Parr Lance Ambulance Service

National Labor Relations Board - Board Decisions

Jul 26, 1982

262 N.L.R.B. 1284 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parr Lance Ambulance Service and Timothy Smith.
Case 25-CA-13418
July 26, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On February 11, 1982, Administrative Law
Judge Wallace H. Nations issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision.
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 at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Parr Lance Ambulance Service, Indianapolis, Indi-
ana, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
I The Administrative Law Judge found that ambulance driver Smith
and Emergency Medical Technician (EMT) Stewart were engaged in
protected concerted activity when they refused to operate an inadequate-
ly equipped ambulance. In agreeing with the Administrative Law Judge's
finding, we note that the Indiana regulations governing the certification
of EMTs (836 IAC I-5-l(d)(2) (1978)) provide that an EMT's certifica-
tion may be revoked for "failure to perform or failure to perform compe-
tently an indicated procedure for which training has been received in the
basic emergency medical technician training course .... " Therefore, an
EMT has a legitimate concern in having available all equipment neces-
sary to perform an indicated procedure for which he or she has been
trained. In addition, the record contains uncontradicted testimony that
part of the ambulance driver's duties include assisting the EMT in utiliz-
ing emergency equipment. Accordingly, and for the additional reasons
given by the Administrative Law Judge, we find that the adequacy of an
ambulance's emergency equipment constitutes a working condition for
both the EMT and the ambulance driver. Further, since we agree with
the Administrative Law Judge's finding that both Smith and Stewart re-
fused to operate the ambulance, we find it unnecessary to reach the Ad-
ministrative Law Judge's discussion of whether such a refusal would
have constituted concerted activity if it had been engaged in by only one
employee.
2 We find that it will effectuate the purposes of the Act to require Re-
spondent to expunge from its personnel files, or other records, any refer-
ence to the discharge of Timothy Smith on April 4, 1981, and notify him
in writing that this has been done and that evidence of this unlawful dis-
charge will not be used as a basis for future personnel actions against
him.
262 NLRB No. 161
1. Insert the following as paragraph 2(b), and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its personnel files, or other
records, any reference to the discharge of Timothy
Smith on April 4, 1981, and notify him 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 him."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amend-
ed, gives you, as employees certain rights, in-
cluding the rights:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
Accordingly, we give you these assurances:
WE WILL NOT discharge or otherwise dis-
criminate against our employees in regard to
their hire, tenure, or any term or condition of
employment because they engage in concerted
activities protected by Section 7 of the Nation-
al Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL offer Timothy Smith immediate
and full reinstatement to his former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to his seniority or other rights and privi-
leges, and WE WILL make him whole for any
losses suffered by reason of our unlawful con-
duct, with interest.
WE WILL expunge from our personnel files,
or other records, any reference to the dis-
charge of Timothy Smith on April 4, 1981,
and notify him in writing that this has been
done and that evidence of this unlawful dis-
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PARR LANCE AMBULANCE SERVICE
charge will not be used as a basis for future
personnel actions against him.
PARR LANCE AMBULANCE SERVICE
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge:
Upon a charge filed by Timothy Smith, on April 10,
1981, a complaint issued on May 22, 1981, alleging that
Parr Lance Ambulance Service (herein called Respond-
ent), has violated the Act by discharging Smith for en-
gaging in protected activity. A hearing was held in In-
dianapolis, Indiana, on November 19 and December 10,
1981. Although Respondent initially contested the
Board's jurisdiction in this proceeding, it stipulated to ju-
risdiction at the December 10, 1981, hearing. Briefs were
filed by General Counsel and Respondent.
Upon the entire record in this case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent is engaged in the business of providing
and performing ambulance services with its principal
place of business in Indianapolis, Indiana. As noted, Re-
spondent has formally stipulated that it is an employer
within the meaning of the Act and that it is engaged in
the requisite amount of interstate commerce.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts Relating to Smith's Alleged Discharge
In Respondent's ambulance division, there are approxi-
mately 28 employees who work on three shifts covering
a 24-hour period. Assigned to each emergency vehicle is
one driver and one emergency medical technician
(EMT). Both Respondent, as an ambulance provider, and
EMT's assigned to its registered ambulances, must be
certified by the State of Indiana's Emergency Medical
Services Commission (EMSC). State law requires no spe-
cial certification of ambulance drivers by the EMSC.
Lloyd Shonkwiler is president of Respondent and Mi-
chael Shonkwiler has been its manager since January 1,
1981. Bobby Lee Jones is the supervisor of Respondent's
ambulance division having taken that position on January
1, 1981.
As pertinent, in early 1981, the Charging Party, Timo-
thy Smith, was employed as an ambulance driver by the
Respondent. In March 1981, Smith and an EMT em-
ployed by Respondent, Tine Martin, had a meeting with
M. Shonkwiler and Jones. The meeting was called pri-
marily to discuss the possible discipline of Smith over a
dispute he had with a company dispatcher. During the
course of this meeting, both Smith and Martin com-
plained that certain safety equipment required by state
law to be carried on the Company's ambulances were
missing. During this meeting, either Jones or Shonkwiler
informed Smith and Martin that they were the only em-
ployees who complained about the missing equipment.
On April 4, 1981, Smith reported to work as a driver
and assisted a new EMT, Nancy Stewart, in checking
their assigned ambulance for equipment that was re-
quired to be carried on the ambulance. Stewart testified
that she was a new employee and not as familiar as
Smith with respect to what equipment was required.
With Stewart's help, Smith prepared a list of equipment
that was missing and presented it to the dispatcher, in-
forming the dispatcher that he would not take out the
ambulance with equipment missing. Smith was unsuc-
cessful in obtaining permission of the dispatcher to use
another ambulance and the dispatcher agreed to call Su-
pervisor Jones for discussion of the problem. Smith and
Stewart then accepted a dispatch for a nonemergency
run. After completion of this run, they were dispatched
on another run involving the transport of a dead body.
After completion of this run, they were assigned a third
run where they were within a few blocks of the Compa-
ny's headquarters.
Smith then advised the dispatcher that he was refusing
the run and returning to headquarters. Upon Smith's ar-
rival at headquarters he was informed by the dispatcher
that Jones had been there to meet with him but had left.
M. Shonkwiler came to the dispatch office and inquired
whether Smith and Stewart were refusing to take the
ambulance out because of the equipment missing. Both
Smith and Stewart said that this was the case. Stewart
testified that she told Shonkwiler that she agreed with
Smith. Shonkwiler then informed both employees that if
they felt that way they should clock out. Shonkwiler
then returned to his office. Smith, at this point, clocked
out and left. Stewart stayed on the premises as the job
she held with Respondent was her first job and she was
worried about losing it.
After a short passage of time, Stewart told the dis-
patcher on duty that she did not want to clock out as she
was afraid of losing her job and what her family would
say. The dispatcher informed Stewart that she would
find Stewart a new partner and dispatch her on more
runs that day.
Later that day, Smith and Martin went to the offices
of the EMSC and complained to its director about the
equipment missing from Respondent's ambulances. An-
other employee of Respondent, Dee Dee Bowman, was
at the EMSC office to secure her certification as an
EMT. She was asked by the director about the missing
equipment and acknowledged that equipment was miss-
ing from Respondent's ambulances.
The following day Smith and Stewart arrived at the
Respondent's premises separately around 6 a.m. for
work. Smith requested from the dispatcher his timecard
and was told that he had been taken off the schedule by
Shonkwiler. Stewart was given a timecard and worked
that day.
B. Analysis and Conclusions
To this point, there is no significant credibility issue in
this case. Thereafter, the testimony of various witnesses
diverges greatly over subsequent events and conversa-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions. The subject matter of this divergent testimony is
whether Smith was actually discharged or whether he
voluntarily quit his employment. Respondent has chosen
on brief not to urge its position taken at the hearing that
Smith quit and was not terminated. I do not believe it is
necessary to determine what testimony is credible with
respect to this issue. All undisputed facts point to the
conclusion that Smith was discharged by Respondent.
From the time Smith clocked out on April 4, 1981, he
was never thereafter allowed to work for Respondent.
His action in reporting for work on the following day is
wholly inconsistent with any theory that he voluntarily
resigned from the Company. Sometime later, Smith filed
for unemployment compensation benefits and Respond-
ent, in response to Smith's filing, did not take the posi-
tion that he had voluntarily left employment. Because
Smith was refused work on April 5, 1981, as well as on
days subsequent, and because of the position taken by
Respondent with respect to tht unemployment compen-
sation filing, I find that Smith was discharged and the
discharge was effective from the time M. Shonkwiler
told Stewart and Smith to clock out on April 4, 1981.
The testimony of Stewart makes clear that she believed
that had she followed Smith in leaving Respondent's
office, she would have been discharged.
The General Counsel urges that the effective date of
Smith's termination was April 5, 1981, the time in which
Smith was refused his timecard. In urging that this was
the point in time when Smith was discharged, the Gener-
al Counsel contends that Smith's visit to the EMSC on
the afternoon of April 4, 1981, also formed part of the
basis for Respondent's decision t9 discharge him. I
cannot find that this visit did, in fact, enter into Re-
spondent's decision. There is no proof that Respondent
had knowledge of the visit until some time after Sunday
morning, April 5. 1981. When departing Respondent's
premises on April 4, 1981, Smith commented to Stewart
that he was going to complain to a local TV station and
visit the EMSC in furtherance of his protest over the
missing equipment. There is a possibility that this com-
ment was overheard by one of Respondent's dispatchers,
but there is no clear proof that this was the case. Based
on all the facts of record, I find that the decision to dis-
charge Smith was predicated on his refusal to take an-
other run in the ambulance to which he was assigned on
April 4, 1981.
Having determined that the effective date of discharge
of Smith was April 4, 1981, the following legal issues are
presented for determination. First, was the activity en-
gaged in by Smith and Stewart of a concerted nature?
Second, if so, was such activity protected under the Act?
If protected, when engaged in by both Smith and Stew-
art, did it subsequently lose its protection by Stewart's
change of mind and return to work'? Ultimately, I find
that each of these issues must be resolved in favor of the
General Counsel.
At the time of the confrontation with M. Shonkwiler
on April 4, 1981, there is no doubt that Stewart and
Smith were jointly presenting a complaint about equip-
ment missing on the ambulance to which they were as-
signed. That their concern was shared by other employ-
ees is reflected by Martin's earlier complaint with Smith
about the same subject and by Martin's visit with Smith
to the EMSC to formally complain about the missing
equipment to that state agency. The testimony of EMT
Bowman indicates that, though she was not taking any
direct action about the situation, she, too, was concerned
about the equipment missing from Respondent's ambu-
lances. Therefore, as Smith and Stewart, on April 4,
1981, were acting in concert and were expressing a con-
cern that was shared by other similarly situated employ-
ees, I find that at its inception the action taken was defi-
nitely concerted activity within the meaning of the Act.
To determine whether or not this activity was protect-
ed, it must be determined whether it relates to the em-
ployees' working conditions. As shown by the evidence,
the primary motive for making the complaint about the
missing equipment was the team's ability to provide pa-
tient care. On brief, Respondent asserts that because of
Smith's history of tardiness and by the act of refusing to
take a run, Smith did not possess a genuine concern
about the care of the patients carried in his ambulance. I
disagree. Smith's testimony at the hearing about his con-
cern for patients, his history of employment in the emer-
gency care field, and his concern over equipment missing
from Respondent's ambulances are only consistent with a
desire to provide adequate patient care. A closer ques-
tion is whether concern over the quality of patient care
in and of itself can form the basis for protected activity.
In Reading Hospital and Medical Center, 226 NLRB 611
(1976), enfd. 562 F.2d 42 (3d Cir. 1977), the Board held
protected a threat by an operating room nurse to com-
plain to a newspaper that the proposed elimination of a
surgical residency might require performance of surgical
duties beyond her competence. Citing Reading, with ap-
proval, the Second Circuit Court of Appeals in Misericor-
dia Hospital Medical Center v. N.L.R.B., 623 F.2d 808
(1980), stated, "The record supports the Board's finding
that the report raised issues that related not only to pa-
tient welfare but the working conditions of the employ-
ees; indeed, in the health care field such issues often
appear to be inextricably entwined." In the case under
review, the Board held a report prepared by hospital em-
ployees cataloging alleged inadequacies in the operation
of the hospital to be protected. Although the Board
found that the report had a relationship to the working
conditions of the employees in the hospital, the thrust of
the report was almost entirely to complain about hospital
conditions which affected patient care. Complaints in the
report about sanitary conditions at the hospital were in-
terpreted by the Board to be similar to complaints about
safety conditions in the working place and complaints
about staff shortages directly related to employee work-
ing conditions.
In the instant case, there is a relationship between the
complaint involved and the working conditions of the
Respondent's employees at least as strong as that found
in Reading, supra. The director of the EMSC testified
that his agency had the authority to conduct hearings
and attempt to revoke licenses issued both to ambulance
providers and individual emergency EMTs. Thus, the
legal possibility exists that Stewart and other EMTs em-
ployed by Respondent could be subject to a license revo-
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PARR LANCE AMBULANCE SERVICE
cation proceeding for operating ambulances not in con-
formance with state equipment requirements. Though
Smith, as driver of the ambulance, is not subject to this
risk, it is possible that both he and the EMT could be the
subject of a law suit if they, acting as a team, failed to
provide adequate emergency medical care to a patient
because they lacked the state required equipment to do
so.
In Bronco Wine Company, 256 NLRB 13 (1981), the
Board found protected a maintenance man's expressed
concern over the failure of management to provide parts
and supplies to properly perform his duties. Certainly,
concern over receiving parts and supplies by a mainte-
nance man has no more connection with his working
conditions than does the expressed concern over missing
required medical equipment from an ambulance operat-
ing under the supervision of an EMT licensed by the
State to provide a given level of emergency medical
care. The lack of parts and supplies obviously makes it
difficult for a maintenance person to perform his duties
just as lack of emergency medical equipment makes it
difficult to provide adequate emergency care. Respond-
ent urges that because it is not Indianapolis' primary
emergency care ambulance provider and because the
bulk of its runs involve nonemergency situations, the
concern of Smith and Stewart over missing equipment is
unreasonable as such equipment is rarely actually needed.
This position seems valid only if the Company were
never called on to provide emergency ambulance serv-
ice, which is not the case. Accordingly, for the reasons
set forth above, I find the concerted action taken by
Smith and Stewart on April 4, 1981, was protected by
the Act.
I cannot find that Smith lost the Act's protection be-
cause some time after he had walked off the job in pro-
test over the missing equipment Stewart had a change of
mind and returned to work. The walkout was definitely
concerted at the time the complaint was made to M.
Shonkwiler on April 4, 1981, and the parties were still
acting in concert at the time Smith was told to clock out,
leave, and did so. Stewart's fear over losing her job and
subsequent request to return to work on that date cannot
alter the fact of what had already happened. Moreover,
the Board has held that walkouts by single employees
can constitute protected concerted activity. Steere-Diary,
Inc., 237 NLRB 219 (1978). Also, the Board has held
that individual action can be considered concerted where
the activity relates to conditions of employment that are
matters of mutual concern to all affected employees. Air
Surrey Corporation, 229 NLRB 1064 (1977). As noted
above, several of Respondent's employees shared con-
cern over medical equipment missing from the Compa-
ny's ambulances. Thus, for the reasons stated, and rely-
ing on the cases cited, I find that Smith's activity was
protected at the time it was taken and that it did not lose
its protection by virtue of Stewart's return to work.
No reason other than Smith's refusal to operate the
ambulance to which he was assigned on April 4, 1981,
has been advanced by Respondent for his termination.
Thus, it is clear that his protected actions on April 4,
1981, did constitute the reason for his termination.
Havinrg found that such activity constituted concerted
protected activity within the meaning of the Act, I find
that Respondent has engaged in, and is engaging in,
unfair labor practices in violation of Section 8(aXl) of
the Act.
III. THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(aXl) of
the Act, it will be recommended that Respondent be re-
quired to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the policies of
the Act.
It also having been found that Respondent discharged
Timothy Smith for engaging in concerted protected ac-
tivities, Respondent shall be required to offer him imme-
diate and full reinstatement to his former position or, if
that position no longer exits, to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, and shall make him whole for any
loss he may have suffered by reason of the discrimination
against him. All backpay due under the terms of this
Order shall be computed, with interest, in the manner
described in F. W Woolworth Company, 90 NLRB 289
(1960), and Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
On the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Parr Lance Ambulance Service is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. By discharging Timothy Smith because of his pro-
tected concerted activities, Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Sections 8(a)I) and 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'
The Respondent, Parr Lance Ambulance Service, In-
dianapolis, Indiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging its employees because they engage in
activities protected by Section 7 of the National Labor
Relations Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
L 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.
1287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer Timothy Smith immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
to make him whole for any loss he may have suffered by
reason of the unlawful conduct involved herein, in the
manner set forth in the section of this decision entitled
"The Remedy."
(b) Post at its place of business in Indianapolis, Indi-
ana, copies of the attached notice marked, "Appendix."2
' 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."
Copies of said notice, on forms provided by the Regional
Director for Region 25, after having been duly signed by
Respondent's representative, shall be posted by Respond-
ent 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
to ensure that said notices are not altered, defaced, or
covered by any other material.
(c) Preserve and, upon request, make available to the
Board or its agents all records necessary to analyze the
amount due in the effectuation of this remedial Order.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
1288