He then testified that Franqui and Mitch-
ell were so tardy on that date that they did not even report
at all. If they did not report at all they would not have been
merely a couple of hours late. His only other reference to
tardiness is that which supposedly occurred after the com-
mencement of the start of the training course on September
20 and which led up to the accomodation on the school-
days; i.e., on or about October 4. With respect to the Octo-
ber 25 meeting, he testified that he gave as the reasons for
the discharge the falsification of timecards and the depres-
sion in business. Unlike Sylvia Kann. Lanning Kann at that
meeting referred to no other tardiness. Kranitz testified that
the excessive tardiness issue was, indeed, also raised but
that he objected that tardiness was not a valid issue because
the Respondent had never previously notified the employ-
ees of such allegation. Therefore, he initially refused to re-
view the timecards which Respondent proffered to him at
the October 25 meeting. Kranitz testified that later he did in
fact review the timecards and concluded that the employees
were indeed excessively tardy. However, this assumes that
the employees had a fixed starting time. I credit the uncon-
tradicted testimony of the employees that their starting
times varied from day to day based upon word received by
them on the telephone from Sylvia Kann or Richardson as
to the precise time they were to report for work. I therefore
conclude that the variance in starting times reflected in the
timecards is meaningless with respect to whether or not
they were excessively tardy. In any event, the overall at-
tendance record of the two employees was not raised until
October 25, and was not reviewed by Lanning Kann in his
October I I investigation, and the employees were never
previously warned about tardiness. I finally credit their tes-
timony that they were not, in fact, excessively tardy. As to
the alleged tardiness that occurred on or about the date of
the pre-October II accomodation. it would have occurred
on or about October 4, and even if it did occur, it was
obviously condoned by October II.
With respect to the allegation that Franqui and Mitchell
had falsified timecards, Lanning Kann testified that during
his October II "investigation" he considered the "stealing
of time" to be so serious as to constitute grounds for "auto-
matic dismissal." Yet. Kann testified that he was aware as
early as the end of July that Richardson was permitting
Franqui and Mitchell to remain "on the clock" at times
when there was no work and at times when they were idling
around the garage. Kann testified that some employees
complained of favoritism toward Franqui and Mitchell in
this regard and that he then instructed Richardson to send
them home after he. Kann, discovered them idling. Kann
said nothing to Mitchell and Franqui then or at any later
them, and he next raised the matter at the October 25 meet-
ing.
Kann testified that he told Richardson on October I to
tell Franqui and Mitchell that they were laid off for lack of
work because he was not able to prove the allegation of
misconduct "in court." and furthermore, he did not wish to
cause them to be disqualified for unemployment compensa-
tion. He also testified that at the October 25 meeting he had
raised the allegation of timecard falsification. Franqui,
Mitchell. and Rudene Franqui testified that there was no
such reference to the timecard falsification issue at the Oc-
tober 25 meeting. Kranitz testified that some time before
the October 25 meeting, he telephoned Lanning Kann and
asked the reason for the termination of the two employees
and that Kann told him that they had engaged in "hanky
panky." i.e.. failure to clock out while idling at the garage.
but that Kann also said he could not prove it. Kranitz said
that he sent a representative of the Union to investigate and
the representative reported back that some "people" at the
garage informed him of the truth of the allegations. He did
not know the identity of the "people." despite the fact that
in earlier testimony on direct examination, he said it was
the steward who so informed him. Kranitz testified that he
never subsequently raised the issue with Franqui and
Mitchell because he also could not prove it. He testified as
to the October 25 meeting and although he referred to the
tardiness discussion, he made no reference to the timecard
falsification as an element of that discussion.
Thus, as of October 1 I, there is no evidence that Franqui
or Mitchell was ever warned or reprimanded in regard to
idling when clocked in. It appears from Kann's testimony
that Richardson was aware of it. There is no evidence that
Franqui and Mitchell were ever warned by Richardson in
this regard or that they had acted without his knowledge
and approval. Richardson was clearly their supervisor. I
conclude that as of October I I., Lanning Kann had uncov-
ered nothing new with respect to the timecard conduct, and
that even if the two employees did engage in conduct as
alleged it was condoned by Lanning Kann as of October I I,
until he was confronted with the employees' grievances.
There is also inserted in Lanning Kann's confusing, in-
consistent, and convoluted testimony regarding the bases
for the discharge the suggestion that another basis was that
these employees' request for a change in shift schedule to
accommodate a training course would cause them to be
188
FIEI.DSFON AMBULANCE & M)I(AL SYSTEMS
given undue preference oer other emploees and would
disrupt the schedule. This testimony is inexplicable in view
of his almost simultaneous testimony that he did in fact
accommodate the emploees in such request prior to Octo-
ber I I.Kann also admitted that when he discussed the mat-
ter on Octohber I I. Kranitz told him something of which he
testified he was already aware: i.e.. "I was required to send
or to allow men time to go to school as per our Union
agreement."' Thus. Respondent had contractually com-
mitted itself to the easibilit' of adjusting its schedules. Re-
spondent offered no evidence as to how an accommodation
in this instance would have been so disruptive that its onl
course of action was discharge. Finally. Lanning Kann
could have simply refused the request without recourse to
discharge. It is my conclusion that this final factor was
merely raised as a make-weight argument conjured up in
the midst of Kann's confusion on the witness stand, That
confusion was manifest in his demeanor as well in his testi-
mons and. thus. rendered him a most unreliable witness.
I conclude that the only cause for the discharge of Joseph
Franqui and Edward Mitchell was their union actiities:
i.e.. seeking and obtaining the aid of the Union in the pro-
cessing of their complaints concerning wages. terms. and
conditions of employment. All other causes advanced bh
Respondent are pretexts and do not rise to the dignit of
justifiable business reasons. Assuming that justifiable busi-
ness reasons did exist for the discharge prior to October I I.
Respondent almost by his own admission would not have
considered them had it not been foir the union activit.
Thus, had it not been for the union activities. Mitchell and
Franqui would not have been discharged.
Conclusions
I. The deduction of union dues
Respondent from on or about September 12 to on or
about October 5 deducted union dues from Franqui's pay
prior to his union membership and in the absence of any
authorization by him. By such conduct, Respondent vio-
lated Section 8(a)(1) and (2) of the Act in that such conduct
gave unlawful support and assistance to the Union. Pros-
pect Gardens of Norwalk, Inc., 177 NLRB 136. 140 (1969):
Hope Industries, Inc., 198 NLRB 853 (1972): Howard Cre-
ations Inc.. 212 NLRB 179 (1974): Jo-Jo Management
Corp. dhb/a Glorias Manor Home for Adults. 225 NLRB
1133 (1976).
As to the deduction of dues from the pay of Mitchell, the
evidence does not clearly establish that such deduction pre-
ceded his execution of a written authorization which, ac-
cording to his testimony. he made some time during the
week ending October 10.
2. Disparity of wages based on union membership
The General Counsel has adduced evidence that demon-
strates that Franqui and Mitchell were granted wage in-
creases at the time dues were deducted from the paychecks
' He qualified this by inierpreling the contract to give a preference to
ambulance personnel "over and above people who are working on invalid
coaches." Presumably he was referring to the ambulettes which were driven
by Franqui and Mitchell as invalid coaches. but he did not clarify this point.
of' both employees. However, with respect to Franqui. he
did not become a union member at that time. Nevertheless.
the General Counsel argues that it must be inferred that
wage increases were contingent upon union membership.
Lanning Kann's explanation for the delay in wage increases
is not convincing: i.e.. that an outside clerical service had in
early October improperly calculated and implemented the
collective-bargaining agreement which was to have been ef-
fective as of May. He testified that the error affected only
new employees and was not brought to his attention until
the October presentation of grievances. From his testimony
apparently all other employees therefore were receiving the
appropriate wage increases provided by the recent contract.
Why Franqui received an increase as of September 12. a
month in advance of the supposed discovery of the error.
was in no way explained. However. neither of the employ-
ees was told that his wage increase was delayed because he
was not a union member. Franqui was told that he would
receive raise when he assumed a driver's duties. Yet. he
was not given a raise despite his driving duties. Mitchell
was told when he was hired that he would receive a raise
after 30 days of employment. When Mitchell subsequently
complained to Richardson. he was referred to Sylvia Kann
who instructed him to write the word "drier" on his time-
card. He did so but still did not receive a raise despite his
driver duties. Indeed, the contract itself contains a union-
security clause requiring union membership on the 31st das
of employment of new drivers. However, there is no evi-
dence that this proviso was entforced by the Union or Re-
spondent with respect to Franqui and Mitchell.
Richardson's conduct is illuminating. On or about Sep-
tember 6. Richardson told Joseph Franqui and Rudene on
separate occasions, in answer to their inquiries, that new
employees were not entitled to union membership until
their 90th day of employment. In fact. union dues were
deducted for the two employees on or about their 90th day
of employment. Franqui did not in fact join the Union on
September 12, but he assumed that union membership was
conferred upon him on that date because union dues were
then and thereafter deducted. As noted above, he did not
apply for nor did he execute union membership or dues
deduction authorization until October 5. However. the Re-
spondent by deducting dues was in effect treating Franqui
as though he had joined the Union. There is no rational
basis upon which to conclude that wage increases due
Franqui and Mitchell pursuant to the contract and, indeed,
promised to them were delayed other than because they
were not considered to be union members. The reasons of-
fered to them by Sylvia Kann and the excuse tendered by
Lanning Kann at the trial are inconsistent and palpably
false. The natural consequence of Respondent's conduct
was to convey to the employees that they would not receive
contractual benefits granted to other employees unless the)
were members of the Union. Thus. Respondent by its con-
duct. if not by its intent, unlawfully encouraged union
membership and discriminated against Franqui and Mitch-
ell in the terms and conditions of their employment because
of their nonunion membership in violation of Section
8(a)(1) and (3) of the Act. Compare Go nor .N'ews Compatn.
Inc. ..N'.L.R.B.. 347 U.S. 17 (1954): Rockawal' .\'es.x Sup-
pl, Cotlamnv. Inc., 94 NLRB 1056 (1951).
189
I)-C(ISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to pas holiday rate
The evidence in the record indicates that the holiday rate
of pay was not paid to Franqui on Labor D)ay. However,
the contract sets forth the extra pay for holidays is to be
paid to all employees after the completion of 90 days of
employment. It is not qualified as to union membership.
There is no evidence that other employees who were union
members received such benefit prior to their 90th day of
employment. As Franqui had not completed his 90th day of
employment, he was not entitled to extra pay for work per-
formed on Labor Day. The General Counsel does not argue
in his brief that the failure to pay Franqui extra pay for
Labor Day constitutes a violation of the Act. I conclude
that it does not and I find no violation with respect to that
allegation of the complaint.
4. The discharges
Inasmuch as I have concluded that Respondent dis-
charged Franqui and Mitchell on October II because they
presented their grievances concerning wages and terms and
conditions of employment with the assistance of the U nion,
I find that Respondent violated Section 8(a)(l) and (3) of
the Act.
Upon the basis of the above findings of fact. and upon
the entire record in this case. I make the following:
CON( LUSIONS OF I.AW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2). (6). and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By its conduct set forth in section I. above, the Re-
spondent has engaged in and is continuing to engage in
violations of Section 8(a)( 1), (2). and (3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Tint RtMi)Y
Having found that Respondent violated Section 8(a)(1).
(2), and (3) of the Act. I will recommend that Respondent
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Respondent contended at the hearing that Edward
Mitchell was offered reinstatement at the October 25 meeet-
ing. According to the testimony of General Counsel's wit-
nesses. whom I credit, Lanning Kann merely indicated that
he would consider reinstatement. Kann's own testimony fell
short of demonstrating that a clear, unequivocal, and un-
conditional offer of reinstatement was made. Cf. Kenston
Trucking Companvy Inc., et al., 223 NLRB 502 (1976). Ac-
cordingly. the order should require Respondent to offer
Joseph Franqui and Edward Mitchell immediate reinstate-
ment to their former or substantially equivalent jobs with-
out prejudice to their seniority or other rights and privi-
leges, and to make them whole for any loss of earnings they
may have suffered as a result of the discrimination against
them and the unlawful deduction of union dues from the
pay of Franqui. Any backpay found to be due shall be
computed in accordance with the formula set forth in F. W.
Wioolworth Compan'v, 90 NLRB 289 (1950), and Flordia
Steel Corporation, 231 NLRB 651 (1977),1
As I have found that Respondent has unlawfully assisted
the Union by checking off dues without benefit of a signed
checkoff authorization from employee Franqui. I shall rec-
ommended that it be ordered to cease and desist from ren-
dering such assistance and support to the Union.
In view of the nature of the violations herein, it will be
further recommended that Respondent be required to cease
and desist from infringing in any other manner upon the
rights guaranteed employees by Section 7 of the Act.
On the basis of the foregoing findings of fact. conclusions
of law, and the entire record herein, and pursuant to Sec-
tion 10(c) of the Act. I hereby' issue the following recom-
mended:
ORDER4
The Respondent, ieldston Ambulance & Medical Sys-
tems. I.td.. New York, New York, its officers. agents, suc-
cessors. and assigns, shall:
1. ('ease and desist from:
(a) Rendering assistance to l.ocal 531. International
Brotherhood of Teamsters. ('hauffeurs, Warehousemen and
Helpers of America. by deducting union dues from the pay
of employees who have not executed checkoff authoriza-
tions.
(b) Discriminating against any of the employees by de-
nying them coverage under the collective-bargaining agree-
ment with the above-named Union and by otherwise refus-
ing to grant employees wage increases and/or other
employment benefits because such employees are not mem-
bers of the Union.
(c) Discouraging membership in or activity on behalf of
the above-named Union or any other labor organization, or
discouraging concerted activities engaged in for employees
mutual aid or protection, by discharging or otherwise dis-
criminating against employees in any manner with regard
to their rates of pay. wages, hours of employment, tenure of
employment. or any term or condition of employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, or to join labor organizations, to join or assist
the above-named labor organization or any other labor or-
ganization. to bargain collectively through representatives
of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Joseph Franqui and Edward Mitchell immedi-
ate and full reinstatement to their former jobs or, if those
See, generally. Isis Plumbing & Heating (C,.. 138 NLRB 716 (19621.
In the event no excepilns are filed as provided by Sec. 102.46 of the
Rules and Regulalions of the National abor Relations Board. the findings.
conclusions. and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations, be adopted hb the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waised for all purpioses.
190
FIELDSTON AMBULANCE & MEDICAL SYSTEMS
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings
they may have suffered by reason of the discrimination
against them and the unlawful deduction of dues from the
pay of Joseph Franqui in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of moneys due under this Order.
(c) Post at its Inwood Avenue, New York, New York,
facility copies of the attached notice marked "Appendix."'
I 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 Pursuant to a Judgment
Copies of said notice, on forms provided by the Regional
Director for Region 2, after being duly signed by its autho-
rized representative, shall be posted by Respondent imme-
diately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 2. in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS FURTHER ORDERED that so much of the complaint as
alleges unfair labor practices not found herein, be dis-
missed.
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
191