Medical Express Ambulance

National Labor Relations Board - Administrative Judge Opinions

Feb 9, 2007

13-CA-043531 (N.L.R.B. Feb. 9, 2007)

JD–09–07
Skokie, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MEDICAL EXPRESS AMBULANCE
SERVICE, INC.
and Case 13-CA-43531
INTERNATIONAL ASSOCIATION OF EMTS
AND PARAMEDICS, SEIU/NAGE
Brigid Barnicle, Esq., and Christina Lopez, Esq.,
of Chicago, IL, for the General Counsel.
Joshua D. Holleb, Esq., of Highland Park, IL,
for the Respondent-Employer.
DECISION
Statement of the Case
Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on
November 29, 2006, in Chicago, Illinois, pursuant to a Complaint and Notice of Hearing in the
subject case (complaint) issued on October 12, 2006, by the Regional Director for Region 13 of
the National Labor Relations Board (the Board). The underlying charge and amended charge
were filed in August 20061, by International Association of EMTS and Paramedics, SEIU/NAGE
(the Charging Party or Union) alleging that Medical Express Ambulance Service, Inc. (the
Respondent or Employer), has engaged in certain violations of Section 8(a)(1) of the National
Labor Relations Act (the Act). The Respondent filed a timely answer to the complaint denying
that it had committed any violations of the Act.
Issues
The complaint alleges that the Respondent engaged in independent violations of Section
8(a)(1) of the Act including interrogating employees about their union activities, soliciting
employees to report on the union activities of other employees, and promising benefits to
employees if they provided information on the union activities of other employees.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following

1 All dates are in 2006 unless otherwise indicated.
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Findings of Fact
I. Jurisdiction
The Respondent is a corporation engaged in the business of providing ambulance and
medicar services in Skokie, Illinois, where in the past twelve months it purchased and received
at its facility goods valued in excess of $50,000 from points located outside the State of Illinois.
The Respondent admits and I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
The Section 8(a)(1) Allegations
The Board has held that interrogation is not a per se violation of Section 8(a)(1) of the
Act. Rossmore House, 269 NLRB 1176, (1984), affd. sub nom. Hotel Employees Union Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In determining whether an interrogation is unlawful,
the Board examines whether, under all the circumstances the questioning reasonably tends to
interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Rossmore
House, 269 NLRB at 1177-1178. Emery Worldwide, 309 NLRB 185, 186 (1992). Under the
totality of circumstances approach, the Board examines factors such as whether the
interrogated employee is an open and active union supporter, the background of the
interrogation, the nature of the information sought, the identity of the questioner, and the place
and method of interrogation. Rossmore House, 269 NLRB at 1178 fn. 20; Bourne v. NLRB, 332
F.2d 47, 48 (2d Cir. 1964); Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985).
1. Allegations concerning Lauren Rubinson
a. Facts
The Union commenced an organizing campaign in late May and early June 2006. The
Respondent learned of the campaign around that time and on June 12, Respondent’s Chief
Executive Officer Lauren Rubinson, issued a memorandum to all employees urging them not to
select the Union as their collective bargaining representative (GC Exh. 2).
The General Counsel called two witnesses to testify about the allegations alleged in the
complaint. The Respondent also called two witnesses to respond to those allegations.
Employee Robert Castro, an Emergency Medical Technician (EMT), testified that he has
worked at the Respondent for approximately two years and reports directly to Human Resource
Manager Catherine Aitken, who in turn is supervised by Rubinson. Castro stated that while he
learned about the organizing campaign from co-workers in June 2006, he was not actively
engaged therein and was not an active or open supporter of the Union. Likewise, he indicated
that he did not distribute union campaign literature nor did he wear any Union insignia to work.

Castro testified that when his shift ended around 8:30 pm on or about July 13, and while
he was completing his required paper work in the Operations office, he engaged Operations
Supervisor Angie Graham in a conversation while she was sitting at her desk. According to
Castro, while he was talking with Graham, Rubinson pulled him off to the side and they engaged
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in a conversation in the hallway closer to the Operations office then the reception area. He was
certain, however, that Graham could not see them talking. During the conversation, Castro
asserts that Rubinson asked him “Do you know anything about the Union, have you heard
anything?” Castro replied no, I have only heard rumors and what not. Castro testified that
Rubinson then said, “If you know anything, let me know, if you do let me know, you won’t regret
it.”
On cross examination, Respondent’s counsel showed Castro four memoranda to help
refresh his recollection of when the conversation occurred with Rubinson. Castro, after
reviewing the documents, testified that the conversation with Rubinson took place on August 3,
one week before the date of the first memorandum which issued on August 10.
Rubinson testified that she had two conversations with Castro where the topic of the
Union was discussed. The first conversation took place in August 2006, when Castro went to
Rubinson’s office, and stated that he needed to talk about the Union because he wanted to
learn more about it. Rubinson informed Castro that the Respondent intended to have a number
of employee sessions about the Union and she would inform him when they took place. The
second conversation took place after August 2006, when Castro was in the billing office, and
Rubinson tapped him on the shoulder and informed him that a meeting about the Union would
be held shortly. After the meeting about the Union was held, Rubinson stated that Castro asked
her how he should vote and Rubinson told him that she could not tell him how to vote but rather
he should make his own decision.
Rubinson denied that she ever had a conversation with Castro outside the Operations
office and asserts that she never asked him the questions set forth above and alleged in the
complaint.
b. Discussion
I do not credit Castro’s testimony for the following reasons. First, Castro was very
unsettled as a witness who repeatedly changed his testimony concerning when the alleged
meeting occurred, and had great difficulty in remembering when the alleged conversation with
Rubinson took place. Indeed, he first testified that the conversation with Rubinson took place
during the week of July 10, then that it specifically occurred on July 13, and finally that the
conversation took place on August 3. Second, Rubinson credibly testified without contradiction,
that Castro did not work on July 10 (Monday), that on July 11 (Tuesday), she was not working in
the evening and left work at 6 pm, that on July 12 (Wednesday), Castro did not work and on
July 13 (Thursday), she was at a meeting in the morning and then left the office in the afternoon
to catch a flight to Indianapolis at 2:40 pm. Rubinson did not return to the Chicago area until
July 15 (Saturday), when she went directly to the office to pick up her automobile and left the
office around 6 pm (R Exh. 3). The Respondent introduced Castro’s time card (R Exh. 2) that
confirms Rubinson’s testimony including the fact that Castro worked until 10:19 pm on July 15
(Saturday). Thus, it was impossible for there paths to cross anytime during the week of July 10
when Castro testified on two separate occasions that the discussion with Rubinson in the
hallway took place around 8:30 pm. Lastly, Rubinson credibly testified that Graham could not
have been in the Operations office alone at anytime during the week of July 10, as she was an
Operations Supervisor in training and could not have physically been in the office without the
presence of an incumbent Operations Supervisor. In addition, Graham’s time card (R Exh. 3)
for that week shows that she was either in training off site or left the office on the days she was
there at 5 pm or earlier. Thus, she could not have been in the office at 8:30 pm when Castro
testified that he engaged Graham in a conversation before meeting with Rubinson.
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Likewise, I note that the General Counsel did not call either Castro or Graham as rebuttal
witnesses to contradict the unrebutted testimony of Rubinson. Certainly, calling Graham as a
witness would have substantially buttressed the General Counsel’s case.
For all of the above reasons, I find that the General Counsel did not establish that
Rubinson interrogated Castro, solicited him to report the union activities of other employees or
promised him benefits in return for information on the union activities of other employees on the
July 13 date alleged in the complaint or any date during the week of July 10. I also find that
Castro gave shifting answers throughout his testimony and was uncertain when the
conversation with Rubinson took place. Conversely, Rubinson was precise and certain of when
events took place and her testimony in addition to the documentary evidence introduced into the
record convinces me that her testimony was truthful. Accordingly, I recommend that the
allegations in the complaint regarding Rubinson be dismissed in there entirety.
2. Allegations concerning Catherine Aitken
a. Facts
Employee Vanessa Engquist has been employed as an EMT at the Respondent for
approximately 18 months and reports to Aitken. She became aware of the Union organizing
campaign in or around late May or early June 2006, but was not active in the drive or a known
Union supporter.
Engquist testified that on or about July 27, Aitken requested that she report to her office.
During the one on one conversation that lasted about five minutes, Engquist asserts that Aiken
asked her if “I knew who was involved in organizing the Union.” Engquist replied, “I do know
who is involved but I will not tell you because I wasn’t a rat.” Engquist testified that Aiken
offered a raise to $10.50 per hour if she would inform Aitken of which employees were involved
in organizing the Union. Engquist replied, “I deserve $10.50 per hour because of my experience
but if you want to fire me for not telling you who is involved that was fine.” Aitken said, “I will not
fire you because it is against the law.” Aitken then informed Engquist that she had three other
people on the payroll that she could get the information from. Engquist replied, “Thanks for
making me feel like a door mat.” Aitken said, “I thought you needed the money and that is why I
asked you for the information.” Engquist testified that she told her Mother about the
conversation with Aitken as she was upset about what was said.
In August 2006, Engquist was asked to attend a meeting with her Operations Supervisor
and Rubinson. No other employee was in the room. The Respondent gave assurances to
Engquist that no reprisals would be taken against her and asked if she would voluntarily
respond to several questions.2 Engquist agreed to answer some questions and told Rubinson
that no one in management ever asked her questions about the Union. Engquist testified that
she lied to Rubinson during the meeting as she was intimidated and felt coerced in the presence
of both Supervisors specifically Rubinson who controlled her job and livelihood.3

2 It appears that the Respondent gave lawful Johnnies Poultry Co., 146 NLRB 770 (1964),
safeguards to Enquist.
3 Rubinson held the positions of President and Chief Executive Officer in addition to holding
100% ownership in the Respondent.
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Aiken has been the Human Resource Manager at the Respondent for seven years and
personally hired Engquist.
Aiken testified that she had two conversations with Engquist when the subject of the
Union was discussed. The first conversation occurred sometime between August 25 and early
September 2006 in her office. According to Aitken, Engquist was just returning to work after
being on light duty due to suffering an earlier injury and asked Aitken whether she had a minute
to talk. Engquist informed Aiken that she was concerned that her co-worker Jeff Schultz had
requested that she prepare a statement about her injury during the time period that they were
working together. Engquist explained to Aitken that she feared the information would get out
because Schultz was involved in trying to organize the Union.
The second conversation took place on November 1 in Aitken’s office. Aitken testified
that Engquist informed her that she received a strange telephone call on her voice mail and it
upset her. After some additional discussion, Engquist told Aitken that the caller left a message
that Rubinson was paying people to change sides with the Union. Aitken disabused Engquist of
this assertion and asked her if she wanted Aitken to get involved. Engquist told Aitken that she
could handle the matter and said she called the person back and threatened them. Aitken
suggested to Engquist that was not the proper way to handle the matter.
Aitken categorically denied that she engaged in a conversation with Engquist on or about
July 27, wherein she interrogated her about the union activities of other employees, solicited her
to report on the union activities of other employees or offered her a raise if she would provide
information on which employees were involved in the union organizing campaign.

b. Discussion
There is no dispute that Aiken was aware that the Union commenced organizing at the
Respondent in June 2006. Indeed, Rubinson issued a memorandum to all employees dated
June 12 to this effect. According to Engquist, the conversation with Aitken occurred around July
27, several days before the Union filed its representation petition on August 1 (GC Exh. 3).
The above recitation reflects a complete credibility dispute between Aitken and Engquist.
Thus, it is necessary to resolve this difference based on my observation of the demeanor of
each witness during the course of the proceeding.
I was quite impressed with Engquist’s demeanor and her total recall of the facts. Her
testimony had a ring of truth to it. I also note that after the completion of Engquist’s testimony
on direct examination, counsel for the Respondent requested and was provided her pre-trial
affidavit that was executed on August 14, a period of time shortly after the conversation
occurred on or about July 27. Significantly, that affidavit was not introduced into evidence, as
the Respondent did with Castro’s pre-trial statement to establish any inconsistent statements.
Thus, I conclude that Engquist’s record testimony was fully consistent with her pre-trial affidavit
given to the Board agent. Moreover, it convinces me that Engquist’s statement that she told her
Mother about the conversation shortly after it occurred due to her being upset adds credulity to
her testimony.
In regard to Aitken’s testimony concerning the two conversations that she had with
Engquist, much of it was rambling and disjointed. I conclude that Aitken, as Human Resource
Manager, was interested in learning who was involved in the union organizing and selected
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employees who did not appear to be active in the campaign in order to obtain information on
which employees were the leading union adherents.
Likewise, I discount the Respondent’s attempt to discredit Engquist’s testimony when it
showed that Engquist lied about her earlier conversation with Aitken when she was called to a
meeting with Rubinson and her Operations Supervisor in August 2006, and denied that she
previously talked with any management official about the Union. Engquist credibly testified that
she was scared and intimidated to be confronted by the owner and another manager without the
presence of any other employee or someone else to assist her. I am of the opinion that
Engquist was placed between a rock and a hard place when asked a number of questions about
the Union in the presence of Rubinson who controlled her livelihood and job security. Thus, I
find in these circumstances, that it was natural for Engquist to deny that she had any earlier
conversations with any management official about the Union.
Accordingly, and particularly noting Engquist’s firm conviction on the witness stand in
answering all question in a direct and forthright manner, I find that Aitken did engage in the
conduct alleged in the complaint. Therefore, I recommend that the Board find that the
Respondent engaged in conduct violative of Section 8(a)(1) of the Act. See Beverly Health and
Rehabilitation Services, Inc. 339 NLRB 1243, 1249, (2003), Hialeah Hospital, 343 NLRB 391,
392 (2004).
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when it interrogated an employee
about the union activities of other employees, solicited an employee to report on the
union activities of other employees and promised benefits to an employee if she
provided information about the union activities of other employees.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4
ORDER
The Respondent, Medical Express Ambulance Service, Inc. Skokie, Illinois, its officers,
agents, successors, and assigns, shall

4 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.
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1. Cease and desist from
(a) Interrogating an employee about the union activities of other employees.
(b) Soliciting an employee to report on the union activities of other employees.
(c) Promising benefits to an employee in return for information about the union
activities of other employees.
(d) In any other manner interfering with, restraining, or coercing employees in the
exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facility in Skokie,
Illinois, copies of the attached notice marked “Appendix.”5 Copies of the
notice, on forms provided by the Regional Director for Region 13, after being
signed by the Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent
at any time since July 27, 2006.
(b) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. February 9, 2007
____________________
Bruce D. Rosenstein
Administrative Law Judge

5 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the 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.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT interrogate our employees about their union activities.
WE WILL NOT ask our employees to report on the union activities of other employees.
WE WILL NOT promise benefits to employees in return for information about the union activities
of other employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the
exercise of their Section 7 rights protected by the Act.
Medical Express Ambulance Service, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
209 South LaSalle Street, 9th Floor
Chicago, Illinois 60604
Hours: 8:30 a.m. to 5 p.m.
312-353-7570.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 312-353-7170.
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