Meda-Care Ambulance, Inc.

National Labor Relations Board - Board Decisions

Aug 3, 1983

266 N.L.R.B. 1208 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meda-Care Ambulance, Inc. and 1199W, National
Union of Hospital and Health Care Employees,
RWDSU, AFL-CIO. Case 30-CA-6746
3 August 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 11 January 1983 Administrative Law Judge
Irwin H. Socoloff issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief and a motion to ex-
punge an exhibit from the record or, alternatively,
to admit a superseding exhibit into evidence.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record' and the
attached Decision in light of the exceptions and
brief and has decided to affirm the rulings, find-
ings,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 Re-
We grant Respondent's motion to admit into evidence the United
States Court of Appeals for the Seventh Circuit's decision in Grisbaum v.
Meat Cutters Local .o. 73, 696 F.2d 520 (7th Cir. 1982). The Seventh
Circuit's decision supersedes the United States District Court for the
Eastern District of Wisconsin's decision in the same case, which is G.C
Exh. 29 in the instant case.
2 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have careful-
ly examined the record and find no basis for reversing his findings. We
have further considered Respondent's contention that the Administrative
Law Judge had evidenced a bias against Respondent's position. We have
carefully considered the record and the attached Decision and reject
these charges.
In sec. IItC, par. 6, of his Decision, the Administrative Law Judge
found, based on the uncontradicted testimony of several employees, that
Respondent's president. Darwin Larsen, had stated to employees that if
union activities continued he would close the Company down. This state-
ment was not alleged as or found to be an unfair labor practice in this
case because it was alleged in another case, which was settled.
At sec. IlI,C, par. 24, of his Decision, the Administrative Law Judge
inadvertently left out of the sixth sentence the word "not," which should
be placed between the words "did" and "want."
And, finally, throughout his Decision, the Administrative Law Judge
misspelled the name of Respondent's general manager, Charles Faist, as
"Fiast."
3 Although the Administrative Law Judge ordered Respondent to ex-
punge from its files any reference to Bonnie M. Lund's discharge, he ne-
glected to include any mention of this in his proposed notice. We there-
fore order that the following paragraph be added to the Administrative
Law Judge's notice: "WE WILL expunge from our files any reference to
the 4 September 1981 discharge of Bonnie M. Lund, and WE WILL
notify her in writing that this has been done and that evidence of this
unlawful discharge will not be used as a basis for future personnel actions
against her."
266 NLRB No. 214
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Meda-Care
Ambulance, Inc., Milwaukee, Wisconsin, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for
that of the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promulgate, maintain in
effect, or enforce unlawfully broad no-solicita-
tion and no-distribution rules and WE WILL
withdraw and abolish such rules previously
promulgated.
WE WILL NOT discharge employees because
they support a union or otherwise engage in
protected concerted activities.
WE WILL NOT in any like or related manner,
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed in
the National Labor Relations Act.
WE WILL offer Bonnie M. Lund immediate
and full reinstatement to her former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to her seniority and other rights and
privileges previously enjoyed.
WE WILL make Bonnie M. Lund whole for
any loss of earnings she may have suffered be-
cause of the discrimination against her, plus in-
terest.
WE WILL expunge from our files any refer-
ence to the 4 September 1981 discharge of
Bonnie M. Lund, and WE WILL notify her in
writing that this has been done and that evi-
dence of this unlawful discharge will not be
used as a basis for future personnel actions
against her.
All of our employees are free to become, remain,
or refrain from becoming or remaining members of
1199W, National Union of Hospital and Health
Care Employees, RWDSU, AFL-CIO, or any
other labor organization of their choosing.
MEDA-CARE AMBULANCE, INC.
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MEDA-CARE AMBULANCE, INC.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge: Upon
a charge filed on September 30, 1981, by 1199W, Nation-
al Union of Hospital and Health Care Employees,
RWDSU, AFL-CIO, herein referred to as the Union,
against Meda-Care Ambulance, Inc., herein called Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
30, issued a complaint dated November 20, 1981, and an
amendment to complaint dated February 26, 1982, alleg-
ing violations by Respondent of Section 8(a)(4), (3), and
(I) and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended, herein called the Act. Respond-
ent, by its answer, denied the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held before me in
Milwaukee, Wisconsin, on March 15 through 18, 1982, at
which the parties were represented by counsel and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence.
Thereafter, the General Counsel and Respondent filed
briefs which have been duly considered.
Upon the entire record in this case, and from my ob-
servations of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Wisconsini corporation engaged, at its
Milwaukee and West Allis, Wisconsin, locations, in inter-
state and intrastate transportation of passengers by ambu-
lance vehicles. During the year ending December 31,
1980, it derived gross revenues in excess of $500,000
from this operation and received, at the aforesaid loca-
tions, goods and materials valued in excess of $50,000
which were sent, indirectly, from points located outside
the State of Wisconsin. I find that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. IABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
I11. THE UNFAIR LABOR PRACTICES
A. Background
Respondent utilizes emergency medical technician
(EMT) crews, based at its Milwaukee (Station I) and
West Allis (Station 2) locations, to transfer patients by
ambulance. Primarily, the EMT's transport elderly
people to and from nursing homes and hospitals. Typi-
cally, Respondent maintains for this purpose two-man
crews at both stations on a 24-hour-per-day basis. In all,
it employs some 20 to 22 such technicians.
The emergency medical technicians receive their am-
bulance run assignments from dispatchers, who often
work out of their homes. When an EMT crew has com-
pleted a run, it will call the dispatcher who will either
send them on another run, direct them to return to their
assigned station, or give other instructions.
On July 8, 1981, Respondent discharged its EMT's,
James Lund and Gary Cleven. On the same date, it re-
lieved Bonnie Lund, James Lund's wife, of her duties as
a dispatcher. Theretofore, Bonnie Lund had worked as a
part-time dispatcher and a full-time emergency medical
technician. On July 14, the Union filed a charge in Case
30-CA-6609, alleging, inter alia, violations of Section
8(a)(3) and (1) of the Act with respect to Respondent's
July 8 actions against the Lunds and Cleven. Complaint
issued on August 18, and, thereafter, on February 16,
1982, the parties entered into a settlement agreement, dis-
posing of the issues raised by that case.
Some 2 months after the occurrences of July 8, 1981,
Respondent, on September 4, discharged Bonnie Lund.
In the instant case, the General Counsel contends that
Lund was fired in violation of Section 8(a)(4),' (3), and
(1) of the Act. Respondent asserts that the discharge was
for cause and was unrelated to Lund's union activities.
The complaint, as amended at the hearing, also alleges
that on September 11, 1981, by distribution to its em-
ployees, Respondent promulgated and thereafter main-
tained in effect unlawfully broad no-solicitation and no-
distribution rules, in violation of Section 8(a)(1) of the
Act. Respondent, at the hearing, admitted the promulga-
tion and maintenance of those rules and their illegality.
B. The Rules
As established by the pleadings, Respondent, on Sep-
tember 11, 1981, distributed to its employees, and there-
after maintained in effect, the following rules:
THE FOLLOWING ACTS OF CONDUCT ARE
PROHIBITED
25. Solicitation or distribution of any propo-
ganda, written or verbal, with the intention of un-
dermining the company, its employees, representa-
tives or customers; or any manner of operation; or
any other materials, actions or language which
prove to be deterimental to the best interests of the
company.
* * * * *
The preceding list of rules and regulations is not all-
inclusive. Any acts of misconduct will be subject to
appropriate disciplinary action which may include
termination of employment.
Respondent, as noted, concedes that the foregoing
rules are unlawful. Accordingly, I find and conclude that
by promulgating and maintaining in effect unlawfully
broad no-solicitation and no-distribution rules, Respond-
ent violated Section 8(a)(l) of the Act.
I The record is devoid of evidence in support of the 8(a)(4) allegations
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Bonnie Lund Discharge2
Bonnie Lund was hired by Respondent in September
1980 as a dispatcher. While continuing with her dispatch-
ing duties, she began, in November of that year, to work
as an "on-call" emergency medical technician. On Janu-
ary 24, 1981, she became a full-time EMT. Thereafter,
she worked as an EMT, a 24-hour shift, once every 3
days while also performing as a dispatcher for some 125
hours per month. As noted, on July 8, 1981, she was re-
lieved of her dispatching duties. On September 4 she was
discharged.
In late May, and early June, certain of Respondent's
employees began discussing the possibilities of organiza-
tion. During that period, Respondent's president, Darwin
Larsen, contacted employee Sean Klaetsch. According
to Klaetsch's uncontradicted testimony, Larsen asked
him to go to the other employees, find out what the
problems were and determine which employees would
meet with Larsen, and explain the problems to him.
Larsen also told the employee that there was a need for
a committee. Sometime thereafter, Klaetsch reported to
Larsen that the employees did not desire to have a com-
mittee.
On June 15, James and Bonnie Lund held an employee
meetings at their home, and an official of the Union was
invited to attend. Prior to the meeting, Bonnie Lund re-
ceived a telephone call from Yvonne Larsen, Respond-
ent's half owner and supervisor, who, according to
Lund's uncontradicted testimony, stated that she had
heard that there would be an employee meeting at the
Lund house that day. Larsen asked if that were true and
Lund stated that that was correct. Larsen asked for the
names of the employees who would be attending the
meeting and also inquired with respect to its purpose.
Lund responded, saying that the employees were upset
about their wages, hours, and working conditions. She
named the employees who would attend the meeting, in-
cluding Gary Cleven. Larsen stated that "We all know
Gary is pro-union," and Lund informed her that, in fact,
Cleven had invited a union official to the meeting. Lund
asked Larsen to permit two on-duty EMT's to attend the
meeting since they would be able to respond to ambu-
lance run calls from the Lund home. Larsen agreed.
The next day, June 16, Respondent's general manager,
Charles Fiast, a statutory supervisor, summoned Lund to
appear in his office. According to the uncontradicted tes-
timony of the employee, Fiast informed Lund that he
had heard that she had held an employee meeting on the
preceding day. Fiast stated that Yvonne Larsen was
quite upset about it. He told Lund to watch her step and
not to invite on-duty people again.
2 The factfindings contained in this section are based on a composite of
documentary and testimonial evidence introduced at the hearing. Where
necessary to do so. specific credibility resolutions have been set forth,
supra. In general, I have credited the testimony of Bonnie Lund who im-
pressed me as honest and forthright in her narration of events. On the
other hand, I have accorded little weight to the testimony of Russell
Barczak, Respondent's director of public relations, in view of his demean-
or as a witness, the evasive manner in which he testified and the material
inconsistencies between his testimony and that of other credible wit-
nesses.
3 Certain transcript pages incorrectly refer to the date of this meeting
as July 15.
On June 28, a meeting of Respondent's employees was
held at the offices of the Union. Employee Paul Baum-
bach testified that when he arrived at the meeting place
he saw Jonathan Kostreva, Respondent's personnel man-
ager and a statutory supervisor, sitting in a vehicle
parked adjacent to the Union's offices. Baumbach ap-
proached Kostreva and said that it was too bad that Kos-
treva had to do that sort of thing. Kostreva stated that
he had to "keep an eye on things." The following day,
June 29, Bonnie Lund testified, Kostreva thanked Lund
for not attending the meeting. She stated that she did not
go because she and her husband were working. Kostreva
said that he knew that the Lunds wanted to attend, and
he thanked her for not taking an ambulance to the meet-
ing. The foregoing testimony of Baumbach and Lund is
uncontradicted.
Bonnie Lund signed a union authorization card late in
June 1981. During the next 2 to 3 weeks, she solicited
the authorization card signatures of other employees, on
off-duty time, on the premises of station 1 and station 2.
On at least one occasion, Lund was observed while en-
gaged in this endeavor by Linda Weidemann, a conceded
statutory supervisor. All told, this employee obtained
some 10 to 15 signed cards. In this time period, Darwin
Larsen met with the employees, at station I and, accord-
ing to the uncontradicted testimony of the several em-
ployees who testified about this incident, stated that, if
union activities continued, he would close the Company
down. Larsen also informed the employees that he might
take certain privileges away from them.
As noted, several days later, on July 8, James Lund
and Gary Cleven were discharged. Also on that date,
Kostreva and Fiast met with Bonnie Lund and took
away her dispatching duties. They stated, Lund testified,
that she could not continue to have dual responsibilities,
that is, as an EMT and a dispatcher.
On July 22, 1981, at station 1, certain of Respondent's
officials, and their attorney, Barton Peck, met with the
employees. While the record contains various accounts
of this meeting, it is relatively clear that Peck discussed
his views concerning what a union can and cannot do
and stated that it cannot guarantee better wages and
working conditions. While assuring the employees that
they had a right to have a union, he pointed to another
company where, he stated, an employee committee meets
with top management officials and works out problems.
Peck asked the employees to discuss the matter among
themselves, and the management officials left the room.
The employees then decided to form a committee and,
having so chosen, asked the management representatives
to return. The latter were informed that Bonnie Lund
and three or four other employees would constitute an
employee committee, empowered to bargain with Re-
spondent. Peck and the others were also advised that, if,
over the course of several weeks, the committee proved
of no advantage to the employees, they would bring in a
union.
Some 2 weeks later, on August 5, according to Bonnie
Lund's uncontradicted testimony, she presented to Fiast
written requests that the Company recognize the em-
ployee committee as the representative of all Meda-Care
1210
MEDA-CARE AMBULANCE, INC.
employees for purposes of collective bargaining. One
document was signed by the committee members. A
second document listed the names of the committee
members and contained spaces for signatures by Re-
spondent's officials. At Lund's request, the latter docu-
ment was signed by Fiast, Kostreva, Yvonne Larsen, and
Director of Public Relations Russell Barczak, the mem-
bers of Respondent's bargaining team.
Later that day and, again, on August 18, the employee
committee met with Respondent's bargaining group for
purposes of negotiations. The principal topic of discus-
sion at both meetings was a set of committee proposals
which had been typed for distribution by Lund. There is
conflicting record evidence as to whether Lund, or em-
ployee Robert Edwards, acted as the principal spokes-
man for the committee.
On August 19, 1981, having just received a copy of
the complaint in Case 30-CA-6609, Peck, together with
other company officials, met with the Lunds and Cleven.
According to the credited testimony of Bonnie Lund,
Peck told the employees that he wanted to reinstate
them. He stated that the Company had acted badly, caus-
ing a great injustice to the employees. Peck told Bonnie
Lund that other employees had, and still do, act in both
the EMT role and the dispatcher role, and that there was
no reason why she could not continue to perform both
functions. Peck further stated that he would like the em-
ployees to withdraw the charges. The employees said
that they wanted some time to consider the matter.
Two days later, Bonnie Lund hand delivered to Fiast
a letter prepared by the Union's law firm, on its station-
ery, accepting reinstatement for her, but reserving the
right to pursue other remedies, including backpay. Iden-
tical letters were sent on behalf of James Lund and
Cleven. Thereafter, on September 2, James Lund was re-
instated, and on September 3 Cleven was reinstated. At
that time, Bonnie Lund was scheduled for work as a dis-
patcher, albeit, for fewer hours than she had worked
prior to July 8.
On August 31, September I and 2, at stations I and 2,
Bonnie Lund distributed copies of a letter from the com-
mittee to the employees, stating that the committee had
not achieved progress in bargaining and, therefore, rec-
ommended affiliation with the Union. The committee
asked for affirmative votes for that action on September
4, 7, 8, and 9.
According to Bonnie Lund's uncontradicted testimo-
ny, she met, on August 28, 1981, with Fiast and Kos-
treva, at which time an incident which had occurred on
July 14 was, for the first time, brought to her attention.
Kostreva handed a letter to Lund, dated August 6, from
Mount Carmel Nursing Home to Russell Barczak, signed
by Susan Davis, R.N. The letter complained of Lund's
actions of July 14, while on an ambulance run to that
nursing home, in particular, her argument with the nurs-
ing home staff concerning the proper oxygen therapy for
administration to the patient who was to be transported.
The letter concluded: "Mount Carmel would prefer that
this employee not enter our facility on an ambulance run
again." (Emphasis supplied.) Lund stated her version of
the matter and Fiast responded, stating that he did not
care if Lund was right or not. He told the employee to
apologize to Nurse Davis and to see to it that Respond-
ent received written acknowledgment of the apology
within 1 week.
Later that day, Fiast and Kostreva wrote, and deliv-
ered to Lund, a warning letter stating that if the Mount
Carmel Nursing Home matter was not rectified by Lund,
further action would be taken. On September 2, Lund re-
ceived another letter from Fiast and Kostreva, informing
her that ". . . unless you have convinced Mount Carmel
Nursing Home to allow you to continue serving it, we
will have no recourse but to terminate your employment
as of the end of normal business hours on September 4,
1981."
On September 2, Lund testified, she told Fiast that she
had gone to Mount Carmel, apologized to Nurse Davis,
and requested that a letter be sent to Respondent. On
September 4, Kostreva, Fiast, and Barczak met with
Lund and told her that they had received a letter from
Mount Carmel refusing to accept Lund's apology. Lund
asked to see the letter but Fiast refused to show it to her.
Fiast then discharged her. Lund asked if she was also
terminated from her dispatching duties. The three super-
visors looked at each other, then told Lund that she
"was terminated from everything." No reason, other
than the Mount Carmel matter, was assigned for the dis-
charge.
On September 11, Bonnie Lund received a termination
letter from Respondent, dated September 8, stating that
her conduct of July 14 "has jeopardized our contract
with Mount Carmel Nursing Home" and that "we have
been advised by Mount Carmel as of last Friday that de-
spite your apology, it would discontinue our relationship
in the event of any new infraction occurring in the trans-
ports of its patients if you were on duty."4 The termina-
tion letter also cited two new and additional reasons for
the discharge, namely, "information received by us from
one of our dispatchers indicating an unreasonable delay
on your part in servicing Mount Carmel on August 7,
1981," and a claimed inability promptly to service ac-
counts on September 2, 1981 "for the alleged reason: that
your ambulance was short on oil," a claim neither sup-
ported by documentation nor justifying "the inordinate
amount of time covered by the delay."
As noted, neither the matter of August 7, nor that of
September 2, had previously been raised with Lund.
With respect to August 7, Lund credibly testified that
there was not an unreasonable delay in responding to the
Mount Carmel call of that date by Lund and her partner,
Steve Johnson. Rather, she testified, their travel time
was within normal range for an emergency call, to that
facility from station 1, about 15 minutes.5 While the
4 Attached to the termination letter was, inter alia, a letter from Mount
Carmel Nursing Home, to Russell Barczak, dated September 4, 1981, stat-
ing that "in the event there is any further infractions in the transport of
our patients, we would be forced to use another ambulance service if the
above mentioned transporter is on duty."
! I have sccepted Lund's testimony concerning her estimated response
time, rather than the estimates of the dispatcher, Mary Jane Barczak,
Russell Barczak's wife, who, I found, a confused, unreliable, and biased
witness.
1211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record contains various testimonial estimates concerning
normal response time, Respondent did not introduce its
call card records in order to show the usual response
times by Lund and other EMTs. Moreover, it is undis-
puted that the customer, Mount Carmel, did not com-
plain about the response time. It is also significant that
Lund's partner, Johnson, was neither reprimanded nor
disciplined concerning the matter.
As to September 2,6 Lund and her partner of that day,
Wayne Sager, were based at station 2. Having completed
an assignment, they asked permission of the dispatcher,
Mary Jane Barczak, to proceed to station I in order to
prepare their lunches. This was in accord with normal
practice as there is a refrigerator and a microwave oven
at station 1, but no such facilities at station 2. Nonethe-
less, permission was denied. Thereafter, Lund and Sager
proceeded to another assignment. As a result of the con-
dition of the patient next transported, the sheets on the
ambulance cot became filled with germs and green bile
and could not be used for another patient. Also, Lund
and Sager noticed that the vehicle's oil pressure gauge
was flickering on and off. In addition, they had not yet
performed the daily routine maintenance check under the
hood of their vehicle. As such maintenance checks are
performed at station 1, and as the required oil and linens
are kept at station 1, and not at station 2, and as they
would pass station I on the way to station 2, Lund and
Sager decided to proceed to station I in order to change
the linen, disinfect the cot, add oil, and perform a main-
tenance check. Lund called the dispatcher and notified
her that they would stop at station 1 to take care of vehi-
cle maintenance problems. While there, Lund responded
to a call from Mary Jane Barczak and explained that the
vehicle was low on oil and needed a maintenance check
and a change of linen. Lund estimated that the required
procedures would take 10 minutes and, then, she and
Sager would proceed to station 2. Thereafter, Sager
changed the linen, disinfected the cot, and prepared the
lunches while Lund performed the maintenance proce-
dures. Noting that oil was only one half quart low, Lund
did not add oil but, rather, took two quarts of oil with
her for later use. Lund estimated her time at station 1 at
10 minutes. According to Barczak, the employees were
there for 20 minutes. It is undisputed that Lund and
Sager neglected to document their under-the-hood
checks, as required by company procedures. It is also un-
disputed that at no time while at station 1 were Lund
and Sager unavailable for assignment. Respondent did
not discipline Sager for his actions of September 2.
There is ample record evidence demonstrating that, in
proceeding to station I on September 2, for the purposes
for which they went there, Lund and Sager acted in ac-
cordance with Respondent's established policies. More-
over, on September 9, according to Sager's uncontradict-
ed testimony, he asked Fiast whether, on September 2,
he, Sager, and Lund had contravened any rules or poli-
cies of Respondent. Fiast replied, stating that the Compa-
ny understood that certain functions could only be per-
formed at station I and that, on September 2, Sager and
6 My findings concerning this incident are based on the testimony of
EMTs Lund and Sager. To the extent that Mary Jane Barczak's testimo-
ny conflicts with that of the employees, it is not credited. See fn. 5.
Lund had not broken any rules by stopping at station I
to perform vehicle maintenance and prepare meals.
The record evidence does not show either a breach of
duty by Lund on August 7, or on September 2, or a rea-
sonable belief by Respondent that there had been a
breach of duty. Lund's partners of those dates were not
reprimanded or disciplined. Indeed, these matters were
not raised with Lund prior to the discharge letter. In
these circumstances, the conclusion is warranted that the
matters of August 7 and September 2, utilized by Re-
spondent to support the discharge, were raised as a pre-
text.
Turning to the matter of July 14, the primary reason
assigned by Respondent to support the discharge, there is
credible record evidence that Respondent's officials
themselves orchestrated the complaints of Mount
Carmel, and that institution's threat to cease doing busi-
ness with the Company. This is revealed from an exami-
nation of the testimony of Mount Carmel's employee,
Susan Davis, RN, and that of Russell Barczak, concern-
ing their conversations and dealings with respect to this
matter. 7
Davis contacted Respondent concerning the incident
of July 14 on or about July 15. Barczak did not return
the call until July 27. Advised of the matter, Barczak
asked Davis to send a letter of complaint. On August 4,
he called Davis and said that the requested letter had not
yet been received. Davis agreed to send a letter. On
August 13 or 14, Barczak called Davis again, asking if he
could come to Mount Carmel and personally pick up the
letter. Davis agreed, and, on that day, Barczak obtained
the letter dated August 6. As noted, Respondent did not
speak to Lund about the matter until August 28.
Shortly before August 31, Barczak called Davis and
told her that Lund would be coming to Mount Carmel,
to apologize, and that Lund's job depended upon wheth-
er or not Davis accepted the apology. After Davis met
with Lund, on August 31, she, Davis, called Barczak and
told him that her decision was to accept the apology.
She added that anyone can make a mistake, but that
there could not be further infractions. Barczak objected,
telling Davis that Lund had already committed another
infraction at Mount Carmel, when she was late respond-
ing to a call. Davis asked if Barczak had proof of that
assertion and he said that he did, adding that other facili-
ties had also complained about Lund. At that point,
Davis changed her position and said that she did want
Lund back at Mount Carmel. Barczak said he could not
guarantee it unless Davis wrote a letter to that effect
and, in addition, specifically threatened to discontinue
use of Respondent's ambulance service if Lund were sent
to Mount Carmnel. Davis agreed to do so. This conver-
sation was the origin of Mount Carmel's second letter,
dated September 4, which was also picked up, in person,
by Russell Barczak.
Although Respondent first learned of the Mount
Carmel complaint on July 15, it did not, as noted, bring
I Conflicts in the testimony of Davis and Barczak have been resolved
in favor of Davis' version of events. Davis, a disinterested witness, testi-
fied in a clear, forthright, and believable manner. I have previously dis-
credited Barczak.
1212
MEDA-CARE AMBULANCE, INC.
the matter to Bonnie Lund's attention until August 28, at
the very time when the employees, with Lund in a lead-
ership role, were acting to abandon the employee com-
mittee and bring in the Union. The complaint letters
from Mount Carmel were solicited by Respondent.
Mount Carmel's threat, to cease doing business with the
Company, was solicited by Respondent. Having told
Lund that her job depended on Davis' acceptance of
Lund's apology, Respondent, through Barczak, proceed-
ed to convince Davis not to accept the apology, after
Davis had made a contrary decision. In order to induce
Davis to change her mind, and not accept the apology,
Barczak made false claims to Davis concerning Lund.8
In light of these facts, I think it patently clear that Re-
spondent orchestrated a series of actions, by itself and
Mount Carmel, to create a pretext to support the dis-
charge of Lund.
In view of Lund's extensive union activities, as de-
tailed, infra; Respondent's knowledge of same; the Com-
pany's manifest antiunion animus, as shown, inter alia, by
its threats to close the business if the employees brought
in a union; the timing of the discharge and the pretextual
reasons advanced to support it, I find and conclude that
Lund was discharged in reprisal for her union activities.
Respondent thus violated Section 8(aX3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
v. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practice conduct in violation of Section
8(aX 3) and (1) of the Act, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
CONCLUSIONS OF LAW
1. Respondent, Meda-Care Ambulance, Inc., is an em-
ployer engaged in commerce, and in operations affecting
commerce, within the meaning of Section 2(2), (6), and
(7) of the Act.
2. 1199W, National Union of Hospital and Health Care
Employees, RWDSU, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By promulgating and maintaining in effect unlawful-
ly broad no-solicitation and no-distribution rules, Re-
spondent has engaged in unfair labor practice conduct
within the meaning of Section 8(a)(l) of the Act.
8 Despite Davis' testimony that Barczak told her that there had been
complaints about Lund by other customers. Barczak, in his testimony, ad-
mitted that he was not aware of any such complaints.
4. By discharging Bonnie M. Lund, Respondent has
engaged in unfair labor practice conduct within the
meaning of Section 8(aX3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 9
The Respondent, Meda-Care Ambulance, Inc., Mil-
waukee, Wisconsin, its officers, agents, successors, and
assigns, shall:
(a) Promulgating, maintaining in effect, or enforcing
unlawfully broad no-solicitation and no-distribution rules.
(b) Discharging employees because they support a
union or otherwise engage in protected concerted activi-
ties.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Withdraw and abolish its unlawfully broad no-so-
licitation and no-distribution rules and notify its employ-
ees, in writing, of said withdrawal and abolition.
(b) Offer to Bonnie M. Lund immediate and full rein-
statement to her former positions or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to her seniority and other rights and privileges.
(c) Make Bonnie M. Lund whole for any loss of pay
she may have suffered by reason of Respondent's dis-
crimination against her by payment to her of a sum of
money equal to that which she normally would have
earned as wages, from the date of the discrimination to
the date of Respondent's offer of reinstatement, less net
earnings during such period, with backpay to be comput-
ed in the manner prescribed in F. W Woolworth Co., 90
NLRB 289 (1950), with interest as set forth in Florida
Steel Corp., 231 NLRB 651 (1977). See, generally, Isis
Plumbing Co., 138 NLRB 716 (1962).
(d) Expunge from its files any reference to the dis-
charge of Bonnie M. Lund on September 4, 1981, and
notify her in writing that this has been done and that evi-
dence of this unlawful discharge will not be used as a
basis for future personnel actions against her.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
9 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 find-
ings, 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 findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Post at its Milwaukee, Wisconsin, area, facilities
copies of the attached notice marked "Appendix."10
Copies of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by Re-
spondent representative, shall be posted by it immediate-
10 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
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