Guardian Ambulance Service

National Labor Relations Board - Board Decisions

Mar 31, 1977

228 N.L.R.B. 1127 (N.L.R.B. 1977)

GUARDIAN AMBULANCE SERVICE
New York Patient Aids Inc. d /b/a Guardian Ambu-
lance Service and American Medical Supplies'
and Local 531, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Hel-
pers of America. Cases 29-CA-4615 and 29-CA-
4756
March 31, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On November 4, 1976, Administrative Law Judge
Abraham Frank issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, New York
Patient Aids Inc. d/b/a Guardian Ambulance
Service and American Medical Supplies, Freeport,
New York, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
i The name of the Respondent has been amended to conform to the
evidence in the record.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
i Members Fanning and Jenkins would find that the bargaining
obligation of the Respondent began on September 24, 1975, the date the
demand and refusal for recognition occurred, but recognize that existing
Board precedent would establish the date as September 26, and thus are
willing to abide by that precedent until it is overruled.
i My findings of fact are based upon a composite of the testimony of
both the General Counsel's and the Respondent's witnesses. In resolving
credibility I have relied upon the demeanor of the witnesses on the stand,
their ability to recollect events, their straightforwardness in responding to
questions, their contradictory statements whether on the stand or in
affidavits, my assessment of the strength of their personalities and their
228 NLRB No. 151
DECISION'
1127
ABRAHAM FRANK, Administrative Law Judge: The
charges in this consolidated case were filed on October 3,
1975,2 and December 5, 1975, respectively. The complaint,
alleging violations of Section 8(a)(1), (3), and (5) of the Act,
issued on March 19, 1976. The hearing was held on June 7,
8, 9, 15, and 16 at Hempstead, New York. A brief was filed
by New York Patient Aids Inc. d/b/a Guardian Ambu-
lance Service and American Medical Supplies 3 and has
been carefully considered.
The principal issues raised by the complaint related to
Respondent's alleged violation of Section 8(a)(5) and (1) of
the Act in refusing to recognize and bargain with the
Charging Party and whether or not the remedy of a
bargaining order is warranted under the rule of N. L. R B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969). In this
connection the complaint alleges independent violations of
Section 8(a)(1). Subsidiary issues are the alleged construc-
tive discharge of one employee and the discharge of
another, all in violation of Section 8(a)(3) and (1).
New York Patient Aids Inc., a New York Corporation
with its principal place of business in Freeport, New York,
and branch offices in Long Beach and North Babylon,
New York, is engaged through its divisions, Guardian
Ambulance Service and American Medical Supplies, in the
business of providing private ambulance and ambulette
service to the public and in selling or renting medical
equipment such as hospital beds, wheelchairs, and sick-
room supplies at retail. Gerald Bartlett is the president of
the corporation and controls the activities of both divi-
sions, including setting labor relations policy. I find the
three companies constitute a single employer in an
integrated business enterprise. During the past year, a
representative period, Respondent purchased goods and
materials valued in excess of $50,000 from companies in
the State of New York, which goods and materials had
been received by such companies in interstate commerce
from points located outside that State. I find Respondent is
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Local 531, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen Helpers of America, hereinaf-
ter called the Union, is a labor organization within the
meaning of the Act.
Early in September, Duane Ragan, one of Respondent's
ambulance drivers, aggrieved because the employees were
not allowed to punch their timecards and because he had
been suspended 1 week for drinking alcohol while on call,
contacted the Union and made an appointment for a
meeting to discuss union representation. On September 19
Ragan and Larry Schlossberg, the two alleged discrimina-
tees in this case , and several other employees met with the
proclivity to be truthful in such circumstances , and upon the natural and
probable course of events from the beginning of the first alleged unfair labor
practice to the last.
2 All dates are in 1975 unless otherwise indicated
3 The name of Respondent is amended to conform to the evidence in the
record.,
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's secretary-treasurer , Joseph Biasucci , and the then
vice president, Charles Kranitz.4 The union officials gave
the employees booklets explaining the latter 's rights under
the law. Seven employees signed cards in the presence of
Biasucci and Kranitz . The cards were turned over to
Schlossberg and delivered by him to Krantz a few days
later, together with three additional cards that had been
obtained from other employees in the interval.
On September 24, Kranitz visited the Freeport office of
Respondent and asked to speak to Bartlett, presenting his
card to the receptionist. When Bartlett approached him,
Kranitz stated that he represented a majority of the drivers
and wished to be recognized . Bartlett refused . Kranitz
asked if Bartlett would consent to a Board election. His
answer was "No." After some words Krantz left.5
On Friday, September 26, the drivers were told by
George Priolo, the dispatcher, when they returned from
work at about 5 p.m., that there would be a meeting in the
showroom, that Bartlett wanted to talk to them. Priolo
testified that Bartlett did not suggest such a meeting; that
Priolo had discussed the Union over the phone that day
with "Rick," another employee (Richard Wilcox); that
Priolo had asked Barlett early in the afternoon if it was
okay if Priolo talked to some of the men, and Bartlett had
responded that it was okay. Prior to the meeting, without
any instruction from management , Priolo told the drivers
that they would not receive their paychecks "unless they
sat down and listened to what we had to say." This
procedure was necessary, according to Priolo, because it
was the only way to keep the employees there at that time.
Approximately 90 percent of the drivers attended the
meeting.
About half an hour after they had congregated in the
showroom, Bartlett, who had been in the office upstairs,
appeared. He spoke to the assembled employees about the
Union and some of their grievances. He said he had been
approached by the Teamsters; that he could not afford a
union and there would be no union in his shop. Bartlett
told the employees that the Company was not doing too
well; that he had taken $25,000 or $28,000 out of his own
personal savings account to invest in the business to keep it
above water. He further told the employees that a union
was expensive and he might not be able to carry out his
plans for expansion of the business into Suffolk County.
Bartlett told the employees that he could reduce his
operations to two or three ambulances or , in the alterna-
tive, close his business and retire tomorrow, that he was all
set.
The following day, Saturday, September 27, the employ-
ees met informally at the close of business in the front
office. Ragan had previously called several of the employ-
ees, who expressed fear that they would lose their jobs. At
the suggestion of Priolo and Wilcox it was agreed at the
Saturday meeting that the employees would draw up a
personal contract to be presented to Bartlett. On Sunday,
September 28, the employees met again in Respondent's
Freeport showroom. During the afternoon hours they drew
up and reduced to a handwritten document a proposed
5 At the time of the hearing Kramtz was president of the Union.
5 Based upon the credible testimony of Kramtz . Bartlett was asked by his
attorney whether Kranitz had ever claimed to represent a majority of "any
"Employee Contract." A typewritten version of this
document , identified as the sum and substance of the items
listed in the original document , is in evidence as General
Counsel's Exhibit 10. The document contains 11 items,
most of them setting forth benefits already substantially
available to the employees. Several items, however, such as
sick/personal days, a grievance procedure, and employees
punching their own timeclocks were new proposals.
Although Respondent did provide medical insurance, it
had no program to inform employees of this benefit and
employees learned of it through happenstance.
Bartlett joined the meeting at about 4:30 in the
afternoon. The list of demands was either read to him or
shown to him and discussed item by item with him. As the
demands were presented to him Bartlett nodded either in
agreement or, as he testified , to indicate that he understood
what was being said. In any event, Bartlett voiced no
objection to the items as they were presented to him except
with respect to sick leave. He said he had previously
granted sick leave to employees, but that they had abused
the privilege. The employees pushed the point and there
seemed to be apparent agreement on 3 sick days and 2
personal days. However, at the conclusion of the meeting
Bartlett told the employees that he could not agree to any
of the demands until he consulted his attorney.
The contract was never signed by Bartlett and there were
no further negotiations on its terms . Shortly thereafter
Ragan called Krantz and told him what had happened.
Kranitz said that Bartlett had violated the employees'
rights and requested a meeting with them. Ragan, Schloss-
berg, and Doug Albrecht, the employee who had prepared
the typewritten contract, met with Krantz on September
30. Albrecht told Kranitz that he and others like him had
lost confidence in the Union; that they didn't need the
Union; that the employees had a contract. Krantz asked if
he could have the contract and Albrecht gave it to Krantz.
Kranitz stated that he was going to file charges with the
Labor Board.
Another meeting was held with Kranitz on October 9 at
Borelli's Restaurant on Hempstead Turnpike. Most of the
drivers were present at this meeting. While Ragan and
Schlossberg remained firm, other employees had changed
their views and were opposed to the Union. Kranitz stated
that Bartlett had gone outside the scope of the law; that
there was no chance of winning an election because the
bargaining unit had been destroyed. Thereafter, on a
number of occasions Kranitz met with Ragan, Schlossberg,
and one or two other employees to discuss the course of
events.
A. The Appropriate Unit
The parties stipulated that as of September 24 Respon-
dent employed 13 drivers, dispatchers, or ambulance
attendants and 4 other nonsupervisory employees (2
clerical salespersons, I porter, and I mechanic). The
complaint alleges that the appropriate unit comprises all
ambulette and ambulance drivers, helpers, and attendants
and dispatchers working out of Respondent's Freeport
group of New York Patient Aids employees" and responded in the negative.
I do not consider Bartlett's testimony to be in conflict with that of Kranitz.
GUARDIAN AMBULANCE SERVICE 1129
location, excluding office clerical employees, salespersons,
and statutory exclusions. Respondent contends that the
appropriate unit should comprise all of the above employ-
ees on the ground that Respondent does not have rigid job
classifications; drivers perform maintenance duties on their
vehicles and are also employed to assist in Respondent's
business of selling or renting medical equipment. I agree
with Respondent's position. The record shows that there is
no clear separation of functions between employees
engaged primarily as drivers and ambulance attendants
and the clerical employees who sell or rent medical
equipment in Respondent's Freeport showroom. On
occasion , drivers unpack supplies, clean medical equip-
ment, wait on customers, write invoices, demonstrate
equipment, and prepare and deliver such items. It is not
uncommon for a driver or attendant to spend a good part
of the day working in the retail store. As Ragan phrased it,
"If there were no calls, where else would you be?" While
the two clerical salespersons normally do no ambulance
work, at least one of the female clerical salespersons will be
in attendance on an ambulance or ambulette if a female
psychiatric case is involved. Drivers may assist the
mechanic in repairing or maintaining their vehicles and the
mechanic on occasion may make deliveries of medical
equipment. The porter, although a handicapped person,
performs maintenance work in keeping the building clean
and receives a minimum wage.
I find that all ambulance or ambulette drivers, atten-
dants, dispatchers, clerical salespersons, porter, and me-
chanics at Respondent's Freeport, New York, location,
excluding guards and all supervisors as defined in Section
2(11) of the Act, constitute a unit appropriate for the
purposes of collective bargaining.
B. The Union's Majority Status on September 24
The General Counsel introduced into evidence the
signed cards of employees Clifford Stephenson, Douglas
Albrecht, Larry Schlossberg, Michael Waser, Ernest
Gentile, Michael Ostipwko, Duane Luke Ragan, George S.
Priolo, and Richard Wilcox. Of these cards the first seven
were identified by Kranitz who testified credibly that he
witnessed each of these employees sign a card on
September 19. The cards of Priolo and Wilcox are dated
September 20. Each of these employees testified credibly
that he had signed a card for the Union. Wilcox identified
his own card. Priolo confirmed during his testimony that he
had signed a card for the Union and Schlossberg identified
Priolo's card as the card Priolo had signed in Schlossberg's
presence. Gentile, Ostipwko, Stephenson, and Schlossberg
confirmed Kranitz' identification of their cards.
The cards signed by the above employees were unambi-
guous applications for union membership, specifically
6 At the hearing Respondent objected to the admission into evidence of
all cards identified by witnesses other than the actual signers on the ground:
(1) that the signer may not have read the card ; (2) that the signer may not
have understood what he was signing; and (3)'that the signer may have had
a change of mind before the Union claimed majority status and demanded
bargaining on September 24. None of these grounds is sufficient to render
inadmissible cards credibly identified by witnesses as the cards signed by the
employees whose signatures appear thereon. Moreover , as indicated above,
with respect to (1) and (2), the evidence is insufficient, in any event, to
invalidate these cards. With respect to (3), the way was at all times open to
designating the Union as the employee's representative for
the purpose of collective bargaining . There is no evidence
that Kranitz or any other solicitor for the Union told the
card signers that the purpose of signing a card was solely to
secure an election or otherwise misrepresented the purpose
of the cards. Wilcox and Priolo testified that they had not
read the cards before affixing their signatures and that they
did not understand that by signing the cards they were
authorizing the Union to represent them. Priolo testified
further that he thought there would be an election
conducted by the Union to determine the Union's status as
the representative of the employees. I find, despite such
testimony, that the single purpose, unambiguous cards,
which they admittedly signed, are valid for purposes of
determining the Union's majority on September 24.
Neither of these employees is blind, unable to read English,
nor mentally defective. I am persuaded and find that both
of them knew they were signing a card "for the Union" and
that they knew they were thereby indicating their desire for
union representation, as were the other card signers.6
Cumberland Shoe Corporation, 144 NLRB 1268 (1963);
reaffirmed and explained in Levi Strauss & Co., 172 NLRB
732 (1968); approved by the Supreme Court in N.L.RB. v.
Gissel Packing Co., supra at 606-613; Autoprod Inc., 201
NLRB 597 (1973).
On September 24 there were 17 employees in the
appropriate unit . On that date nine employees had signed
valid authorization cards for the Union indicating their
desire to be represented by the Union for the purposes of
collective bargaining. Accordingly, I find that the Union as
of that date had achieved majority representative status
among Respondent's employees at the Freeport location.
C. The 8(a)(3) Allegations
The complaint alleges that Respondent violated the Act
by discharging Larry Schlossberg and Duane Ragan on
October 24 and December 1, respectively.
Larry Schlossberg was first employed by Respondent in
November 1974. He resigned almost a year later on
October 22 under circumstances which the General
Counsel asserts constituted a constructive discharge. He
and Ragan were the two most active union adherents.
Schlossberg was present at the initial meeting with Kranitz
and took custody of the cards signed on September 19 to
check on the reliability of the Union before returning the
cards to Kranitz a few days later. He qualifies as a
paramedic, a superior status in the emergency medical
service field. While working for Respondent, Schlossberg
and Ragan formed a team with the latter as the driver of an
ambulance and the former an attendant. They are close
friends. Prior to the events in September and October
Schlossberg had received two, and Ragan one, disciplinary
Respondent to introduce evidence that any one of these card signers had
repudiated the Union before September 24. No such evidence was offered
In its brief Respondent further contends that the cards identified by Kramtz
should not have been admitted because they were not in his physical
possession for several days after they had been signed. I find no merit in this
argument . Conceivably , the card signers could have prepared duplicates of
their original cards for delivery to the Union. In the absence of evidence that
such duplication occurred or that the signatures were forgeries , Kravitz'
identification of the cards as the cards whose signing he witnessed is
adequate for evidentiary purposes.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suspensions without pay. The incident which gave rise to
Schlossberg's October resignation related to the transfer of
a dialysis patient , Arthur Remetti, from the hospital to his
home on October 9. As indicated above, on that date a
number of Respondent 's employees , including Schlossberg,
Ragan, and Priolo, met with Kranitz at a local restaurant.
Both Ragan and Schlossberg were "on call" that night.
This duty required that the employees be available for
emergency or special calls . Ragan was assigned an
ambulance and Schlossberg an ambulette . Both employees
had been instructed by Clifton Toney, Respondent's
general manager, to leave their vehicles at home if, for any
reason , they had to make a personal trip. Ragan and
Schlossberg did not follow these instructions. Instead,
Schlossberg parked his ambulette in Island Park, some
distance from his home. Ragan drove the ambulance to the
restaurant, picking up Schlossberg en route. During the
course of the evening Priolo was paged twice by Bartlett.
After the first call Priolo told Schlossberg to pick up the
patient , Remetti, at the hospital and return him home.
After the second call Priolo told Ragan that Bartlett
wanted Ragan to report to the office immediately, that
Bartlett wanted to take the cardiac equipment off the
ambulance. Ragan left in the ambulance with Schlossberg.
In the ambulance Ragan received a radio call from
Bartlett . Bartlett told Ragan to deliver Schlossberg to his
ambulette so that Schlossberg could pick up the patient
and transport him in that vehicle. Ragan was told to return
to the shop immediately thereafter . Instead of following
instructions, Ragan and Schlossberg picked up the patient
in the ambulance and returned him home "the fastest way
possible," with red lights flashing and siren sounding. Since
the transfer of this patient was not an emergency call the
use of red lights and siren was a violation of company
rules. The matter was brought to Bartlett's attention by
several employees and the patient himself. As a result,
Ragan and Schlossberg were separated and thereafter were
assigned to ambulettes rather than an ambulance. More-
over, on October 10, the next day, when Ragan and
Schlossberg returned to the office that night, Paul Starr,
Respondent's general manager for Suffolk County, read a
warning to Ragan and Schlossberg to the effect that their
use of red lights and siren in transporting a patient was in
violation of company rules and was under investigation.?
r Schlossberg testified in his direct examination that he and Ragan had
another conversation of an hour 's length about 5 o'clock when they returned
from work on October to. This conversation allegedly took place with
Bartlett , Mrs. Bartlett, and Starr . Mrs. Bartlett is alleged to have said that
"she wouldn 't let the shop go unionized," she'd make him (Bartlett) sell the
business. The complaint makes no reference to such a statement and it was
not included in Schlossberg's affidavit to the Board . Ragan made no
mention of an hour's conversation with Mrs . Bartlett and others and it was
specifically denied by Starr and Mrs. Bartlett. In his cross-examination
Schlossberg put the date as October 11. If the conversation had occurred on
October 10 at 5 o 'clock it would have conflicted with Starr 's delivery of a
formal warning to Ragan and Schlossberg . I do not credit Schlossberg's
testimony in this regard . I believe he was, as to this incident, confused. In
any event, based upon a preponderance of the credible testimony , I find that
Mrs. Bartlett did not on October 10 or I I threaten that Respondent would
sell the business if the shop became unionized.
" The complaint does not allege that Ragan , although the principal
offender, was unlawfully disciplined as a result of the Remetti incident. In
her opening statement , however , counsel for the General Counsel asserted
Nothing further was said about Starr 's charges . Schloss-
berg testified, however, that after a week of driving
an ambulette he was given nondriving work,
such as building a desk , carrying a 20-pound glass desk top
to a glass shop , washing windows , and waxing a racing car
truck. This type of work upset him and he believed he was
being harassed. On October 21 Schlossberg asked and was
given permission to take the day off for an interview with
another medical company. The next day he resigned from
Respondent and his resignation was formally accepted.
The record shows , and Schlossberg conceded in his cross-
examination, that he had, in fact, made a number of
ambulette calls up to the day before his interview for a new
job. I can find nothing in this situation to warrant the
conclusion that Schlossberg was constructively discharged.
While Schlossberg disliked working in the shop and had
made his dislike known, he was at all times aware that it
was part of his job. Other drivers and attendants performed
similar duties on occasion. Moreover, the duties of which
Schlossberg complained were not in my opinion, so
unpleasant and intolerable that an employee of normal
sensitivity would resign rather than submit to such
treatment. Accordingly, I fmd that Respondent did not
constructively discharge Schlossberg in violation of Section
8(a)(3) and (1) of the Act .8
Duane Luke Ragan - At the time of the hearing Ragan
had been employed by Respondent for about 2 years,
originally as an ambulette and finally as an ambulance
driver. As indicated above, Ragan was the employee who
initiated the Union's organizational campaign and with
Schlossberg was one of the two most active union
supporters . In his testimony Bartlett conceded that Ragan
was a competent ambulance driver with considerable
expertise in his field of medical service . Although Ragan
was assigned to an ambulette rather than an ambulance
after the Remetti incident, he was not otherwise discip-
lined. He had previously been suspended for 1 week
because he had been drinking alcohol while on call.
The critical event that gave rise to Ragan's 2-week
suspension as claimed by Respondent , or discharge, as
alleged in the complaint, occurred during Thanksgiving
week between Monday, November 24, and Friday, No-
vember 28. Ragan testified that he asked Toney on
Monday or Tuesday of that week if Ragan could take the
that it was a "comedown" for Ragan to be reduced to driving an ambulette
after driving an ambulance . The matter was fully litigated at the hearing. I
therefore deem it appropriate to consider this issue . The General Counsel
introduced evidence , inter aka, that at times ambulette patients were
transported in ambulances ; that drivers ambulances often misused their
lights and sirens without reproof from management; and that it was most
unusual for Respondent to page one driver in order to contact another. Such
evidence, in my opinion , is insufficient to prove by a preponderance of the
credible evidence that Respondent engineered and used the Remetti
incident as a pretext to discipline the two most active union adherents.
Whether Respondent's business judgment was good or bad or a deviation
from the norm, this statute does not give an employee a right to defy
repeatedly his employer's specific orders. There is no evidence that the
misuse of lights and sirens by Ragan or any other driver had previously been
brought to Bartlett 's attention . Moreover , Respondent 's response to the
Remetti incident was exceedingly mild. Neither employee lost any pay The
jobs of ambulette or ambulance driver are interchangeable. In these
circumstances I find that Respondent did not violate the Act with respect to
its treatment of Ragan as a consequence of the Remetti incident.
GUARDIAN AMBULANCE SERVICE 1131
day after Thanksgiving, Friday, off and whether he could
get his check early on Wednesday. Toney replied that
Ragan could not have Friday off, but Toney would see
about getting Ragan his check on Wednesday. Ragan
replied that if Toney did not give him the day off, Ragan
would take it as a sick day, and Toney replied, "We don't
have sick days." Ragan stated that he was going to take the
day off anyway. As Toney left, he said he would see what
he could do. Ragan wasn't sure whether Toney referred to
the check or the request for a day off. On Wednesday
Toney told Ragan that Ragan could not have Friday off
and could not get his check early. Ragan responded that he
would call in sick and Toney said, "We don't have sick
days." That evening Ragan received a call from Toney
during which Toney told him to report to work on Friday
or not to punch in on Monday. Ragan hung up on Toney.9
Ragan took the Friday off without leave and reported to
work the following Monday, December 1. He saw Toney,
who told Ragan not to punch in. However, Ragan called
Bartlett at home and Bartlett contacted Priolo. Ragan was
assigned to Suffolk County for that day. At 6 o'clock that
evening when he punched out, Toney told Ragan that
Bartlett wanted to see him. According to Ragan's testimo-
ny, Bartlett, in the presence of Toney, said it was wrong for
Ragan to take Friday off; that too many people were
watching to see what he was going to do about the
incident; that Bartlett couldn't have Ragan around the
shop anymore; that Ragan was stirring up the men badly;
that Ragan was a union instigator, and that they'd have to
part their ways; that if Ragan changed his attitude he could
come back and see Bartlett in about 2 weeks or a couple of
weeks; and that Ragan would not get a job with another
ambulance company in Nassau County. Ragan concluded,
as of that time, that, as far as he knew, he was fired.
Bartlett's version of his meeting with Ragan on December
1, supported by the testimony of Toney, differs in material
respects from Ragan's testimony. Bartlett denied that he
had called Ragan a union instigator; denied saying that
Ragan would not get a job with another ambulance
company in Nassau County; and denied firing him.
Bartlett testified that he told Ragan that due to previous
problems - Ragan had had one previous suspension to
Bartlett's knowledge - that Ragan was going to be
suspended for another 2 weeks. Bartlett indicated that he
thought there might be a personality conflict between
Ragan and Bartlett or some other employees; that Ragan
admitted having a bad attitude; that Bartlett suggested that
when Ragan returned he might want to work for Nassau
Ambulance, a company Bartlett was in the process of
purchasing.
Thereafter Ragan secured a job with Holmes Ambulance
Company. Several weeks later while working for Holmes,
Ragan received a telegram from Guardian telling him to
report back to work. He called Bartlett and it was agreed
that Ragan would return to work for Guardian after giving
Holmes 2 weeks' notice. At the time of the hearing Ragan
was working for Respondent in Suffolk County.
Whether or not Respondent disciplined Ragan on
December I because of his union activities raises initially a
clear question of credibility. If Ragan is believed, Bartlett
took the opportunity to accuse Ragan of being a union
instigator and, in that context, told him that they would
have to part their ways unless Ragan changed his
"attitude" in which event he could return in a "couple of
weeks." Having observed both witnesses on the stand, I do
not accept Ragan's version of the December 1 interview.
While I have elsewhere credited portions of Ragan's
testimony, which had the ring of truth and was consistent
with the testimony of other witnesses, I do not regard him
as a reliable witness when his word stands alone against
that of another witness. He is a competent young man, but,
as the record shows, willful and at times irresponsible.
Having testified specifically that he did not recall engaging
in a fire extinguisher fight with Schlossberg, he easily
reversed himself and conceded that he had, in fact,
participated in such a fight and had denied his conduct
when questioned by Toney. His testimony in other respects
shows lapses of memory on critical points. Bartlett, on the
other hand, impressed me as an intelligent businessman.
Although his testimony was tailored by careful questions
and unasked questions to reflect a version most favorable
to his legal position, I do not believe he would engage in
open falsehood. Moreover, on December 1 he was aware
that unfair labor practice charges had been filed against
him and were under investigation by the Board. In my
opinion, he is not a person so naive as to have provided
Ragan with an unlawful reason for his discipline when a
lawful reason existed . Crediting Bartlett's testimony, I find
that Ragan was suspended on December 1 rather than
discharged. Both witnesses testified that there was talk of
Ragan's bad attitude, which Ragan interpreted to mean his
support for the Union. However, it is clear that Ragan's
attitude toward his superiors was bad and needed changing
without regard to his union activities. I find that Ragan was
told to return in several weeks with a changed attitude.10
There remains the question whether Bartlett, without
discussing the Union with Ragan, used Ragan's absence
without leave as a pretext to punish an active union
adherent. I do not believe this is so. Other employees, as
Bartlett told Ragan, were watching to see what Bartlett
would do about the incident. If Bartlett did nothing, it
would appear that Ragan had some sort of immunity from
discipline. Clearly, he did not. Employees have a statutory
right to engage in union activity without interference from
their employer. But the Act is not a shield protecting
employees from their own misconduct or insubordination.
Ragan's refusal to report to work in defiance of a direct
order by his superior is the type of conduct an employer
cannot condone. I find that Ragan was suspended for
cause on December 1 and that Respondent did not thereby
violate Section 8(a)(3) and (1) of the Act.
9 Toney's version differs in specific, but not substantive detail. In view of were leaving, words to the effect, he'll see you in 2 weeks. Mrs. Ragan
my findings herein, I accept Ragan's version of his conversation with Toney denied she had made such a statement. I find it unnecessary to resolve this
as most favorable to Ragan . issue . Assuming the statement was made, it has no probative value on the
10 Witnesses for Respondent testified that Ragan's wife picked him up at issue of suspension rather than discharge, as Ragan testified he was told to
the office following his suspension on December 1 and called out, as they come back in a couple of weeks.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
I find that Respondent violated Section 8(axl) of the Act
by virtue of Bartlett' s statements to the assembled
employees on September 26 in the following respects: (1)
by telling the employees there would be no union in his
shop in an anticipatory refusal to bargain with the Union;
(2) by threatening not to expand his business into Suffolk
County in the event of unionization; and (3) by threatening
to reduce his business to two or three ambulances or, in the
alternative, close his business and retire in response to the
possibility of unionization of his shop.
I find that Respondent further violated Section 8(aX5)
and (1) of the Act by Bartlett's negotiating directly with his
employees on September 28 with respect to their terms and
conditions of employment. Such negotiations occurred
when, as set forth below, Respondent's bargaining obliga-
tion had commenced as a consequence of its unfair labor
practices.
The above unfair labor practices occurred on only 2 days
at the outset of the Union's organizational campaign.
However, their impact on the employees' representational
right was startling and pervasive. The employees were
confronted with the real possiblity that all or some of them
might lose their jobs if they remained adherents of the
Union. On the other hand, Bartlett indicated that he was
not adverse to dealing with them without a union and held
out the hope that by such means they could secure all the
modest improvements they sought. A few days later the
employees discovered that an "Employee" contract was
impractical and would give them little security. Neverthe-
less, the fear of having no job was greater than the hope of
having a better job, and the Union's majority was
effectively dissipated.
Respondent contends that it had a right under Section
8(c) to inform the employees that its business was in
financial difficulties and might be curtailed or closed if a
union was expensive. I find no merit in this argument. The
Supreme Court has held that an employer has a right to go
out of business entirely, even if motivated by union
considerations.lt But the Court made it clear that it does
not follow that an employer has a right to threaten to go
out of business for the purpose of interfering with the
organizational rights of his employees, unless such a
decision has actually been made by the company's board
of directors or other authorized personnel.12 Moreover, in
the instant case Bartlett had no actual knowledge of how
expensive a union would be. He entertained without
serious objections the employees' concept of a labor
agreement, but he made no attempt at all to determine
whether such a reasonable agreement could be reached if
the employees were unionized. He rejected that idea out of
Textile Workers Union of America v. Darlington Manufacturing Co, et
al., 380 U.S 263,273-274 (1965).
12 Ibid, fn 20.
13 In fairness to Respondent it should be noted that Bartlett , during the
early stages of the Union's campaign, was without labor counsel and may
have been unaware that his suggestion to the employees that he might
curtail or go out of business entirely to avoid unionization was unlawful.
14 N L R B v. Gissel Packing Co., supra at 619.
15 Ibid NL.R.B, v. Mendel Manufacturing Company, Inc., 483 F.2d 350
(C A. 2, 1973); enfg . 197 NLRB 1093 (1972). The bargaining obligation
commenced on September 26, the date Respondent embarked upon a
hand. Bartlett testified that over a period of about 2 years
he had spoken to friends in the ambulance business who
were unionized and they had told him that the individual
base was not too great, but that the welfare and pension
plan was extremely expensive . After Kranitz' visit in
September Bartlett had spoken to Ira Goldman or
Goldberg of A. A. Ambulance . Ira could not tell Bartlett
the costs of Ira's union contract in 1976 because it was
coming up for renewal . The above information, which was
obtained during business conventions or association
meetings "popped up," as Bartlett testified , at the drop of a
hat. Apparently, it was all the objective information
Bartlett had or attempted to obtain.
Bartlett may have honestly believed that a union would
be too expensive to permit him to make a profit from his
business. But I am satisfied that his purpose was not merely
to express such an opinion or prediction , but rather to
make it clear to his employees that he could and would
take action on his own to eliminate jobs or retire in the
event the unionization of his shop became a reality . 13 This
is what the employees understood him to be saying, and
they reacted by abandoning the Union .14 I find that
Respondent violated Section 8(a)(5) and (1) of the Act
when it refused to recognize and bargain with the Union. I
also find that a bargaining order is the only realistic
remedy for Respondent's unfair labor practices in this
case.'5 The threat to close a plant is, as the Board has held,
the most flagrant means used by employers to dissuade
their employees from collective bargaining.16
In my opinion, a fair election in which the employees can
freely decide whether or not they desire union representa-
tion cannot be held in the foreseeable future at Respon-
dent's Freeport plant . Moreover, a bargaining order is not
forever. If after a reasonable period of good-faith collective
bargaining, the employees desire to disavow the Union
they may do so by filing a representation petition.17
Upon the foregoing findings of fact and conclusions I
hereby issue the following recommended:
ORDER 18
The Respondent, New York Patient Aids Inc. d/b/a
Guardian Ambulance Service and American Medical
Supplies, all constituting a single employer, Freeport, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Informing employees that there would be no union in
the shop, thereby engaging in an anticipatory refusal to
bargain.
(b) Threatening not to expand its business into Suffolk
County in the event of unionization.
course of substantive unfair labor practices to defeat the employees'
organizational campaign . W & W Tool & Die Manufacturing Co., 225 NLRB
1000 (1976).
16 General Stencils, Inc., 195 NLRB 1109 (1972).
17 N.LR.B. v. Gissel Packing Co., supra at 613.
18 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findingt , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
GUARDIAN AMBULANCE SERVICE
(c) Treatening to curtail its business to two or three
ambulances or close the business entirely to avoid
unionization of its shop.
(d) Bargaining directly with its employees at a time when
an exclusive bargaining obligation with a union exists and
inferentially promising its employees through such direct
negotiations improved benefits and conditions of employ-
ment.
(e) Refusing to bargain collectively with Local 531,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
bargaining representative of the employees in the following
unit:
All ambulance and ambulette drivers, attendants,
dispatchers, clerical sales personnel, mechanic, and
porter, at Respondent's Freeport, New York, location;
excluding guards and all supervisors as defined in
Section 2(11) of the Act.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain with the above-
named Union as the exclusive representative of all
employees in the aforesaid appropriate unit and, if an
understanding is reached, embody such understanding in a
written signed agreement.
(b) Post at its place of business in Freeport, New York,
copies of the attached notice marked "Appendix." 19
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including 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.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges that Respondent unlawfully
discharged Duane Luke Ragan and Larry Schlossberg and
insofar as it alleges violations other than those specifically
found herein.
19 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
1133
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT inform our employees that there will
be no union in the shop in an anticipatory refusal to
bargain with a lawfully selected union.
WE WILL NOT threaten our employees that our
business will not be expanded into another county in
the event of unionization.
WE WILL NOT threaten to curtail our business to two
or three ambulances or close our business entirely to
avoid unionization of our shop.
WE WILL NOT bargain directly with our employees at
a time when an exclusive bargaining representative
exists and inferentially promise our employees through
such direct negotiations improved benefits and condi-
tions of employment without a union.
WE WILL NOT refuse to bargain with Local 531,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclu-
sive representative of the employees in the bargaining
unit described below.
WE WILL, upon request, bargain collectively with the
above-named Union in the bargaining unit described
below with respect to rates of pay, hours of employ-
ment, and other conditions of employment and, if an
understanding is reached, embody such understanding
in a written signed agreement. The bargaining unit is:
All ambulance and ambulette drivers, attendants,
dispatchers, clerical sales personnel, mechanic,
and porter, at Respondent's Freeport, New York,
location; excluding guards and all supervisors as
defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them in Section 7 of the National
Labor Relations Act.
All our employees are free to become or remain members
of the above-named Union or any other labor organiza-
tion.
NEW YORK PATIENT AIDS
INC. D/B/A GUARDIAN
AMBULANCE SERVICE AND
AMERICAN MEDICAL
SUPPLIES