Future Ambulette, Inc

National Labor Relations Board - Board Decisions

Apr 28, 1989

293 N.L.R.B. 884 (N.L.R.B. 1989)

884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Future Ambulette , Inc and Local 1034 , Internation-
al Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , AFL-CIO
Cases 2-CA-22232, 2-CA-22232-2, and 2-
CA-22312-2
April 28, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 27, 1988, Administrative Law
Judge James F Morton issued the attached deci
sion The General Counsel filed exceptions and a
supporting brief and a brief in answer to the Re-
spondent's exceptions, the Respondent filed excep-
tions and a supporting brief, and the Charging
Party filed cross-exceptions and a supporting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions, to modify the remedy, and to adopt
the recommended Order as modified
AMENDED REMEDY
We do not agree with the judge's recommended
remedy regarding discriminatees Anthony Williams
and Jeffrey Howell The judge found that it would
be inappropriate to order the Respondent to rein-
state them to their former jobs as drivers because
neither has a valid driver's license The judge rec-
ommended that their reinstatement offers be kept
"open" and that they be paid backpay "so long as
[the Respondent] has one or more drivers on its
payroll with suspended or otherwise invalid li-
censes "
The record shows that Williams' license was re-
instated on June 1, 1987 He is thus entitled to an
unconditional offer of full reinstatement and back-
pay
Jeffrey Howell's driver's license had not been re-
instated as of the date of the unfair labor practice
hearing We note that the record supports the Gen
eral Counsel's argument that Howell's lack of a
valid license resulted from his lack of financial re-
sources to pay outstanding traffic fines, rather than
from any incapacity that would preclude his ob-
1 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
taining a license Howell shall be paid backpay
from the date of his discharge but he is entitled to
an offer of full reinstatement to his former position
only when he shows the Respondent that he has a
valid driver's license If Howell is unable to obtain
a valid license within a reasonable period of time
from the date of this Decision and Order, the Re-
spondent shall offer to reinstate him to a substan-
tially equivalent position If no such position exists,
the Respondent shall make Howell whole until
such time that he obtains substantially equivalent
employment elsewhere See Overseas Motors, 260
NLRB 810, 814-815 (1982), enfd 721 F 2d 570 (6th
Cir 1983), Overseas Motors, 277 NLRB 552, 556-
557 (1985)
Backpay for all discriminatees shall be computed
in accordance with F W Woolworth Co, 90
NLRB 289 (1950), with interest computed as set
forth in New Horizons for the Retarded, 283 NLRB
1173 (1987)
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, Future Ambulette, Inc, New York, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi
feed
I Substitute the following for paragraph 2(a)
`(a) Offer Anthony Williams, Tomas Gaton,
Raymond Rodriguez, and Jose Cintron immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or other rights and privileges, and make them
whole for any loss of pay and other benefits result
ing from their discharges, including moneys due
Anthony Williams and Raymond Rodriguez for
losses incurred by them for reduction in working
hours and vacation pay, respectively Backpay shall
be computed in the manner set forth in the amend-
ed remedy section of this Decision and Order "
2 Insert the following as paragraph 2(b) and re
letter the subsequent paragraph
"(b) Offer Jeffrey Howell full reinstatement to
his former job on the presentation to the Respond-
ent of a valid driver's license If Howell is unable
to obtain a valid license within a reasonable period
of time from the date of this Decision and Order,
the Respondent shall offer to reinstate him to a
substantially equivalent position Reinstatement
shall be without prejudice to his seniority and
other rights and privileges The Respondent shall
make Howell whole for any loss of pay and other
benefits resulting from his discharge, with backpay
293 NLRB No 108
FUTURE AMBULETTE
to be computed in the manner set forth in the
amended remedy section of this Decision and
Order "
3 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT coercively question our employ-
ees as to their support for Local 1034, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO
WE WILL NOT tell our employees that there will
be no Union at our facility
WE WILL NOT threaten to reduce wages, to make
conditions worse for employees, or to take unspeci-
fied reprisals against employees to undermine their
support for the Union
WE WILL NOT warn employees that they can be
discharged for supporting the Union
WE WILL NOT impliedly promise employees ben-
efits by soliciting grievances from them for the
purpose of discouraging support for the Union
WE WILL NOT make disparaging and misleading
remarks to employees about union officials in order
to induce them to abandon their support of the
Union
WE WILL NOT threaten that we will close down
our facility to induce employees to withdraw their
support of the Union
WE WILL NOT discharge employees in order to
discourage membership in the Union
WE WILL NOT reduce the working hours or va
cation pay of any of our employees in order to dis
courage membership in the Union
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights under Section 7 of the Act
885
WE WILL offer Anthony Williams, Tomas
Gaton, Raymond Rodriguez, and Jose Cintron im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges, and
WE WILL make them whole for any loss of pay
and other benefits resulting from their discharges,
with interest thereon, including moneys due Antho-
ny Williams and Raymond Rodriguez for losses in-
curred by them for reduction in working hours and
vacation pay, respectively
WE WILL offer Jeffrey Howell full reinstatement
to his former job upon the presentation to us of a
valid driver's license If Howell is unable to obtain
a valid license within a reasonable period of time
from the date of the Board's decision, WE WILL
offer to reinstate him to a substantially equivalent
position, without prejudice to his seniority and
other rights and privileges WE WILL make Howell
whole for any loss of pay and other benefits result
ing from his discharge, with interest thereon
WE WILL remove from our files all references to
the discriminatory discharge of these five employ-
ees and to the discriminatory reduction in working
hours and vacation pay of Anthony Williams and
Raymond Rodriguez and
WE WILL notify each of these five employees in
writing that this has been done and that evidence
of unlawful conduct will not be a basis for future
personnel action against them
FUTURE AMBULETTE, INC
Richard De Steno and Ruth Weinreb Esqs, for the Gen
eral Counsel
Stuart Kirshenbaum Esq (Pollack & Kirshenbaum PC),
of Valley Stream, New York, for the Respondent
Lewis Goldberg Esq, of New York City, New York for
the Charging Party
DECISION
STATEMENT OF THE CASE
JAMES F MORTON, Administrative Law Judge The
pleadings in these consolidated cases, as amended by
stipulations received at the hearing, raised issues whether
Future Ambulette, Inc (Respondent) unlawfully sought
to discourage its employees from becoming members of
or from supporting Local 1034, International Brother
hood of Teamsters Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO (the Union) by coer
cively questioning employees regarding their support for
the Union, by threatening them with discharge to dis
courage membership in the Union, and by other acts, in
cluding discharging six employees because they support
ed the Union By those alleged unlawful acts the Gener
a] Counsel contends that Respondent has committed
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unfair labor practices proscribed by Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act)
The hearing was held in New York City in February
and March 1988 On the entire record, including my ob
servation of the demeanor of the witnesses, and after due
consideration of the briefs filed by the General Counsel
and Respondent, I make the following
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION STATUS
Based on stipulations received at the hearing, I find
that Respondent s annual operations meet the Board s ju
nsdictional retail standard and that the Union is a labor
organization as defined in Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent transports infirm patients between their
homes and hospitals or health care facilities located in
New York City In the spring of 1987 it employed 20 to
25 drivers who were then unrepresented for purposes of
collective bargaining
In early April 1987, the Union began an organizing
drive among these drivers (All dates hereafter are for
1987 unless stated differently) On April 28, the Union
filed a petition in Case 2-RC-20306 for an election Pur
suant to an agreement between Respondent and the
Union, which was approved by the Regional Director
for Region 2 an election was held on June 5 The Union
received a majority of the valid votes cast and on
August 20, was certified as the exclusive collective bar
gaining representative of those drivers
The unfair labor practices at issue before me are al
leged to have occurred between about April 11 and June
12
B Alleged Unlawful Statements or Inquiries
1 The evidence
The testimony offered by the General Counsel as to al
leged unlawful statements and questioning by Respond
ent is essentially uncontroverted Respondent did not, in
its posthearing brief contest the accounts of the General
Counsels witnesses regarding such statements Those ac
counts reveal that the following events occurred
On April 9, driver Anthony Williams met with a union
representative, signed a union authorization card and
passed out cards to about six of his coworkers On April
11 Charles Dippolito Respondents general manager
who is also its secretary treasurer broadcast a message
via a two way radio which is used to dispatch vans In
that message he said that if Williams did not turn in cash
receipts he had collected the Union would not be able to
help him When Williams reported back to the office
later that day Dippolito told him that he, Dippolito, had
heard that Williams was passing out cards for the Union
He asked Williams what was going on He also told Wil
hams that there had been an earlier attempt by a union to
get in and that he, Dippolito, threw them out Dippo
lito further stated that there would be no union and that
if the Union did get in he would reduce the employees
wage rate from $6 to $4 per hour He also said that the
employees would have to pay the Union $800
In mid April, Dippolito told Williams that he was not
to miss a beat and that he would get something on him
to get rid of him Later in April, Dippolito told another
driver, Jeffrey Howell, that he was going to get Wil
Hams In that conversation, Dippolito also had asked
Howell if he supported the Union
Dippolito used the two way radio on several occasions
to tell the drivers that those who vote for the Union
would be sucking wind and that the Union would only
make things worse for them
On about May 1, Dippolito again asked Howell how
he and each of the other drivers felt about the Union
Dippolito named the drivers and, as Howell responded
as to each one, Dippolito made a note on a card that he
had taken from his back pocket Dippolito, with Howell
still present, took a trip sheet listing clients recently
driven by Anthony Williams and using the telephone,
made inquiries to clients asking them whether Williams
had driven recklessly whether he used seatbelts, and
whether he was courteous After completing the calls,
Dippolito slammed the phone down and said, 111 get
that fucking Williams Dippolito told Howell that, if he
can get complaints on Williams he can get rid of him
The incident ended when Dippolito asked Howell to
pass the word around that the Union was trying to buy
them off
On May 3, Dippolito telephoned Howell at his home
and asked whose side he was on and if he had Howell s
vote Then Dippolito stated that Howell did not need a
union He asked Howell if he thought that Respondent
would fire a guy like him who gets along with every
body
On May 7, Dippolito telephoned Ralph Cordero one
of the dispatchers and told him that he had gotten rid of
two guys (referring to Williams and Howell who had
been discharged on May 6) and that he did not need
two guys like that who try to separate our company
Dippolito then wanted Cordero to assure him that he
still had his vote Cordero assured him that he was still
on Dippolito s side
In mid April, Dippolito asked Jose Cintron a driver
then on disability leave of absence from work if he had
heard that the fellas are starting a union '
In mid May Dippolito, while driving another driver
Fred Cordero home, asked him if he was for the
Union and when Cordero responded that he was not,
Dippolito said that he wanted Cordero to vote for him
Dippolito told the employees that there would be a
company meeting to find out why they wanted a union
The meeting was held at a diner on May 12 There Dip
polito told the drivers that there was a possibility that
Respondent could get them a benefits package for less
than that offered by the Union and that there were alter
nate health plans that could be looked into He informed
them that any benefits the Union could get them would
come out of their incentive pay because Respondent did
not have the money to pay them higher wages, and that
the Union would have to negotiate based on the avail
FUTURE AMBULETTE 887
able funds Dippolito further told the drivers that , if they
did not vote for the Union , Respondent would work to
gether with them to get the benefits they wanted
Dippolito told the drivers that the Union s business
agent cannot be much of a representative as he had been
discharged for having stolen money while working for
another labor organization as a business agent On sever
al occasions while talking with drivers , Dippolito re
ferred to the Union s representative , Thomas Gioia, as
Goya bean
Raymond Rodriguez , a driver , was asked several times
by Dippolito if he was going to vote for the Union or
for him (Dippolito) In one of those discussions, Dippo
lito told Rodriguez that if the Union came in he would
turn the plant over to a friend who would make it harder
for Rodriguez Dippolito also told him that , if the Union
came in , he would deduct $20 from Rodriguez pay and
give this money to the Union Rodriguez responded that
he needed benefits to protect him if he was injured Dip
polito responded that Respondent could bring in speak
ers to talk about different benefit plans
On the day of the election , Respondents president,
Joseph Benevenuto stated in the presence of employees
that if the Union wins the election he would close down
the shop At the conclusion of the voting , the tally of
ballots disclosed that the Union had won Benevenuto
became furious and went about the plant screaming that
he was closing down the business Dippolito told the
drivers then that the shop was closed and that they were
not to bother coming in
2 Analysis
Dippolito s interrogation of Williams on April 11 was
unlawful as it was accompanied by coercive statements,
discussed further below, as Williams had not openly de
Glared his support for the Union and as the information
sought was specific , not general In Angelica Healthcare
Services Group , 284 NLRB 844 (1987 ), the Board held
that analogous conduct interfered with , restrained, and
coerced employees in the exercise of their rights under
Section 7 of the Act For substantially the same reasons,
Dippolito s questioning of Cintron in mid April, his ques
tioning Howell in late April and again on May 1 and 3
his questioning of Ralph Cordero on May 7 his question
ing Fred Cordero in mid May, and his interrogations of
Raymond Rodriguez-all tended to coerce them to vote
against the Union See Structural Finishing 284 NLRB
981 (1987)
Respondent, by Dippolito s having informed Williams
on April 11 that there would be no union at its facility,
conveyed to its employees its view that it was futile for
them to seek representation by a labor organization Re
spondent thereby unlawfully interfered with employees
rights under Section 7 of the Act See Rood Industries,
278 NLRB 160 (1986)
By the statements of Dippolito to Williams on April 11
that , if the Union got in, drivers wages would be cut $2
an hour and that the drivers would have to pay $80 to
the Union , by Dippolito 's informing the drivers that they
would be sucking wind if they vote for the Union and
that the Union would only make things worse for them,
by telling Raymond Rodriguez that if the employees
vote for the Union , he would turn the plant over to a
friend who would make things worse for them , and that
Rodriguez pay would be reduced by $20 which would
be given to the Union-Respondent , by those statements
threatened its employees with reprisals to discourage
them from supporting the Union and thereby coerced
them respecting the exercise of their rights under Section
7 of the Act See Bay State Ambulance Rental 280
NLRB 1079 at fn 3 (1986)
The comments by Dippolito to Williams that he was
not to miss a beat and that he would get something on
him to get rid of him Dippolito s remark to Howell that
he was going to get Williams in context with his ques
tioning Howell then regarding his support of the Union,
Dippolito s asking Howell on May 3 if he thought he
would be fired , in the context of being asked if he was
on Respondents side , and Dippolito s statement to Ralph
Cordero that he had just discharged two employees be
cause they were trying to separate our company, in
context with his asking Cordero to give him assurance
that he , Cordero , would vote against the Union-all
these instances constituted coercive warnings by Re
spondent that it would discharge employees if they sup
ported the Union See Ryder/PIE Nationwide, 278
NLRB 713, 720 (1986)
Respondent , by having notified its drivers that it
would hold a meeting with them to find out why they
wanted the Union , thereby solicited grievances from
them This conduct constitutes an implied promise to re
solve their problems and was undertaken in order to un
dermine the Union s organizing effort Respondent thus
interfered with employee rights under Section 7 of the
Act See Gerber Co, 270 NLRB 1235, 1240 (1984)
Respondent by the statements Dippolito made at a
meeting of employees on May 12 , sought to induce them
into withdrawing their support for the Union by indicat
ing to them that Respondent would provide them with a
better benefit package than the Union could obtain for
them , interfered with and restrained them respecting
their Section 7 rights See Wilshire Foam Products 282
NLRB 1137 at 1158 -1160 (1987)
The General Counsel contends that Dippolito s derog
atory comments regarding the Union s business agent s
honesty and competence unlawfully disparaged the
Union s organizing effort and thereby interfered with the
employees Section 7 rights The Board cases are not
clear in this area In Newsday Inc, 274 NLRB 86, 95
(1985 ), the Board adopted the judges finding that Sec
tion 8 (c) protected a remark that the president of the
labor organization involved therein was corrupt as
there was no evidence to the contrary In Southland
Knitwear 260 NLRB 642 , 655 (1982), the Board adopted
the judge's finding that the employer there violated the
Act by stating that the president of the union involved in
that case belonged to the mafia In Kawasaki Motors
Corp 257 NLRB 502, 510-511 (1981), the Board of
firmed a finding that the employer there violated the Act
by telling employees that the labor organization in that
case was responsible for making bomb threats as that em
ployer had not shown a linkage of the threat to the
Union None of these cases set out the rationale upon
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which disparagement of a union official can unlawfully
impact on employees Section 7 rights In the case before
me, it seems clear that Respondents employees would
reasonably be expected to accept Dippolito s statements
as accurate in view of his position as general manager
and as one who has access to better sources than they
Dippolito showed them no document that Gioia was
ever convicted of a crime In effect I find he made a
misleading statement that unwarrantedly impaired their
free choice as to the selection of a bargaining representa
tive It is reasonable also to infer that these dnvers con
strued Dippolito s defamatory remarks about Gioia as a
clear statement that they should have nothing to do with
the Union which employed Gioia and that he Dippolito,
certainly would not deal with it In the context of the
other coercive remarks, particularly those which were
found above to have conveyed the futility of the employ
ees effort to have the Union as their collective bargain
ing representative, I find that Respondent interfered with
their Section 7 rights by its disparagement of Gioia
when it had not offered its employees any documentation
to show that Gioia was guilty of the wrongdoing it
charged him with
The General Counsel contends that when Dippolito
told Howell on May 3 that he would get Williams and
questioned Howell regarding his support for the Union
(as discussed above), Respondent not only unlawfully in
terrogated and warned Howell, but also unlawfully cre
ated the impression that it engaged in surveillance on
Williams activities for the Union I find no merit in that
contention Howell could gust as easily infer that another
employee had volunteered to Dippolito that Williams
was assisting the Union as he could infer that Dippolito
had arranged to have Williams observed sureptitiously
Generalized statements that are not directed at a specific
incident of union activity are insufficient to create the
impression of surveillance See Palby Lingerie and Argers
Lingerie Corp 252 NLRB 176 (1980) See also Premiere
Maintenance 282 NLRB 10 at 13 (1986)
Lastly I find that the threats to close by Benevenuto
and Dippolito on the day of the election coerced Re
spondent s employees as to their rights under Section 7
See Cartridge Actuated Device 282 NLRB 426 (1986)
C Alleged Discriminatory Changes in Williams
Working Hours and his Alleged Discriminatory
Discharge
1 The testimony
The Union's organizing campaign began when Wil
liams met with a union representative on April 9 and
passed out union authorization cards Williams was sub
jected on April 11 to an interrogation by Dippolito re
specting his passing out those cards and to related coer
cive conduct Dippolito unlawfully warned Williams in
mid April not to miss a beat" and, on several other oc
casions expressed his intention in no uncertain language
to find a reason to discharge Williams because of his ac
tivities on behalf of the Union Dippolito even sought to
solicit complaints from Respondents clients regarding
the type of service Williams had rendered to them as a
basis upon which Williams could be discharged Dippo
lito in talking with employees, referred to Williams as
the delegate
Shortly after Williams initiated the Union s campaign,
his working hours were changed from 8a in -5 30p in to
10a in -7 p in and changed again to 9a in -7p in No ex
planation was given him He had been employed by Re
spondent for about 6 months and had never had his
schedule of working hours so revised At the hearing,
Respondent proferred no explanation for revising Wil
liams schedule
The extent of Williams activities for the Union, Re
spondent s patent hostility towards him because of those
activities the timing of the changes in his working
schedule relative to the start of the Unions organizing
effort and Respondents failure to offer Williams a
reason for changing his working hours-all warrant a
clear inference that Respondent was retaliating against
Williams to discourage support for the Union I find that
the General Counsel has made out a prima facie showing
of unlawful discrimination in effecting those changes It
was then incumbent upon Respondent to demonstrate
that it would have made those same changes regardless
of Williams activities for the Union See St Paul s
Church Home 275 NLRB 1242, 1253 (1985) As noted,
Respondent tendered no evidence there I thus conclude
that the General Counsel has sustained the burden of es
tablishing that Williams working hours were changed in
April in order to discourage him from continuing his of
forts on behalf of the Union towards organizing the driv
ers
Williams and another driver, Jeffrey Howell (whose
alleged unlawful discharge is discussed in the next sec
tion) were the ones whom the Union used to communi
cate with the drivers The Union scheduled a meeting
for April 22 at a nearby diner which was attended by
Williams and Howell along with Fred Cordero Ralph
Cordero Tomas Gaton, Jack Randolph and Raymond
Rodriguez and his wife On April 28, the Union filed its
petition in Case 2-RC-20306
On May 5, the Union held a meeting at Pelham Bay
Diner that was attended by about 16 drivers, virtually
the full complement Dippolito s testimony reveals that
he knew that a meeting was held at the Pelham Bay
Diner A driver Joe Rodriquez told him later that same
night the names of the drivers present at a union meet
ing including himself and several others who had not
been present at the April 22 meeting I infer from the
foregoing that Dippolito on the night of May 5 was
made cognizant of the union meeting held earlier that
night
On May 6 Williams reported for work He was met
by Dippolito who told him he was fired Williams testi
feed that he asked for a reason and that Dippolito did not
respond Instead Williams testified Dippolito told him
to pick up his check and to turn in his uniforms On a
later date, according to Williams, Dippolito stated that
Williams was discharged because a patient complained
but when Williams asked for details of the complaint,
Dippolito did not answer
FUTURE AMBULETTE 889
2 Analysis
In view of Williams activities for the Union Respond
ent s union animus Dippolito s repeated statements that
he would find an excuse to discharge Williams his of
forts there which included his telephoning clients to
learn of any complaints they might have against Wil
hams, and Dippolito s failure to afford Williams the op
portunity to answer a complaint purportedly lodged
against him I find that the General Counsel has made
out a prima facie showing that Respondent discharged
Williams in retaliation for his helping the Union in its or
ganizational effort The burden is then on Respondent to
show that it would have discharged Williams, regardless
of his activities on behalf of the Union Wright Line, 251
NLRB 1083 (1980) See also NLRB v Transportation
Management Corp , 462 U S 393 (1983)
3 Respondents defense
At the outset of Respondents cross examination of
Williams , he was asked about whether his license was
suspended , his accident record as a driver before he
began working for Respondent , and regarding his appli
cation for a job he held before coming to work for Re
spondent The General Counsel objected to these ques
tions as irrelevant Respondent argued then that Williams
had been discharged by his previous employer for rea
sons that parallel the reasons for which Respondent let
him go Respondents counsel was asked what those rea
sons were He responded that he wanted to explore
the matter and he observed that he was not entitled to
pretrial discovery I sustained the objection Respondent
then went on to examine Williams regarding his accident
record while in its employ and , in that connection, asked
about an accident that occurred in April 1987 involving
a Spanish speaking gentleman When the General
Counsel objected as to relevancy , Respondent 's counsel
replied that this is why [Respondent] fired [Williams]
and on that representation , he was allowed to proceed in
that area Respondents counsel later stated that Williams
was discharged for having been engaged in three acct
dents that he did not timely report to Respondent and
for the reckless manner in which he operated a van
while transporting a client
Williams testified that he had only two accidents while
in Respondents employ-one in March and a second in
April He testified that he reported the first one immedi
ately to Respondents dispatcher by way of the two way
radio and that , as he had no radio in his van at the time
of the second accident , he could not report it immediate
ly Williams recited that he left the second accident with
out getting the other driver 's license and that he received
a 1 day suspension for not having secured that informa
tion
Dippolito testified as follows respecting the reasons for
terminating Williams' employment Williams was dis
charged because he failed to report three accidents in a
timely manner and because of a complaint letter written
by a patient Dippolito had learned of two of the acci
dents when he received letters about them from his in
surance broker (One such letter was placed in evidence
by Respondent It was a form letter dated September 21
it referred to an accident on January 9 and asked only as
to how Williams was connected with Respondent) Re
garding a second accident , Williams did not tell Dippo
lito about it until several days later and Williams had
failed to obtain the name and address of the driver of the
other vehicle Dippolito suspended Williams for 1 day
because he had failed to get the other driver s license
data The third accident must have occurred on a Friday
night Dippolito drew that conclusion from the fact that
on the following morning , he observed that a van was
damaged and from the fact that Williams had been as
signed to drive that van on the previous day Although
Williams denied having caused the damage , Dippolito
did not believe him Regarding the complaint letter, Dip
polito received a letter dated May 3 from a patient, Bob
Gaioni In that letter , Gaioni wrote that Williams when
he transported him on April 29 and 30, drove danger
ously fast despite being asked to drive at a moderate
rate Gaioni wrote also that as he is a quadriplegic, any
sudden stop could injure his neck The letter concluded
with a request to Respondent that it should not send
Williams to pick him up in the future Dippolito dis
charged Williams the very next time he saw Williams
telling him this was the last straw and that he could not
work for [Respondent] anymore that he couldn t tol
erate any more of this reckless driving damaging my
equipment and abusing my patients Dippolito did not
solicit Gaioni 's letter Gaioni had asked him in a tele
phone conversation , not to send Williams to pick him up
Dippolito informed Gaioni in that conversation that he
could not do anything about the request until Gaioni put
it in writing Gaioni then documented his request in writ
ing
Dippohto concluded his direct examination regarding
Williams discharge by stating that Williams had been
fired because of his driving record and series of com
plaints culminating with the complaint that was docu
mented by Mr Bob Gaioni In a prehearing affidavit
Dippolito stated that he had informed Respondent s
president Benevenuto that Williams was fired as a
result of a complaint letter "
4 Further analysis
As is apparent from the above the accounts of Wil
Hams and Dippolito differ as to what was said at the time
of Williams discharge Williams testified that he had
then asked for a reason and that Dippolrto did not give
him one that day Dippolito s testimony is that he told
Williams he could not tolerate Williams' reckless driving,
his damaging equipment, and his abusing patients I
credit Williams version Dippolito's testimony seems to
conflict with his earlier stated reason for discharging
Williams, i e, that Williams had failed to make timely re
ports of the accidents Moreover , Dippolito did not deny
Williams' testimony that , at a later date when Williams
was told he was discharged because a patient complained
about him he asked Dippolrto for details but got no re
sponse Further I am not disposed to credit Dippolito s
account in view of the unpersuasive nature of other as
pects of his account as discussed next
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the course of cross examining Dippolito the Gener
al Counsel placed in evidence reports obtained from Re
spondent s files concerning accidents in which other
drivers of Respondent were involved One of those driv
ers, Alvin Wade, came to a sudden stop on one occasion
while transporting a patient and this resulted in the pa
tient sliding out of her wheelchair She sued Respondent
for 1 million Wade was not discharged then although, as
the General Counsel notes, Wade apparently had not se
cured her properly with a seatbelt Wade, while working
for Respondent, had four other serious accidents In one,
a patient had slipped out of a wheelchair when Wade
stopped his van suddenly, and on another occasion, a pa
tient fell from his seat when Wade came to a sudden stop
and this resulted in the patient suffering a dislocated arm
When Dippolito was asked why he did not discharge
Wade for that accident in which a patient sued Re
spondent for $1 million when she slipped from under her
seatbelt that she contended had been improperly secured
by Wade, Dippolito answered
After the accident we did not immediately re
ceive the law suit but I didn t fire Mr Wade be
cause of the law suit which was a direct result of
the accident I fired him because of-the second
time in a matter of two to three weeks a patient fell
out of a chair and I couldn t accept as an excuse
that the patient slipped under the seat belt I had to
make a judgment that Mr Wade was not taking
proper precautions with the people in his charge
while they were in my vehicle
Dippolito appears to have offered varying reasons for
finally discharging Wade At one point he testified he
discharged Wade immediately after his last serious acct
dent Later, he testified that he fired Wade because he,
Wade started to lose his concentration and started to
make some avoidable accidents too many for Dippolito s
liking
There are two other drivers, still in Respondent s
employ who have had accidents much more serious than
Williams' For that matter Dippolito conceded on cross
examination that the damage done to Respondents vehi
Iles, chargeable to Williams was minor
Upon reviewing the evidence submitted by Respond
ent in rebuttal of the General Counsels prima facie
showing, I am not at all persuaded that Respondent
would have discharged Williams, absent his having en
gaged in activities in support of the Union Rather, it ap
pears that Respondent at varying points was searching
about to locate a nondiscriminatory reason it could use
as a defense At first, Respondent seemed to be exploring
Williams driving license record for deficiencies, then its
focus shifted to an assertion that he failed to make timely
accident reports Respondent then presented evidence re
garding his accident record but that faded when com
pared with the records of other employees who were
treated with lenience despite their having been involved
in much more serious incidents Lastly it fell back on
Gaioni's letter which Dippolito solicited, although he
denied having done so I note that Dippolito never gave
Williams an opportunity to respond to Gaiom s com
plaint although Dippolito was forgiving in his dealings
with other employees I note too that Gaioni s complaint
did not contemplate Williams being fired and that Dip
polito s insistence that he needed the complaint in writ
mg in order to take care of it is consistent more with his
efforts to find a reason to get Williams (as Howell has
testified) than with an intent to accommodate Gaiom
Having found that Respondent has not demonstrated
that Williams would have been discharged absent his
union activities, I find that the General Counsels prima
facie showing of discrimination has not been rebutted
and I therefore conclude that Williams was discharged
by Respondent because of his activities in support of the
Union
D Alleged Unlawful Discharge of Jeffrey Howell
1 The testimony
Howell began working for Respondent in February
1986 as a driver He and Williams were the first of Re
spondent s employees to sign union authorization cards
The Union s business agent named Williams and Howell
as the employees of Respondent who kept him informed
during the organizational campaign As noted above,
Howell was questioned more than once by Dippolito re
specting his feelings about the Union In early May, Dip
polito asked him if he had signed a union card and re
ceived an answer that Dippolito characterized as ambig
uous Howell attended a union meeting on May 5 Dip
polito was told beforehand by one of the drivers that
that meeting would be held and was told afterwards
what transpired at it On the following day , Howell was
discharged , as was Williams as noted above
Howell was asked by Dippolito on May 6 to produce
his driver s license Howell replied that it was suspended
and asked Dippolito for a chance to go down to the
motor vehicle office that day to get his license reinstated
In order to do this Howell had to pay fines that had ac
cumulated for various traffic offenses Dippolito did not
grant Howell s request Instead he told Howell that he
was discharged as of right now As Howell was leav
mg, he told Dippolito that if he was being fired because
he had no license Dippolito should have done that
months ago He was referring to an accident he had on
February 9 while driving for Respondent He was being
held then on $ 100 bail for driving without a license He
had telephoned Dippolito on February 9 to tell him of
this and was freed when another of Respondents drivers
appeared with $100 from Dippolito which was posted as
bail On the same day Howell was discharged Dippolito
asked another driver , Stephen Gunto, for his license He
was unable to produce it As of the hearing, Gunto still
does not have a valid license and is nonetheless still in
Respondents employ as a driver For that matter the
driving abstracts of many of Respondents current dnv
ers disclose that their licenses have been suspended or
have expired
Howell returned to Respondents office on May 7 to
pick up his paycheck and overheard Dippolito 's conver
sation with the dispatcher , Ralph Cordero Dippolito had
telephoned Cordero and his call came over a speaker
FUTURE AMBULETTE 891
phone Dippolito, as discussed earlier, asked Cordero if
he still had his vote and then told Cordero that Williams
and Howell were trying to seperate the Company and
that he got nd of those two morons
2 Analysis
In view of the evidence of Howells union activities,
Respondents knowledge of the May 5 union meeting
which Howell attended, the union animus exhibited by
Respondent as discussed earlier , the summary discharge
of Howell and the disparate treatment accorded him
with respect to the discharge, the pretextual nature of
the reason given by Respondent as it was aware before
the Unions campaign began that Howell 's license was
not current , and virtual admission by Dippolito on May
7 that Howell was discharged with Williams because
they favored the Union, I conclude that the General
Counsel has met her burden under Wright Line supra, of
establishing a prima facie case that Howell was dis
charged because of his union activities The burden de
volves on Respondent to demonstrate that Howell would
have been discharged absent his union activities Dippoli
to's testimony as to that aspect is as follows
It came to his attention as a result of an audit by the
State of New York, calling for production of all driving
licenses , that he learned that Howell 's license had ex
pired in January As a consequence Howell was told he
could not work for Respondent Respondent placed in
evidence a letter, written in longhand on the letterhead
of the State of New York and dated May 6 Dippolito
received that letter in the mail That letter states that the
signer must see all licenses for the review period, No
vember and December 1986
I find that the evidence submitted by Respondent is in
adequate to sustain a finding that it would have dis
charged Howell regardless of his union activities If any
thing Dippolito s testimony may well buttress the Gen
eral Counsel s case as it seems that Dippolito is saying
that he discharged Howell on May 6 based on a letter
dated that same date and received through the mail and
which asked for the status , inter alia of Howell 's license
as of late 1986 when according to Dippolito, Howell s li
cense apparenlty was valid as it expired in January 1987
Based on the prima facie showing of unlawful discrim
ination which has not been rebutted I conclude that
Howell had been discharged on May 6 because of his ac
tivities on behalf of the Union
E Alleged Unlawful Suspensions and Discharge of
Tomas Gaton
I The testimony
Gaton began working as a driver for Respondent on
April 13 He signed an authorization card for the Union
on April 22 and attended a union meeting held later that
day As noted above, virtually all of Respondent's dnv
ers were present at another union meeting held on May
5 Dippolito acknowledged that several drivers had vol
untarily kept him informed of the Union s organizational
efforts
On May 9 Gaton's van did not start after he brought
a client home He called for help and another driver was
dispatched to assist him He got the van started and
brought it back to Respondents facility He was told
then to take the rest of the day off
Gaton worked on May 11 and 12 Upon returning to
Respondents premises on the evening of May 12, the
dispatcher informed him that Dippolito had left word
that he, Gaton, was not to come to work the next day
Nonetheless, Gaton appeared the next day Dippolito
then asked him why he was there Gaton asked if he was
fired Dippolito responded that the dispatcher could fire
him Gaton stated that the dispatcher did not fire him
and he insisted that Dippolito tell him why he could not
work Dippolito then said that Gaton drove too fast and
that he did not put seatbelts on the patients Gaton re
sponded that those charges were not true Dippolito told
Gaton to leave and that, if he did not Dippolito would
call the police Gaton left He testified that he had never
been told previously that he drove too fast or failed to
seatbelts patients
Dippolito testified that Gaton was always very late in
picking up patients, that he was reluctant to touch
people, drove too fast, made frequent stops at phone
booths apparently to make personal calls, did not follow
safety procedures, and failed to improve despite Dippoli
to s telling him repeatedly that he had to do better Dip
polito testified that the factors that precipitated Gaton s
discharge were the complaints he received from another
driver Onyx Lugo, an evaluation furnished by em
ployee Jeremy Casucci, and Dtppoltto s own observa
tions
Lugo, who was the first employee to volunteer to
Dtppoltto that the Union had begun an organization
effort, testified as follows for Respondent He worked
with Gaton on two occasions On one of those, Gaton
was too weak or too tired to do his part in carrying a
patient up a staircase and did not follow instructions
Casucci testified as follows for Respondent He
worked for Respondent for about a month He had been
hired by Dippolito to observe the performances of Re
spondent s drivers and was trained by Dippolito and a
few drivers regarding the work involved Casucci rode
with four drivers (It is not clear whether those four
were different drivers than those whom Casucci testified
had helped train him) Gaton was a reckless driver had
patients screaming at him and did everything wrong
Casucci reported to Dtppolito twice about Gaton s per
formance Dtppoltto told him that he would get on
[Gaton's] case let him know about it Casucci left Re
spondent s employ for a better job
Dippolito testified that he has known Casucci for
about 3 years and that Casucci worked for another com
pany of which Dippolito was a part owner
2 Analysis
The General Counsel has alleged that Gaton had been
unlawfully suspended on or about May 9 and unlawfully
discharged on or about May 12 For the reasons set out
below I conclude that the evidence is insufficient to es
tabltsh that he had been discriminatonly suspended Re
garding his alleged unlawful discharge , however, I con
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
elude that Respondent discharged him to discourage
membership in the Union
Respecting the alleged unlawful suspension , the evi
dence proffered shows at best that he worked only part
of a day because his van was not operating properly
The reason for his discharge , however , is another matter
In his brief history with Respondent , Gaton actively
supported the Union , having signed a union card and at
tended union meetings From the small size of Respond
ent s employee complement, from the union animus it ex
hibited as discussed earlier, and from the evidence that
Dippolito received reports from employees as to the
Union s organizational efforts including developments at
union meetings , I find that Respondent knew that Gaton
supported the Union See BMD Sportswear Corp, 283
NLRB 142 (1987) The uncontroverted evidence makes
clear, too, that Dippolito would not hesitate to cull from
Respondents ranks those who supported the Union He
had begun doing so by having discharged Williams and
Howell the week before Gaton s discharge Gaton had
never received any warnings from Respondent about
reckless driving" or about patients screaming at him I
find Gaton 's testimony that he was never warned to be
more convincing than Dtppoltto s testimony that he had
told Gaton repeatedly to do better
The evidence Respondent submitted to meet its burden
of demonstrating that Gaton , absent his union activities,
would have been discharged is not persuasive I find it
most difficult to accept Casucci's account that he, with
out having any experience, was trained to evaluate driv
ers and then evaluated them-all in the course of a
month 's employment It seems most unlikely too that pa
tients screamed at Gaton , that Casucci reported this to
Dippolito and that Dippolito indicated that he would
get on Gaton s case , as Casucci testified Lastly, I am
most suspicious of Casucci s testimony that he left Re
spondent s employ for a better job It appears he began
his employment with Respondent in time to be listed as
an eligible voter on the Excelsior list Respondent submit
ted in Case 2-RC-20306 Incidentally I note that the list
was submitted on May 14 and that it did not of course,
contain Gaton 's name as he had just been discharged
In view of the prima facie showing of discriminatory
motivation and as Respondent has proferred insufficient
evidence to demonstrate that it would have discharged
Gaton notwithstanding his union activities I find that the
General Counsel has established that Gaton was dis
charged by Respondent in order to discourage its dnvers
from supporting the Union
F Alleged Unlawful Discharge of Raymond
Rodriguez and Alleged Unlawful Reduction in his
Vacation Pay
1 The testimony
Raymond Rodriguez worked for Respondent as a
driver from 1984 until his discharge on June 2 He signed
an authorization card for the Union on April 9 and at
tended the first union meeting on April 22 accompanied
by his wife As noted above virtually all the drivers at
tended another union meeting , held on May 5, and Dip
polito was made aware of this, also as noted above Ro
driguez was questioned several times by Dippolito re
garding his sympathy for the Union and, on one occa
sion , he told Dippolito that the drivers were frustrated
and needed the Union Rodriguez also told Respondent's
president , Joseph Benevenuto , that he had waited too
long when Benevenuto , while discussing benefits in the
context of the Union s campaign , promised that he would
bring in an insurance person to talk with the dnvers
On May 30 , a taxicab , traveling at an excessive speed
according to Rodriguez , struck his van in the rear The
van turned over two or three times Rodriguez was
taken to a hospital and was released later that day Dip
polito told him to stay home for several days Rodriguez
called Dtppoltto on June 2 and said he wanted to return
to work Dippolito told him again to stay home for a
couple of days and that , if he felt up to it , to go to Re
spondent s insurance broker to fill out a report On the
following day , Rodriguez visited the broker , gave him a
report and then told him that Dtppoltto would not let
him go back to work The broker placed a call, after
which he told Rodriguez that Dippolito wanted to find
out if he , Rodriguez , was at fault or was intoxicated at
the time the accident occurred
On June 5 , the election in Case 2-RC-20306 was held
Rodriguez was driven to Respondent 's premises by the
Union 's business agent along with Jeffrey Howell (who
had been discharged on May 6 as discussed above) and
with Jose Cintron Respondents president , Joseph Bene
venuto , came over to them as they were waiting in the
car, then parked across the street from Respondent s
premises He asked what they were doing there Rodri
guez told him that he and Cintron were there to pick up
their paychecks He told them that Dippolito had the
checks Rodriguez and Cintron went over to Dippolito's
office and while there , Benevenuto too came in and said
the cab driver wanted to sue Respondent Rodriguez
then explained in detail to Dippolito and to Benevenuto
how the accident occurred Dippolito told him that he
could not work there for now as they still had to
wait for some paperwork to come in " Benevenuto
told him to get his belongings Rodnguez went to his
van to remove them Benevenuto followed him Rodri
guez asked him if he Benevenuto was doing this to him
because he was upset with the Union Benevenuto told
him that if the Union wins the election you guys will
go and , it will be up to the Union [to ] get you a job
As discussed earlier the Union won the election and
Benevenuto in a virtual tantrum , said that he was clos
ing down
Rodriguez returned a week later to pick up his vaca
tion check , equal to a week s pay , $300 Instead, his
check was for $198 Rodriguez protested to Benevenuto
who told him that Dippolito who was not present then
takes care of those matters
Dippolito testified regarding Respondents reasons for
discharging Rodriguez On his direct examination he tes
tified as follows Rodriguez was fired because he had a
series of accidents with patients, including one when he
had fallen on top of a patient and also because Dippoli
to's van was parked one night outside a known crack
house Rodriguez was discharged precisely because his
FUTURE AMBULETTE
final accident resulted in a new van being turned over
Dippolito also stated that immediately after the last acci
dent he observed Rodriguez' eyes and believed he was
using drug., On cross examination, Dippolito testified
that Rodriguez was discharged because of his handling
of patients and of Mr John Sheehan in particular and
because he had three accidents in an 11 month period
Sheehan did not make a written complaint to Respond
ent Dippolito testified also that suspected drug use by
Rodriguez was not part of the reason for his discharge
2 Analysis
The evidence is clear that Rodriguez actively support
ed the Union and that Respondent knew that he did The
ambivalent way it conveyed to him that he was dis
charged indicates that it did not have a valid basis to do
so The actual discharge notice appears to have been
Benevenuto s direction that Rodriguez take his belong
ings and leave That was said in the context of a define
tive statement, made moments later, that the Union will
have to find Rodriguez his next job In light of the fore
going and the record as a whole, the General Counsel
has made out a prima facie case that Rodriguez was dis
charged because of his support for the Union
Respondent has not met its burden of coming forward
with sufficient evidence to show that it would have dis
charged Rodriguez absent his support for the Union The
reasons it proferred were in part contradictory and vacil
lating Further, it did not begin to show why it waited
until just after the Union won the election to discharge
Rodriguez on grounds that may have taken place in the
period from a week to 11 months previously
I therefore conclude that Respondent discharged Ro
driguez on June 6 because he supported the Union Re
garding the allegation that his vacation pay was unlaw
fully reduced, I find that the General Counsel has estab
lished prima facie that Rodriguez received an amount
less than the sum due him and that Respondent paid him
the lesser figure as yet another step in its effort to dis
courage support among its employees for the Union As
Respondent offered no rebuttal evidence thereon, I con
clude that it reduced Rodriguez vacation pay because he
supported the Union The exact amount of the reduction
will have to await the compliance stage
G Alleged Discriminatory Discharge of Jose Cintron
I The testimony
Cintron worked as a regular driver of Respondent
from November 1986 to April 3, 1987 when he broke
his leg and was placed on disability leave He was told
by Dippolito that he still had a job
As noted above, he was driven to Respondents prem
ises on June 6 by the Union s business agent and was told
by Benevenuto that he and the union representatives
were not to wait on Respondent s premises On June 11
Dippolito sent him a letter reading
I regret to inform you that due to your pro
longed disability I can no longer hold your position
open as driver
893
Upon removal of your cast and rehabilitation, if
you find you are physically able to function as a
driver, we will consider your application once
again
We are requesting disability forms and are ex
pecting them shortly
At the hearing, Dippolito asserted that Cintron is cur
rently on disability leave and that he was not fired
2 Analysis
In determining whether an employee has been dis
charged, events must be viewed from the employee s
perspective, the test is whether the actions of an employ
er would reasonably lead an employee to believe that he
has been discharged Cf Trident Recycling Corp, 282
NLRB 1255 (1987) Notwithstanding Dippolito s asser
tions at the hearing, Respondent's letter to Cintron that it
would consider his application for employment when he
is able to drive left him with the distinct impression that
he had been discharged Thus, I find that he was in fact
discharged on June 11 and that the only plausible expla
nation as to why he was sent the letter then was that he
appeared at the election on June 6 in the company of the
union representatives I therefore find that prima facie,
he was discharged on June 11 because of his activities in
support of the Union and as Respondent offered no re
buttal evidence, I conclude that Respondent discharged
him to discourage employees from supporting the Union
H Alleged Discriminatory Discharge of Fred Cordero
1 The testimony
Cordero worked as a driver for Respondent from No
vember 16, 1987 until his discharge on June 12 He
signed a union authorization card on April 8 and attend
ed the union meetings on April 22 and May 5 On
Friday, June 6, the date of the election Respondent s
president informed employees that the shop was closed
and that they were not to bother to return He thus did
not report to work on Monday, June 8, but, when he
learned from his brother that the shop was open again,
he reported for work on June 9 On June 11 Dippolito
assigned Cordero to drive a van that did not have a
right hand sidemirror Cordero testified he refused to
drive that van and that Dippolito told him to go home
On the following day, he returned for an assignment
Dippolito told him he no longer worked there
Dippolito s account is that when Cordero refused to
drive the van because it lacked a right side view mirror,
Cordero also said he was `booking, an expression un
derstood to mean that Cordro was quitting employment
2 Analysis
The General Counsel contends that Respondent seized
upon Cordero's refusal to drive what he considered to be
an unsafe van as a pretext to discharge him because of
his support for the Union and that Cordero did not quit
his employment
I find that when Cordero was told to leave on June 11
after refusing the assignment, his employment status with
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent was then terminated and it is immaterial
whether he quit or was discharged then There is no
contention that he quit because he was constructively
discharged The timing of the incident on June 11 sup
ports only that the termination of his employment had to
be related to his refusal then to take the job assigned
Were it necessary to decide if he used the term `book
ing" on June 11, I would find Dippolito s testimony
there is more consistent with the circumstances then
those in Cordero's denial that he used that term
I therefore conclude that the General Counsel has not
made out a prima facie showing that Cordero was dis
charged on June 12 because of his activities in support of
the Union
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 Union is a labor organization as defined in Sec
tion 2(5) of the Act
3 Respondent, in violation of Section 8(a)(1) of the
Act has interfered with , restrained , and coerced its em
ployees in the exercises of their rights under Section 7 of
the Act by having
(a) Coercively questioned employees regarding their
support for Local 1034, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America , AFL-CIO (the Union)
(b) Told employees that there will be no union at its
facility
(c) Threatened to reduce wages to make conditions
worse for employees and to take unspecified reprisals
against employees in order to undermine their support
for the Union
(d) Warned employees that they can be discharged for
supporting the Union
(e) Impliedly promised employees benefits by soliciting
grievances from them for the purpose of discouraging
support for the Union
(f) Made disparaging and misleading remarks to em
ployees about union officials in order to induce them to
abandon their support of the Union
(g) Threatened that it would close down its facility to
induce employees to withdraw their support of the
Union
(h) Engaged in the conduct described below in para
graph 4
4 Respondent engaged in unfair labor practices in vio
lation of Section 8(a)(3) of the Act by having
(a) Discharged Anthony Williams Jeffrey Howell
Tomas Gaton, Raymond Rodriguez , and Jose Cintron in
order to discourage membership in the Union
(b) Reduced the working hours of Anthony Williams
in order to discourage union membership
(c) Reduced the vacation pay of Raymond Rodriguez
to discourage membership in the Union
5 The unfair labor practices found in paragraphs 3 and
4 have a close intimate and substantial relationship to
trade traffic and commerce among the several States
and tend to lead to labor disputes burdening and ob was rotten to the core with illegal drivers
structing commerce and the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act
6 Respondent did not unlawfully suspend Tomas
Gaton, unlawfully terminate the employment of Fred
Cordero, create the impression among employees that it
engaged in the surveillance of their union activities or
commit unfair labor practices other than those found
above in paragraphs 3 and 4
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or
dered to cease and desist therefrom and to take certain
affirmative action necessary to effectuate the policies of
the Act
As noted above Jeffrey Howell s driver's license had
been suspended for nonpayment of fines and it appears
that Anthony Williams license had also been suspended
some time before his discharge It would be inappropri
ate for the Board to order Respondent to reinstate them
to their former jobs as drivers if they still do not have
valid licenses The fact that Respondent has employed
drivers, who also had no valid licenses, i could not justi
fy a Board order directing Respondent to put unlicensed
drivers on the road Of course, Respondent however, is
not to be relieved of its backpay liabilities because of
Williams and Howell s license deficiencies so long as it
countenances those of the drivers on its current staff
This is the clear import of the holding in Rainbow Coach
es, 280 NLRB 166 at 200 (1986) There the Board adopt
ed the recommended backpay order that, inter alia pro
vided for backpay to a driver who lacked the requisite
driving license and where, as here, the employer had to
have known this Therefore it is appropriate to insure
that the discrimination here will cease and also be fully
remedied as to Howell and Williams, among others
without doing violence to the motor vehicles statutes of
the State of New York by requiring Respondent, (1) in
its reinstatement offers to Howell and Williams as de
scribed in the next paragraph, to keep them open and (2)
to make Howell and Williams whole for all earnings lost
as a result of their unlawful discharges so long as it has
one or more drivers on its payroll with suspended or
otherwise invalid licenses
Having found that Respondent has unlawfully dis
charged Anthony Williams, Jeffrey Howell Tomas
Gaton, Raymond Rodriguez, and Jose Cintron I shall
recommend that Respondent shall be ordered to offer
them reinstatement to their former jobs or if these no
longer exist, to substantially equivalent positions of em
ployment and make them whole in accordance with the
method prescribed in F W Woolworth Co, 190 NLRB
289 (1950) with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987) Respondent shall
also be ordered to make Anthony Williams and Ray
mond Rodriguez whole with interest computed in the
same manner with respect to their respective losses re
' Indeed the General Counsels brief stated that Respondents staff
FUTURE AMBULETTE
suiting from reduction in working hours and vacation
pay
On the basis of these findings of fact and conclusions
of law and on the entire record I hereby issue the fol
lowing recommended2
ORDER
The Respondent , Future Ambulette , Inc New York,
New York, its officers , agents, successors , and assigns
shall
1 Cease and desist from
(a) Coercively questioning employees regarding their
support for Local 1034, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America , AFL-CIO (the Union)
(b) Telling employees that there will be no union at its
facility
(c) Threatening to reduce wages , to make conditions
worse for employees , and to take unspecified reprisals
against employees to undermine their support for the
Union
(d) Warning employees that they can be discharged
for supporting the Union
(e) Impliedly promising employees benefits by solicit
Ing grievances from them for the purpose of discourag
ing support for the Union
(f) Making disparaging and misleading remarks to em
ployees about union officials in order to induce them to
abandon their support of the Union
(g) Threatening that it would close down its facility to
induce employees to withdraw their support of the
Union
(h) Discharging employees in order to discourage
membership in the Union
(i) Reducing working hours or vacation pay in order
to discharge membership in the Union
(l) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer immediate and full reinstatement to Anthony
Williams Jeffrey Howell Tomas Gaton Raymond Ro
2 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
895
dnguez, and Jose Cintron to their former jobs or, if
those jobs no longer exist, to substantially equivalent
ones, without prejudice to their seniority or other rights
and privileges and make them whole for their lost earn
ings in the manner set forth in the remedy section above
including moneys due Anthony Williams and Raymond
Rodriguez for losses incurred by them, respectively, for
reduction in working hours and vacation pay The rein
statement offers to Anthony Williams and Jeffrey Howell
will remain open to them as described in the remedy sec
tion
(b) Remove from its files all reference to the discrimi
natory discharges of those five employees and to the dis
criminatory reduction in working hours and vacation pay
of respectively Anthony Williams and Raymond Rodri
guez and notify each of these five employees in writing
that this has been done and that evidence of unlawful
conduct will not be a basis for future personnel action
against them
(c) Preserve and on request, make available to the
Board or its agents for examination and copying, all pay
roll records, social security payment records, timecards
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its facility in New York, New York, copies
of the attached notice marked 'Appendix' 3 Copies of
the notice, on forms provided by the Regional Director
for Region 2, after being signed by the Respondents au
thonzed representative, shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that 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 this Order what steps the Re
spondent has taken to comply
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found
3 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 Nation
al 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