Life EMS Ambulance of Kalamazoo, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 9, 2008

07-A-050855 (N.L.R.B. Jan. 9, 2008)

JD(ATL)–01–08
Kalamazoo, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
LIFE EMS AMBULANCE OF KALAMAZOO, INC.
and
INTERNATIONAL ASSOCIATION OF EMTS AND
PARAMEDICS, NAGE/SEIU
Case GR–7–CA–50655
Colleen Carol, Esq., for the General Counsel.
David M. Buday, Esq., for the Respondent.
BENCH DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. This case was tried in Grand Rapids,
Michigan, on December 13, 2007, pursuant to a complaint that issued on October 25, 2007.
The charge was filed on September 5, 2007. The complaint alleges that the Respondent
threatened employees with discharge for engaging in activities on behalf of the Union. The
Respondent’s answer denies any violation of the Act. The General Counsel presented
employee Michael Weaver, the employee to whom the threat allegedly was made. The
Respondent presented John Walker, the supervisor who allegedly made the threat. After
hearing oral argument, I issued a Bench Decision pursuant to Section 102.35(a)(10) of the
Board’s Rules and Regulations.
The Union began an organizational campaign among the Respondent’s employees in
June 2007. The alleged threat was purportedly made on August 30, 2007, at the end of a short
meeting in which supervisor Walker, according to Weaver, presented to him and the paramedic
with whom he worked, Kari Olson, a letter to employees from the Respondent that reflected the
Respondent’s opposition to the Union. Thereafter, Walker, Weaver, and Olson engaged in two
or three minutes of small talk. The threat allegedly was made in the context of the small talk
and occurred shortly before the employees left. Weaver testified that Walker stated that
“individuals that tend to stir things up might be let go; something to that context.“ On
cross examination, Weaver was asked, “That's exactly what he said?” Weaver answered,
“That's approximately what he said, sir.” He was then asked, “You don't remember
exactly what he said?” Weaver answered, “No.” See Harrah’s Marina Hotel & Casino, 296
NLRB 1116, 1119 (1989).1
Olson was not called to corroborate Weaver’s testimony. Weaver’s admission that his
testimony was “approximately” what Walker allegedly said left me unable to determine exactly

1 My bench decision fails to set out the statement or the specific words by which Weaver
admitted that he was unable to “remember exactly what … [was] said.” As discussed therein,
the issue is whether the General Counsel established that any unlawful statement was made.
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what was said. Weaver admitted that he did not feel threatened. My decision states that
Weaver’s admission regarding his subjective reaction is not material. I failed to qualify that
statement by noting that I was referring to the inapplicability of subjective reactions when
determining whether Section (8)(a)(1) has been violated, i.e. a threat that violates Section
8(a)(1) is not vitiated because the recipient does not feel threatened. In this case, Weaver’s
admission is relevant as an evidentiary matter. His admission that he did not feel threatened,
when coupled with his acknowledgement that he did not remember “exactly what he [Walker]
said,” calls into question whether whatever was uttered by Walker constituted a threat.
Walker, who is a daytime field supervisor, did not recall any conversation with Weaver
or paramedic Olson on August 30, 2007. He denied that he presented the letter to them,
testifying that he assumed that the field supervisor on the next shift would have done so.
I found both Weaver, who candidly acknowledged that he could not recall “exactly” what
Walker said, and Walker, who recalled no conversation and denied that he gave the letter to
Weaver, to be credible. Nothing in their demeanor either detracted from or bolstered their
credibility. In the absence of independent evidence either corroborating or contradicting the
testimony of either, I determined that the General Counsel failed to carry the burden of proof.
Old Dominion Freight Line, 331 NLRB 111, fn. 1 (2000); Sea Crest Construction Corp., 330
NLRB 584, fn. 1 (2000).
I certify the accuracy of the portion of the transcript that sets out my decision, attached
as Appendix A, page 63, line 18, through page 65, line 22.2
In view of the foregoing, the findings of fact and conclusions of law as set out in my
bench decision, and on the entire record, I issue the following recommended3
ORDER
The complaint is dismissed.
Dated, Washington, D.C., January 9, 2008.
_____________________
George Carson II
Administrative Law Judge

2 Appendix A has been corrected. The corrections are reflected in Appendix B.
3 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
purposes.
JD(ATL)–01–08
APPENDIX A
63
18 The complaint alleges, the answer admits, and I find and conclude that

19 the Respondent is a corporation with several offices and

20 places of business in various Michigan towns and cities

21 including one at Kalamazoo, Michigan, the

22 facility about which the testimony today related.

23 The Respondent annually in conducting its business

24 operations derives gross revenues in excess of $500,000 and

25 purchases and receives at its Michigan facilities goods and

64
1 materials valued in excess of $50,000 directly from points

2 located outside the State of Michigan.

3 The Respondent admits, and I find that the Union,

4 International Association of EMTs and

5 Paramedics, NAGE/SEIU, is a labor organization.

6 I am struck by the absence of any affirmative animus in

7 this proceeding directed specifically at the Union in that

8 Mr. Weaver admitted that during the campaign employees were

9 permitted to post pro-union literature, that they identified

10 themselves on occasion when they did post it, and that no

11 adverse action occurred relative to those employees. Taking

12 the statement to which Mr. Weaver testified at face value, a union is

13 not mentioned as Counsel for the Respondent correctly pointed

14 out, and although it is certainly not material to my

15 decision, Mr. Weaver admitted that he did not feel threatened

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16 by the statement that was made.

17 My real problem is the statement itself. Mr. Weaver

18 indicated that he could not recall absolutely the specific

19 words that were used, and I find that inability to recall

20 specifically the words that were used to be critical to the

21 General Counsel establishing by the greater weight of the

22 evidence that in fact words which constituted a threat in

23 violation of Section 8(a)(1) of the Act were used.

24 Mr. Walters recalls no conversation with Mr. Weaver, and

25 certainly insofar as he does not deny a conversation as such,

65
1 his testimony that he does not recall it is a fully credible

2 response to the question relative to his recollection of it,

3 and I do credit his lack of recollection with regard to it.

4 Critical to this case is the fact that there were three

5 people in the room when the statement was allegedly made.

6 I do not draw an adverse inference against the General Counsel with

7 regard to the failure to present Ms. Olson to corroborate,

8 but the absence of corroboration, coupled with the

9 acknowledgement by Mr. Weaver that he cannot recall

10 specifically what was said, in fact is compelling evidence

11 that the statement as stated in his testimony is the best of his recollection

12 and not the statement that was actually made, whatever that

13 statement may have been.

14 In short, considering the absence of animus, the absence

15 of corroboration, and the arguable ambiguity of the statement

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16 that Mr. Weaver does recall to the best of his ability even

17 though he acknowledges that he cannot recall the exact words

18 said, I cannot find that the General Counsel by the greater

19 weight of the evidence has established that the Respondent

20 violated Section 8(a)(1) of the Act, and therefore I shall

21 recommend that the Complaint be dismissed. That concludes my

22 bench decision.
JD(ATL)–01–08
APPENDIX B
Page Line Delete Insert
63 18 Complaint alleges the Answer
admits, and I find
complaint alleges, the answer
admits, and I find and conclude
21 Michigan to with the Kalamazoo Michigan, the
22-23 During the--the The
25 Facilities facilities
64 2 state State
3 find that the union find and conclude that the Union
4 Charging Party/Union,
7 union Union
9 and that
10 it it,
12 he Mr. Weaver
13 the counsel for Counsel for the
65 1 but testifies that he does not recall
it,
his testimony that he does not recall
it
5 this room when this statement
was allegedly made,
the room when the statement was
allegedly made.
6 and General Counsel, I do not
draw an adverse inference
I do not draw an adverse inference
against the General Counsel
8 corroboration corroboration,
9 that, by by
10 fact, fact
11 as stated as stated in his testimony