Piner's NAPA Ambulance Service

National Labor Relations Board - Administrative Judge Opinions

Dec 20, 2006

20-CA-032875 (N.L.R.B. Dec. 20, 2006)

JD(SF)-65–06
Napa, Calif.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BRANCH OFFICE
SAN FRANCISCO, CALIFORNIA
NAPA AMBULANCE SERVICE, INC., d/b/a PINER’S
NAPA AMBULANCE SERVICE
and
REBECCA ROSECRANS, An Individual
Case 20–CA–32875
Christy J. Kwon and Cecily A. Vix, San Francisco, Calif., for
the General Counsel
Patrick W. Jordan (with Nanette Joslyn on brief), San Rafael,
California, for Respondent.
DECISION
Statement of the Case
JAMES M. KENNEDY, Administrative Law Judge: This case was tried in San
Francisco, California on August 14-18, 2006, based upon a third consolidated complaint issued
May 31, 2006 by the Regional Director for Region 20. The original unfair labor practice charge
was filed by Rebecca Rosecrans, an individual, on February 2, 2006 and amended on
February 22. The case had been consolidated with Cases 20-CA-32497, 32693 and 32965, all
filed by the National Emergency Medical Services Association (the Union). On August 18,
2006, the Union withdrew its charges and asked that the corresponding portions of the
complaint be dismissed as the parties had signed a collective bargaining contract. I granted
that motion. The remainder of the complaint, based on Rosecrans’s charge, alleges that Napa
Ambulance Service, Inc., d/b/a Piner’s Napa Ambulance Service (Respondent) violated §8(a)(1)
and (3) of the National Labor Relations Act. 1 Respondent’s answer denies the pertinent
allegations remaining in the complaint.
Issues
The principal issues are whether Respondent disciplined and subsequently discharged
Rosecrans because she was a Union activist. Warnings were issued to her on April 4, 2005, 2
August 22 and August 30. She was also discharged on August 30. Respondent asserts that
the warnings and the discharge were for good cause, i.e., that they were connected to
Rosecrans’s behavior as an employee and had nothing to do with the fact that she was a known
union activist.

1 The case has therefore been recaptioned. Nothing in the settlement precludes me from
utilizing evidence adduced in the course of the hearing even if it was advanced in support or in
defense of the other cases, so long as it has relevance to the extant case.
2 All dates are 2005 unless otherwise indicated.
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The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, to orally argue and to file briefs. The General Counsel
and Respondent have both filed briefs which have been carefully considered. Based upon the
entire record of the case, as well as my observation of the witnesses and their demeanor, I
make the following:
Findings of Fact
I. Jurisdiction
According to the pleadings, Respondent is a California corporation having its
headquarters in the City of Napa from which it operates an emergency ambulance and
paramedic service in several Napa County communities. It admits that during the calendar year
2004, in the course and conduct of its business, it provided services valued in excess of
$50,000 to the United States Government, to the State of California and to private businesses,
which in turn meet one of the Board’s standards for the assertion of jurisdiction on a direct
basis. During the same time period its gross volume of business exceeded $500,000.
Accordingly, it admits it is an employer engaged in commerce within the meaning of §2(2), (6)
and (7) of the Act. It further admits the Union is a labor organization within the meaning of §2(5)
of the Act.
II. The Alleged Unfair Labor Practices
Some Preliminary Matters
Given the withdrawal of the Union’s charges and the dismissal of its portion of the
complaint, discussion of the Rosecrans matter necessarily reaches back into the organizing
drive and shifts those events into background, even if not directly connected to her. 3 These
include: Rosecrans’s participation in the organizing; pre-election warnings to other union
activists; an April warning to Rosecrans arising from complaints by co-workers about her; a
similar warning in August; some issues arising from a July memo prohibiting Rosecrans and
fellow dispatchers from turning off the telephone tape recorders; as well as the events of
August 20 which all arose from Rosecrans’s inability that day to come to work, the event which
triggered her discharge, and an additional issue concerning turning off the tape recorders.
Background; Pre-Election Matters
The Union, the National Emergency Medical Services Association (NEMSA), began its
organizing in early 2005. It filed its NLRB election petition on February 28. The election was
conducted on April 15; the Union won, and on May 2 was certified as the exclusive collective
bargaining representative of Respondent’s ambulance drivers and dispatchers. Although the

3 Respondent filed a motion to strike portions of the General Counsel’s brief as they
adverted to matters raised by the Union’s charges. As I am considering those only for purposes
of background, the motion is denied. Nevertheless, I am not considering fact patterns
previously alleged to be §8(a)(5) violations, such as breaches of unilaterally imposed rules and
subsequent discipline to be evidence of union animus as might support a §8(a)(3) violation.
While those changes may have violated the Act had they been litigated, they are based on the
breach of a legally imposed duty (i.e., the §8(d) obligation to bargain in good faith). The failure
to meet such a requirement is not the same as the deliberate interference with an individual
employee’s §7 rights such that it can be used as an element of §8(a)(3). In other words, it
cannot be used as the sort of animus which can support a discharge independent of §8(a)(5).
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administrative employees worked in close physical proximity to the dispatchers in Respondent’s
administrative/accounting office, the administrative employees were excluded from the
voting/bargaining unit and were not a part of the organizing.
The administrative office is located on the same grounds as several other Piner
businesses in Napa. These include a nursing home, a retirement residence, a health care
supply center, a welding shop and a bicycle shop. The administrative office, sometimes
referred to as the accounting office, is a small structure, a closed-in carport, approximately 17’ x
17,’ adjacent to the nursing home. That small space is further subdivided to house the dispatch
office. Dispatch is in a corner behind a two-wall partition which does not extend to the ceiling;
its door is always open. The non-dispatch portion of the floor is so small that office staff
schedules must be staggered so the desks can be shared.
There were four full time dispatchers. Each worked a 12-hour shift. Day dispatchers
worked from 7 a.m. to 7 p.m. The night dispatchers worked from 7 p.m. to 7 a.m. Rosecrans,
for example, worked the daytime hours on one weekend day and Mondays, Tuesdays and
alternate Wednesdays. The other day shift dispatcher was Donavan Balsley who worked
Thursdays, Fridays, one weekend day and the other alternate Wednesdays. The night
dispatchers worked similar schedules; they were Hope Pruett and Andrea Gurule. The
weekends seemed to vary a little more as relief dispatchers would often take one of those four
shifts. A 48-hour work week was common.
Balsley had become lead dispatcher in 2004. As the lead dispatcher, he was responsible
for putting the schedule together for each month, in charge of their training and served as the
point man for questions, including equipment repair. There is a small dispute, unnecessary to
resolve, concerning whether he was also the person the on-duty dispatcher should notify in the
event the arriving shift dispatcher called to advise he or she couldn’t get to work for some
reason. There was also a standing procedure whereby open shifts were to be offered to off-
duty dispatchers on a seniority basis. 4
The office manager and company controller was, and is, Geri Bise. She has worked for
the Piner’s companies for almost 20 years. In that capacity she was Balsley’s (and the
dispatchers’) direct supervisor, though she did not carry out that responsibility in a hands-on
manner. In large part the dispatchers required little oversight. They were a responsible group.
Bise came to work each day at 4 a.m. and worked till about 2 p.m. Others who worked
in the accounting office were: Cheri Blaylock, the bookkeeper; Ed Herrera, the bill collector;
Sherine Purdey, an administrative assistant; and Melanie Gomez, the ambulance billing clerk.
Gomez came to work in the afternoon and worked into the evening; she was, as Purdey
observed, a part-time worker. Herrera commonly served as a relief dispatcher. In August,
Balsley began training Gomez and Meleah Mahoney to become relief dispatchers. 5

4 Balsely is alleged in the complaint to be a supervisor within the meaning of §2(11) of the
Act. As will be seen, it is unnecessary to making any finding about that. His duties, as
described do not require a finding that he is a supervisor. See, Dean & Deluca New York, Inc.,
338 NLRB 1046, 1048 n. 15, (2003) citing Jordan Marsh Stores Corp., 317 NLRB 460, 467
(1995) (individual who directed, assigned, and made up the work schedules of employees was
found not to be statutory supervisor).
5 Gina Peterson (from the ambulance side) and Gloria DeLuna (whose regular job is not
clear from the record) also served as relief dispatchers. As with DeLuna, Mahoney’s regular job
cannot be determined from the record. Purdey, too, said she had trained as a dispatcher.
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Finally, the general manager until midsummer was Chris Piper, a long-term executive.
He resigned abruptly and was replaced in July by Jeremy Piner, the owner’s son. Previously
the manager of the bicycle shop, Jeremy became both Respondent’s acting general manager
and its operations manager. Bise and the other department heads began reporting to him at
that point. He still held both jobs when he testified. The corporate president is Gary Piner.
Rebecca Rosecrans
Rebecca Rosecrans has been a dispatcher for Respondent since 2001. There is no
dispute that until April 2005 she had been an excellent employee, even being named employee
of the year in 2002. Geri Bise held her in generally high esteem. In 2004, the first crack in that
reputation occurred when Rosecrans wrongly accused her friend Pruett of lying about the
reason Pruett had given for an absence (car repair issues v. home refinance meeting). When
Bise issued Pruett a warning about it, she learned that someone had likely misspoken. She
didn’t revoke the warning to Pruett, but was nevertheless left to wonder whether Rosecrans had
provided accurate information. Despite Rosecrans’s report, Pruett and Rosecrans maintained
their personal friendship.
In March, or at least ‘at all material times’ according to a stipulation of fact, Respondent
became aware of Rosecrans’s organizing activities: “At all material times Respondent had
knowledge that Rebecca Rosecrans, Hope Pruett and Craig Pitcher 6 were the leaders of the
Union organizing campaign, and Respondent also had knowledge that they were engaged in
union activities.”
In mid-March, according to Rosecrans, Bise and others who worked in the office began
giving her the silent treatment. Bise denies it, saying that on one occasion Rosecrans seemed
upset about something and when she inquired, Rosecrans told her she didn’t want to talk to
anyone, “. . . [S]he hadn't slept well. Didn't feel that good. Just didn't want to talk. . . [T]he very
next day I went back into the dispatch office with the same comment. And she said she just
didn't want to talk and to leave her alone.” So from then on, Bise did so. Even assuming
Rosecrans should be credited over Bise, there is no evidence that this silent treatment had
anything to do with her union activities.
April Warnings
In early April, General Manager Chris Piper observed employee Dustin McNabb talking
on his cellular phone while driving one of the ambulances in a non-emergency mode. Piper
instantly called the ambulance on his Nextel walkie-talkie cell phone, spoke to McNabb’s partner
Craig Pitcher and told them to stop it. A few days later he had a conversation with Pitcher to the
effect that it was against the rules to have a personal cell phone in the ambulance. Pitcher, who
says Piper told him it was a ‘coach counseling,’ did not agree that there is such a rule. The
employee manual is subject to different interpretations. At pp. 55-56 it says: “Employees may
not carry personal pagers or personal cell phones on their persons while on duty, to prevent
interference with patient care or other responsibilities. Personal pagers or cellular phones. . .
may be kept in quarters or onboard company vehicles. Cellular phones, either personal or
company, may never be used [w]hile driving a company vehicle.”
The General Counsel cites this incident as evidence of union animus. And it is true that
Pitcher was a union activist. Yet there is good reason to doubt that this is evidence of animus.
First, there is no doubt that it is against the rule to drive an ambulance while talking on a cellular
phone. That is what Piper called about, for he had seen the driver doing it. There is no

6 Pitcher was an ambulance crew member.
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evidence one way or another regarding whether he had recognized the driver as McNabb; he
undoubtedly knew he had spoken to Pitcher. Second, there is no evidence in Pitcher’s
personnel file of any discipline, assuming ‘coach counseling’ is the first step in the progressive
disciplinary system. 7 It seems to me that if it were a warning of any type which required a
record be kept, one would have been. As I view it, this ‘coach counseling’ is nothing more than
ordinary supervision – nothing more than a supervisor explaining the proper manner in which an
employee is to conduct himself. It is not a warning at all. And certainly some sort of reminder
needed to be made, even if Piper cited part of the rule incorrectly or spoke to the wrong
employee (and who is to say that McNabb didn’t receive a similar lesson? No party inquired
one way or the other). The important thing was to remind ambulance personnel that talking on
a cell phone while driving was not allowed. Common sense, even without the rule, dictates the
same.
Finally, there is no connection whatsoever to Pitcher’s union activities in Piper’s
admonishment. It does not constitute evidence of union animus and certainly has no bearing on
what happened to Rosecrans 6 months later. Not every chewing out, even those which are in
part erroneous, is discriminatory. Both Pitcher and McNabb together comprised the ambulance
crew. McNabb clearly erred when he spoke on his cell phone while driving. Piper was right to
be concerned and to mention it to the more senior employee. His commentary amounted to
nothing insofar as the disciplinary system was concerned. Pitcher may have thought the
criticism unfair and perhaps it was, but it did not interfere with anyone’s §7 rights. It therefore
does not qualify as animus which might inform us about what happened later to Rosecrans.
On April 4, ten days before the NLRB election, Bise issued a ‘white slip’ to Rosecrans.
None of the ‘warning’ boxes was checked and it may be reasonably assumed that this was a
verbal warning, rather than a written one. It described Rosecrans’s ‘ongoing’ behavior which
had begun on March 18, was repeated on March 21 and occurred again in early April. Bise
cited as witnesses and complainants the three office employees, Blaylock, Herrera and Gomez.
She said: “Complaints have been stated by several employees, these complaints being brought
to my attention individually. The statements are of non work related conversations at the
dispatch window often loud and very disturbing to their productivity. Also of extreme rudeness
when asking a work related question.”
Rosecrans wrote on the slip: “I do not agree. I have been given the silent treatment for
well over three weeks now by Geri and most of the acctg office staff.”
The mere fact of this warning, supported by the presumably valid complaints of the three
office workers does not establish union animus. It is in no way connected to Rosecrans’s union
activity. Contrary to Bise’s note, the loudness appears to have been work-related – usually
shouting through the outside window to drivers, according to Gomez. Bise had reason to
believe the three office employees and Rosecrans’s response was not a denial. She offered no
contrary version. The ‘silent treatment’ response did not address her co-workers’ complaint.
On April 14, the day before the representation election, paramedic Valerie Davis and her
ambulance partner Steve Dykstra were pulling the 8 a.m. to 8 p.m. shift at the St. Helena
station. After performing their routine duties, at about 9:30 that morning Dykstra retired to the
back room and took a nap. Similarly, Davis fell asleep in the front room reclining chair while

7 It is not. The progressive discipline system is found on p. 44 of the employee manual. It
describes ‘verbal counseling’ as the first step. The forms used in the system do not include, as
an option, ‘verbal warning.’ The first choice is ‘warning,’ followed by ‘suspension’ and then
‘dismissal.’ Under the rules it would appear that a verbal warning would be recorded and
maintained in a file for future reference.
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watching television. Both should have remained awake as it was a daytime shift. They were
awakened by loud knocking. Davis answered the door to find General Manager Piper,
accompanied by a female high school student who was participating in a ‘shadow’ program
where students follow a worker during their day; this day the student was shadowing Piper. He
was discomfited to find Davis, at least, sleeping and wearing her T-shirt, not the company
uniform shirt, which was hanging on the recliner. Piper made a short comment to her about
being out of uniform, quickly showed the student around the station and then left. On April 17,
ambulance supervisor Jason Bond, per Piper’s instruction, issued Davis a verbal warning for
being out of uniform on April 14.
The General Counsel observes that Davis was one of the members of the union
organizing committee, but that her partner Dykstra was not. Dykstra was not disciplined, but
according to Davis, Dykstra, unlike her, was wearing his uniform shirt, even though it was
unbuttoned. From that circumstance the General Counsel asserts that union animus may be
inferred. I do not agree. Davis was in fact out of uniform; Dykstra was not. Furthermore, Piper
said nothing to her at the time to suggest that discipline was forthcoming. The election was
scheduled for the next day. Had Piper wished to coerce Davis, he would have taken steps
before the election itself. In any event, it is not a type of animus which suggests that
Respondent is willing to discharge an employee for anti-union purposes. Moreover, a post-
election warning such as this would not have accomplished such a coercive aim. It was clearly
aimed at her appearance, nothing more. Accordingly, I do not find Piper's verbal warning to be
of any significance under the Act. 8
I therefore find that the April incidents have no bearing on what occurred in August.
July–August; Events Leading to Rosecrans’s Discharge
The Union was certified as the exclusive collective bargaining representative on May 2.
Negotiations began on July 20. Rosecrans attended all but one of those meetings and served
as the union's recording secretary for the purpose of keeping the Union's negotiation minutes.
Similarly, her co-worker and friend, night dispatcher Hope Pruett, also attended the meetings as
a bargaining committee member. As co-workers on 12-hour shifts they regularly relieved one
another. Usually a shift change involves an update concerning the previous shift's events and it
was not uncommon for them to converse about nonbusiness matters of mutual interest. Since
both were on the Union's bargaining committee, one of their usual topics was what had
transpired during any negotiation session which both had recently attended. These discussions
often took place in the dispatch office or in the doorway leading to it. This meant that their
conversation was audible to those accounting office employees who happened to be present.
Sometimes those conversations seemed to disturb those workers, as had occurred in April,
resulting in a warning to Rosecrans.
At 7 p.m., on August 16, another conversation took place at that location. This resulted
in Melanie Gomez complaining to Geri Bise that the conversation had been loud, about the
Union, and disruptive to her. Gomez's complaint asserted that the conversation was not work
related and lasted for some 45 minutes. On August 22 Bice and Jeremy Piner met with
Rosecrans. During the meeting, Bice issued a white slip to Rosecrans concerning the incident,
saying: "it has been reported once again that loud & disruptive conversation is taking place in

8 That there is testimony that Respondent’s enforcement of the uniform policy was
inconsistent, at least when the drivers were waiting at station, is insignificant. Piper was
undoubtedly embarrassed to find one of his drivers out of uniform during the daytime while
showing the business off to an outsider, even if it was a high school student. Davis did not
present the image Piper expected to see.
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the office/dispatch area. Hope reported to work & punched in at 7 PM. The conversation
unrelated to the shift change began. You punched out at 7:15, creating double time. Melanie
was subjected to very uncomfortable non work related conversation. She confronted me on
Wed. in tears stating she did not wish to work in the office when only Rebecca was present.
This is not acceptable behavior on your part."
Gomez's handwritten report about the incident focused both on Rosecrans's voice
volume and on the subject matter, the union negotiation meeting: "On Aug. 17 '05 I had
witnessed an employee Rebecca Rosecrans talking loudly to Hope Pruett about the union
meetings that had gone on during that day since Hope was one of the attendants. For
approximately 45 minutes they proceeded to talk loudly about the union and issues that were
discussed during that meeting, making it very uncomfortable for me. During this 45 minutes I
became very uncomfortable and unproductive, and was ready to walk out early. I finished my
shift and the next day in tears spoke to Geri about the situation and how uncomfortable I felt the
previous day."
None of the discipline boxes in the August 22 form was checked, and it would appear
that this, like the previous one, was regarded as a verbal warning. Pruett, however, was not
disciplined for the incident. It would appear that she escaped because Gomez was principally
complaining about Rosecrans and Pruett was not implicated in a late punch-out resulting in
overtime pay.
In addition, according to Rosecrans, Jeremy Piner remarked during the meeting that he
equated speaking about the Union at work as the equivalent of sexual harassment and he
wouldn’t stand for it. Piner did not offer a denial of her evidence. Rosecrans’s testimony:
Q BY MS. KWON: Okay. Tell us what you said to Geri, and what Geri said to you.
A (WITNESS ROSECRANS) I told her that I did not remember the conversation, but that
Hope and I talked on a regular basis at shift change and other times. I did ask to see the
supporting document. I asked to have a copy of it, but I was not given a copy of it.
At that time Jeremy Piner spoke up and said that talking about sensitive subjects such as
the union in the office was distressing to others in the office. That it was the same as sexual
harassment. That it was against federal law and they wouldn't stand for it. I'd already been
-- I'd already had one warning for this that was not resolved, and here we are with another
one. (Emphasis supplied.)
Aside from Piner’s injection, which carries legal consequences, there are at least two
suspicious factors here. The first is why Gomez made any complaint at all. Gomez says she
said nothing to either Rosecrans or Pruett to interdict the situation “Because I know Hope, and I
knew that both Hope and Rebecca were big Union supporters and they were very intimidating
and since it was two of them against just me, I didn't want to cause any disruption.” Gomez
would have us believe that she is easily upset by matters relating to the Union and that her co-
workers are intimidating, principally due to their being middle-aged. Why that would be so
eludes me. If she had some strong objections to labor unions, e.g., a religious reason or some
negative past experience, it seems to me that it would have been presented. Beyond that, the
Union’s presence at the Company did not affect her; she was not part of the voting/bargaining
unit. It wasn’t her concern.
As matters stand, Respondent simply observes that Gomez burst into tears when
making her complaint to Bise and was too weak to have taken matters into her own hands by
telling the two conversants that they were interfering with her work. It’s a simple matter for one
employee to tell another to ‘keep it down; I’m trying to work here,’ yet Gomez, who is 28 years
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old, somehow couldn’t find the gumption to speak up in her own interest. 9 She became tearful
far too readily for an adult. So the question is whether Gomez has made a legitimate complaint
about disruption (Gomez’s description of a 45-minute conversation, denied by Rosecrans,
seems somewhat contrived) or whether she simply can’t abide the Union’s presence even
though it will have no impact on her.
The second suspicion arises from Bise’s approach to Gomez’s complaint. Bise never
asked Rosecrans for her version of what had happened that evening. Her first discussion with
Rosecrans about the incident was during the meeting where she gave Rosecrans the warning,
nearly a week after it happened. Moreover, Bise was very careful to couch her warning to
Rosecrans in neutral terms. The subject matter of the Rosecrans-Pruett conversation was what
had taken place at the negotiation session. That, of course, was protected union talk. The
warning, supposedly, is not for the discussion’s subject matter, but for the volume of
Rosecrans’s voice and for its length as well as the additional pay obligation. Bise knew the
exchange was about Union business, but focused on Rosecrans’s loudness, not the substance
of the discussion.
Given the fact that she did not question Rosecrans about the incident, but simply took
Gomez’s word, I am uncomfortable with her approach. Rosecrans had generally been an
excellent employee and Gomez was known to be hypersensitive. There was good reason for
Bise to be more thorough than she was. Even if Bise knew Rosecrans didn’t want to talk about
social matters and was reluctant to speak to her, Gomez’s complaint transcended that small
hurdle and Bise’s failure to cross it must be a fact-finder’s concern.
There is a small discrepancy with dates here. Gomez says the incident occurred on
August 17, which was a Wednesday. That would mean it occurred during the 7 p.m. shift
change that day. Yet she dates her report August 17, after testifying that she came back to the
office early the following morning to complain to Bise – who usually came to work at 4 a.m. Bise
gave her the form, so it should have been dated August 18. Curiously, however, the dispatcher
work schedule, found in R.Exh. 3, shows that Rosecrans did not work on Wednesday that week,
probably because it was not her Wednesday. She did work on Tuesday, August 16, which is
the date Bise used in the disciplinary report. So when did this incident occur? It was not on
August 17 as Gomez says. Did Gomez wait a full day before reporting it? Or did she mistake
the 16th for the 17th?
After August 16, Rosecrans was not scheduled to work again until the 20th, the fateful
Saturday, so Bise’s seeming delay in delivering the warning is in fact unremarkable.
Given Gomez’s peculiar behavior, Bise's carefully worded warning, both being overlaid
by Piner’s comment, I am unimpressed with the manner in which Respondent handled this
warning. Not asking Rosecrans for her version was not entirely fair to her. It may properly be
asked why they did not. Was it because Rosecrans was a known union organizer and/or
because she was heavily involved with the Union's negotiation team? Why did Bise regard
Gomez’s complaint as having validity? What of the date inconsistency? Bise knew Gomez was
hypersensitive and also knew Gomez used protective earphones. Was Respondent attempting
to create a paper record of misconduct in order to build it to a discharge? Did Bise legitimately
regard the matter as a continuation of the nearly identical infraction in April? Did Bise tie it to

9 Gomez emphasizes her timidity by observing that she usually listened to a portable music
player through its earphones, effectively masking any Rosecrans-Pruett conversation. She says
that evening she had forgotten to bring it to work. It is not unreasonable to assume that the
older women were aware of her earphone listening and therefore were unconcerned about
interfering with her.
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what had occurred between the talking incident of August 16 and Rosecrans's failure to report
to work on August 20? If she did make that connection, was it because of Rosecrans's union
activity or because of her misconduct? Or did it only become important in the context of
Rosecrans’s failure to report to work two days before and the complications that brought?
Finally, what impact does Jeremy Piner’s comment have upon the analysis?
August 20 – August 30
Rosecrans was not initially scheduled to work the day shift on Saturday, August 20. It
was initially assigned to Donavan Balsley, her day shift counterpart and lead dispatcher.
Balsley had opened the shift to others and, although Rosecrans could have taken the shift
outright based on the seniority practice, did not do so right away. Because of that, the shift was
given to collections agent Ed Herrera, who served as a relief dispatcher. At some point
Rosecrans realized she was able to take the shift and bumped Herrera.
The General Counsel observes that on August 20, "a series of unfortunate events
occurred." In my opinion, "unfortunate" significantly under-describes the scenario. Rosecrans
lives in Davis, California, approximately 45 miles from Respondent's facility in Napa. The
commute is principally over Interstate-80 and then about twelve miles of state highway.
Interstate-80 is an extremely busy freeway, serving as the commute route between Sacramento
and San Francisco-Oakland. It can be a difficult road at any time of day but is particularly
heavy-going during commute hours. Rosecrans normally allows an hour and 15 minutes to get
to work.
For reasons of the heart, Rosecrans had a late night on the evening of August 19-20.
She was to report to work that morning at 7 a.m. She overslept and did not awake until 6:50.
She had absolutely no chance to get to work on time. Even an hour and 15 minute tardiness,
such as this presaged, would put great strain on Respondent's two shift system, not to mention
the harm to a shift skipped in its entirety. Here it would leave the night shift dispatcher on duty
without immediate relief in sight. Since it was a Saturday, Rosecrans thought there was no
supervisor immediately available for anyone to consult. The only person was night dispatcher
Hope Pruett, still on duty.
Rosecrans testified that the first thing she did that morning was to telephone Pruett at
the dispatch office. She telephoned on her landline cordless telephone. She testified that as
she spoke to Pruett, the telephone went dead. She tried again and was able to tell Pruett that
she would be late. The phone went dead again. She testified that the instrument had been left
off its cradle and had lost its charge. Her telephone bill shows only that one call was made at
6:59 a.m.
Rosecrans’s lateness that morning created a problem for Pruett because she had
scheduled an 8:30 test at a community college in Vallejo, about 14 miles distant. She simply
could not stay and cover the shift. Rather than calling lead dispatcher Balsley at home or call
Bise, who was the direct supervisor for the dispatchers, she began calling other dispatchers.
She first called Herrera, knowing that Rosecrans had taken the shift from him. By then, Herrera
had made other plans and declined. She then called Meleah Mahoney, who was training as a
dispatcher. Mahoney told her she had not been released to handle a shift by herself. Pruett
knew Gomez had been training on dispatch for a few days and so called her, though she says
she did not know Gomez had not been cleared to work by herself. Gomez lives within walking
distance of the office. Pruett told Gomez that she estimated Rosecrans would be about 45
minutes late. She made that estimate even though Rosecrans had said nothing concerning how
long it would take her to get from Davis to Napa.
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Curiously, Pruett contends that there were several telephone calls between her and
Rosecrans after the first one about 7 a.m. Respondent’s telephone records do not show any
calls during that time frame between the Company and Rosecrans. Nonetheless, Pruett asserts
that they spoke several times and she assured Rosecrans that the shift would be taken by
Gomez. Rosecrans agrees, despite the absence of any record proof the call was made. What
number would Pruett have called, since the land line was dead and which, according to
Rosecrans later, would not ring? Rosecrans’s cell phone? And, what phone did Pruett use?
The Company records show no long-distance calls at that time. Did she have a cell phone of
her own? If so, those records have not been presented. Moreover, she turned the dispatch
tape recorders off while she tried to figure out what to do. Why? Did she think this was not
company business? Was she trying to shield her friend Rosecrans by avoiding making a
record? Wouldn’t that allow Rosecrans to make up a cover story for her lateness which could
not easily be disproven?
Having received Pruett’s assurance that she’d only need to work for 45 minutes, Gomez
agreed to walk over and begin the shift. In the meantime, Rosecrans was having difficulties of
her own making. Once she had spoken to Pruett, she decided that she didn't need to hurry
because she presumed Gomez would want several hours work. As a result, she took her time
getting ready to leave. She took a shower, had a leisurely breakfast and otherwise readied
herself for work. When she was finished, about 8:30, she began looking for her car keys but
could not find them. She said she looked high and low throughout her apartment and out to the
car. She even searched her freezer and the planter box outside. She testified that she had
panicked, thinking that the company would use her behavior as an excuse to fire her.
Having spent much of the previous evening with her boyfriend, she said she went
outside her building and, using her cell phone, called him on his, leaving a code (the missed call
message) for him to call back. Since it was not a completed call, she explained, her cell phone
records do not reflect it. The boyfriend was said to be a power line worker from Southern
California who was working temporarily on a project in Yuba City or Marysville, around 50 miles
from Davis. She testified that he later called back and told her he had her car keys, promising
to return them after work that day. (Presumably, he had driven her car on their date the night
before and had neglected to return the keys.)
Despite the fact that she says her cell phone worked well enough to call her boyfriend,
she did not take any steps to use it to call Respondent. Instead, she let the matter go. To me
she testified she had difficulty getting a cellular signal unless she went outside her apartment
building. This inconsistency is troubling since she had done that very thing to call the boyfriend.
About 10:30, her cordless phone received a call from Donavan Balsley. She said, while
crying, that she had awakened late, was unable to find her car keys and she was having a very
bad morning. She explained that her keys might be with her boyfriend but she could not leave
the house because she couldn't lock it. Therefore, she testified, she told Balsley she was not
coming to work. (Should one infer from that testimony, using negative pregnant logic, that while
she didn’t have a house key, she did possess a spare set of car keys, yet didn’t want to admit
it? Most people do have spare keys; it is foolish not to. Is her explanation concerning securing
her front door credible? Modern entry doors can usually be locked without a key upon leaving;
only a deadbolt could not be.) Why could she not testify that she did not have any keys at all,
and stop there? If she had, that would have rendered her testimony about her inability to secure
her door unnecessary. She testified that she behaved in this manner because she panicked.
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In any event, the communication from Balsley was the first she had had with any
individual who held scheduling responsibility. It was not until Balsely’s telephone call that
anyone at Respondent, beyond Pruett, became aware that Rosecrans was not coming in. The
next day Rosecrans wrote an incident report, GCExh. 18, in an attempt to explain what had
happened. The report is two paragraphs long:
I was unable to get to work on 8/19 [sic] (Day Dispatch) because my friend inadvertently
took my keys to work with him. He was unable to call me until almost 11:00 to let me know
he had my keys because he was working on a pole in the Marysville–Yuba City area.
To compound the problem, I had overslept and was going to be late, anyway — but then
discovered I could not find my keys. My home phone was not working properly because it
had been left off the cradle charger for too long.
Clearly, this report is far from complete. It does not describe her first telephone call to
Pruett; it does not discuss any further conversations she later claimed to have had with Pruett,
particularly whether she had knowledge that Pruett had called Gomez in for temporary duty.
Furthermore, it omits entirely the fact that she had a working cell phone. Nor does she describe
the conversations she had with Balsley. Beyond that, there is no mention of whether she had a
spare car key or whether she could not lock her door if she left. Finally, she does not try to
excuse herself as having been in a state of panic. Yet all of these things were part of her
testimony to me, either direct or implied.
While this was developing, Gomez had been wondering where Rosecrans was, but had
done nothing to get relieved. Pruett completed her business in Vallejo and called Gomez in
dispatch to confirm that Rosecrans had arrived. The records show that call was made at
10:28 a.m. When Gomez explained that Rosecrans had not come in, Pruett asked Gomez if
she had called Rosecrans for an update. Gomez then called Rosecrans first on her home line,
but no one answered. Then she tried Rosecrans's cell phone and left a voice mail message
when no one answered that, either. This failure caused Gomez to call Bise. In tears, she
explained that since Pruett had been unable to stay, she had agreed cover the dispatch office to
allow Rosecrans time to arrive. Bise told her to call Balsley. She did and in rapid succession
Balsley called Herrera, Pruett, and Bice. He then made the previously described called to
Rosecrans.
Unable to get anyone else to cover for the not-fully trained Gomez, Balsley with Bise's
concurrence, made arrangements for the ambulance supervisor, whose station was adjacent to
the office, to assist Gomez if she needed it. Balsley also told her to call him any time she
thought she needed to.
Although Gomez successfully completed the shift, Rosecrans's absence had created a
circumstance which was risky and entirely avoidable. Gomez had not been cleared as a trained
dispatcher, and although Pruett bears a great deal of responsibility, 10 the entire incident was
triggered by Rosecrans. Furthermore, Rosecrans's honesty in describing the episode in her
incident report and in her testimony before me is suspect. Assuming that she was telling the
truth about her missing car keys, the fact remains that she never called the Company to tell
them of her difficulty. She says she knew Gomez was covering, and also knew that Gomez was
untrained. It was her responsibility to notify someone in charge or get to work as promptly as
she could. Her explanation for failing to notify the Company that she could not come in at all
seems hollow indeed. She testified that her cell phone worked when she left her apartment
building. She had used it to call her boyfriend. Why did she not also call the Company with the

10 Pruett did not escape discipline for her role in the incident. See GCExhs. 31 and 32.
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cell phone, assuming that her cordless home phone was still inoperable? There is no
explanation and it would appear to me that she was not dealing with the problem in an honest or
responsible manner. Moreover, in her incident report she did not mention that she had a cell
phone which was working that day. Why did she omit that from the report, but describe it to
me? In any event, her testimony does not match the telephone records and her testimony
about that morning is farfetched; indeed, extremely implausible.
On Sunday, August 21 (the day she wrote her incident report), Bise and Balsley sought
to speak with Rosecrans, but she declined, saying she wanted Union representation. Despite
that declination, Respondent permitted her to work her scheduled days, August 21, 22, 23 and
27, 28. During that period management began sorting through the various reports it had
obtained about the August 20 incident. As already noted on August 22, she did meet with Bise
and Jeremy Piner, by then willing to talk. In that meeting Bise issued her the verbal warnings
concerning the August 16 loud talking matter (described in more detail above) and a warning for
‘shift abandonment’ on August 20. According to Bise, Rosecrans told them that her ‘phones
were not working.’ They asked Rosecrans why she couldn’t have used a pay phone or a
neighbor’s phone, but she responded she didn’t know where to find one and for some reason
she couldn’t ask her neighbors if she could borrow theirs. Unsurprisingly, that response was
viewed as unsatisfactory.
On Tuesday, Bise and Balsley, apparently based on something Jeremy Piner had said,
discussed the August 20 matter a little more, having doubts about the credibility of Rosecrans’s
claim that her phone was not working on Saturday morning. They decided to pursue it further.
On Wednesday, Respondent’s management conducted a lengthy meeting to discuss
with its attorney Patrick Jordan the direction of its ongoing collective bargaining. During that
meeting they also discussed the facts, to the extent that they knew them, concerning
Rosecrans’s August 20 behavior. It had already issued her the warning for shift abandonment,
but information had now developed concerning Rosecrans’s lack of truthfulness. Company
president Gary Piner, who apparently had not been involved in issuing the earlier warning(s),
but had asked for information concerning what Rosecrans had said and done about the
absence itself, had become focused on whether Rosecrans had breached the company rule
requiring total honesty. The rule, found in the employee handbook, is set forth in the footnote
below. 11 After the management team had consulted with Jordan concerning the issue, Jordan
excused himself while management decided what to do. He was not present during the
decision-making process. It is instructive to quote Jeremy Piner at length:
[Witness JEREMY PINER] Yeah, on Monday [August 22], Geri [Bise] and Donavan [Balsley]
had come up that they had had a big problem, and they started coming up with facts and we
started looking at them.
Q [By Mr. JORDAN] And in particular, what was your role in terms of reviewing facts or
accumulating same?

11 Honesty — Honesty may be the single most important trait of an employee. Honesty presents
itself most often in our communication as well as the security of other people's property.
Piner's abhors dishonesty and will not tolerate dishonesty among its employees. Furthermore,
Piner's does not believe in degrees of honesty or placing a value on the item taken (i.e. ‘a lie is a lie' and
we don't care whether it is ‘white’ or not and 'stealing is stealing' regardless of the value of the item). If
you want minor items such as a copy, a rose, etc., just ask, you may be able to get what you want.
When there is a problem, you'll find that "Honesty" gives management an opportunity for correction,
but "Dishonesty" eliminates the opportunity for management to work with you to correct a situation.
Therefore, any employee, against whom there is evidence of the dishonest act, beyond a reasonable
doubt, will be terminated. [Italics in original.]
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A One of the things that had come up is, you know, we could get a record of all this, our tape
recording, we figured the tape recording would be working. I went in there personally, got
the tape, took it back to my office where I have another recorder that can play these tapes at
the rate that they need to be played at so, I reviewed the tape and the tape went off that
morning 12 and so we had no record of what had gone on.
Q That morning being which date?
A The morning of August 20th.
Q On what day did you engage in that activity?
A I believe that, the tape came up, I think it was Wednesday.
Q Directing your attention to that Wednesday, and I’m hoping that it’s August 25th? [13]
A That would be about right.
Q Did you meet with me?
A Yes.
Q Was this a prearranged meeting?
A I recall that we were going to discuss Union negotiation items, preparing for a negotiation
meeting coming up, I believe it was either the end of that week or the first of the next week.
Q Without reviewing what we discussed but confining yourself only to a topic, was the
Rosecrans issues, as I'll refer to it, a topic of discussion with me as your counsel?
A Yes.
Q For how long a period of time?
A We were in there for five hours. We had an exhaustive meeting.
Q Independent of communications with me during the course of that day, did you engage in
activities relating to the investigation?
A Yes. We had gone over all these details with my father and Geri Bise to try to make a time
line out of this make some sense out of it, because the stories were very convoluted and we
determined that it became rather unlikely that the facts that were presented to us could be
accurate.
Q My question was, independent of being with me, did you engage in activities regarding the
investigation on August 25th?
A Physical activities?
Q Yes.
A Yeah, I did inspect the tape that morning.
Q Upon my departure, did you participate in a meeting to discuss what would be done with
respect to Rebecca Rosecrans?
A Yes, I did.
Q Who else attended that meeting?
A That was Geri Bise and my father, and myself.
Q Where did the meeting take place?
A In my father’s office.
Q How long did the meeting last?
A I don’t think it could have been more than a half hour, maybe an hour but, it definitely wasn’t
more than an hour.
Q Do you know what the conclusion was, what was said regarding the decision between the
three of you?
A Well, it was said basically --
Q By whom?

12 Meaning that the tape was unreviewable because the machines had been turned off.
They had recorded nothing. As noted elsewhere the dispatcher who had turned them off was
Hope Pruett.
13 Wednesday was August 24.
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A I’m sorry?
Q And by whom?
A And by whom. Well, we all went around and around with the facts, because we wanted to
make sure that everything was accurate, we were giving due process here. And it came
down that --
MS. KWON: Your Honor, objection, not responsive.
Q BY MR. JORDAN: Tell us what was said, not your thought process.
A Okay. I concluded, as others concluded, that this had to violate our policy on line [lying].
Q I’m sorry?
A It had to violate our policies on line [lying].
Q And was there some discussion as how that conclusion was drawn?
A The phone calls and everything were -- I mean we could not, I could not believe that the
phone calls that were made, an[d] the omissions that were made, and that the time frame of
three and a half hours to search a small apartment, and maybe a path out to the vehicle to
find keys and -- there were just so many facts that didn’t add up. I mean a dispatcher --
Q Is this being discussed, by the way?
A This was all discussed, all these details, we went over it exhaustively. And I determined
there was --
[Objection interposed.]
THE WITNESS: My, [pause] [T]he words that I used were that it had to be lying, the facts didn’t
work out. It was not really believable that Rebecca, who we all knew or in my opinion I knew
that she had [her] head about her, I didn’t believe that she could be panicked and unable to
think and unable to respond. I also -- I mean I didn't believe that she couldn’t make the call.
Her phone not ringing [14] while it was charging, I’ve never heard of that. I’ve dealt with
electronics a lot and I didn’t believe it at all. She may have not been able to pick it up for an
extended period of time --
[Objection interposed]
THE WITNESS: So, anyway, I didn’t believe that the phone would not ring, and I still do not
believe the phone would not ring.
Q BY MR. JORDAN: Tell us what you were saying?
A I was saying that the phone would have rang. She may not have been able to pick it up and
speak for very long but, the phone would have been ringing. I also didn't believe she was
incapacitated to call in for three and a half hours. That did not make any sense to me either.
And I believe that Geri Bise said that she believed it had to be lying also.
Q What about your father?
A There was no doubt in his mind. He stated that this had to be a case of lying.
Q Was there any discussion about what lying meant in the context of your discussions?
[Clarification to witness omitted.]
A Yes, yes.
Q What was said by who about the impact of lying?
A Well, the impact of this lying?
Q What was said and by whom, if Rosecrans was lying? The impact of her lying, what was
said about that, if anything?
A Well, the impact of her lie was I had stated that she had left this position and made a
dangerous situation out of it by effectively having an inexperienced person come and
replace her. I know that my father stated that, you know, we had a zero tolerance policy on
lying and this certainly qualified.
Q Anything else that was discussed by the three of you during the course of this meeting?
A As far as details?

14 Referring to Gomez’s effort to call, but getting no answer.
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Q Anything else?
A Anything else? I can’t recall anything else at this time.
Q Have you exhausted your recollection?
A Yes.
Q Rebecca Rosecrans was on the Union’s negotiating committee?
A Yes.
Q Was the fact of her Union activities discussed by the three of you during the course of this
meeting?
A No. It had no bearing on our decision.
Q Was it discussed?
A Was it discussed?
Q The fact that she was on the committee?
A Yeah, actually I would say that we did discuss it.
Q Was that topic discussed when you met with me for five hours?
A I would say yes.
Q Now, let me ask you this question, did we fire Rebecca Rosecrans because she was on the
negotiating committee and was a leader in the Union?
A No.
Q What was she fired for?
A She was fired for lying.
On August 28, for reasons not explained in the record, Rosecrans turned off the dispatch
tape recorders, including the emergency tape recorder required under Respondent’s ambulance
contract with the County.
On August 30, after a bargaining session where she served as the Union’s note-taker,
Respondent issued her a suspension notice for having turned off those recorders. In the same
moment it gave her a discharge slip, citing lying concerning the previous shift abandonment and
for turning off the tape recorders on August 28.
Respondent operates two tape recorders in its dispatch office. It is not entirely clear how
they operate, but at least one is voiced-actuated and records office sounds, not just telephone
conversations. One is tied to the County's 911 emergency dispatcher. Respondent's contract
with the County requires that recorder to be active at all times. The second was Piner's backup
and had the same requirement. It is not entirely clear, but it appears that Respondent's
dispatchers had drifted into a practice which was inconsistent with the contract's requirement.
In July, Balsley had issued a memo which restated the policy that the tape recorders were to be
left on at all times. All the dispatchers, including Rosecrans and Pruett, signed the memo in
acknowledgment of its receipt. Despite signing the memo, at least some dispatchers did not
take it seriously. Pruett had turned the dispatch tape recorders off during her call to Rosecrans
concerning her lateness on August 20. That meant, when Jeremy Piner tried to investigate
company records concerning Rosecrans's August 20 behavior, there was nothing to review.
Within a week, Rosecrans turned them off herself.
There is employee testimony, to which the General Counsel points, that Respondent had
both permitted and trained employees to allow them to turned the recorders off while making
personal calls. Balsley denied that he trained dispatchers in such manner. Frankly, I am of the
view that neither the employees who gave the testimony nor Balsley are entirely correct; he had
been seen turning them off himself. Balsley had not been the lead dispatcher all that long
(about a year when the incidents occurred) and the previous lead dispatcher had been a night
shift employee whose command of the situation on other shifts left much to be desired. In my
view this is simply a matter of "drift;” over several years it was a practice which, while contrary to
outstanding rules, had taken root without close oversight. Nevertheless, Respondent had
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always been bound to the County contract obligating the employees to maintain an audio
record. Indeed, a County review would have required corrective measures. Balsley's July
memo was a reasonable remediation as Respondent’s management came to isolate the
issue. 15
III. Analysis and Conclusions
Reviewing the remaining complaint and the arguments made by counsel for the General
Counsel concerning purported union animus harbored by Respondent, I have come to the
conclusion, mentioned somewhat piecemeal in Section II, that most of the facts cited in support
of the allegations concerning Rosecrans must be rejected. For the most part, they are simply
irrelevant. The first, the April warning for repeatedly talking too loudly was clearly not aimed at
any union connection. The complaints were entirely valid and reported by every employee who
worked in the administrative/accounting office. Rosecrans was being disruptive and the
conversations about which the staff was complaining have not been convincingly demonstrated
to have been a union activity. It sounds mostly in general boisterousness, perhaps impelled by
a feeling of empowerment as the union drive got off the ground. But there has been no showing
that her union activity was the basis of the office employees’ complaints.
Similarly, the warning to fellow union activists on the ambulance side shortly after the
mid-April NLRB election had no bearing on what Respondent was faced with in August when
Rosecrans began to pile up her transgressions. The non-disciplinary admonition to Pitcher
concerning cell phone usage in the ambulances and the verbal warning to Davis for being out of
uniform offer nothing in support of Rosecrans in August. Neither was aimed at the employee as
a response to their union activity. In each case it was simply enforcement of the employee
handbook rules.
The warning issued to Rosecrans on August 16 following Gomez’s complaint stands on
different grounds. The strongest reason to conclude that the warning was discriminatory is
Jeremy Piner’s equating union talk to sexual harassment. This parallel is simply false. Union
activity, including union talk, is protected by law — specifically, §7 of the Act. That protection is
not easily lost. Sexual harassment, on the other hand, is unlawful from the outset. Unwanted
and coercive sexual overtures are not protected in the workplace; such conduct is forbidden by
law.
Here, it is undenied that Jeremy Piner, in discussing with Rosecrans the nature of
Gomez’s complaint, acknowledged that he knew the conversation was about the Union and the
status of the negotiations. To him, it was harassment of Gomez, though the evidence before
him did not, and cannot, support such a conclusion. Under his analysis, the warning, even if it
had some nondiscriminatory merit (too loud, too disruptive, etc.), was harassment for it offended
Gomez. That shallow, and non-objective approach, does not even take into account Gomez’s
hypersensitivity concerning unions. Nor does it account for Gomez’s lack of reasonableness:
Why didn’t Gomez just ask Rosecrans and Pruett to pipe down? Union negotiations should
have been of no interest, even if offensive, to Gomez who was outside the bargaining unit. If
she didn’t want to hear about it, all she had to do was to assert their conversation was disrupting
her work. Piner did not understand that Rosecrans and Pruett’s talking about the Union was
protected and that Gomez was complaining about a subject matter that those two, within
reason, could talk about.

15 In the settled complaint, Respondent’s issuance of the memo was alleged as an §8(a)(5)
unilateral change. That allegation would have been dismissed. In any event it is not evidence
of union animus as might support an §8(a)(3) violation.
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Frankly, Bise’s analysis of the circumstances were far more insightful than Piner’s. She
understood that the conversation’s subject matter was off limits, but that interference with
another’s work was not. And, of course, that is how she wrote the warning. Even so, neither
she nor Piner independently inquired about Rosecrans’s perception of what happened that
evening. Nor does it appear that they asked Pruett about it. That failure means they simply
took Gomez’s tearful word for what happened.
Objectively, Gomez’s complaint should have been viewed more skeptically. The fact
that she was in tears should have been of little import; she cries far too easily. Her inability to
control her tearfulness suggests that she is not seeing things as they are. Besides, leaving
aside her minor date discrepancy, what can one make of the fact that she was not in tears at the
time of the incident, but had been so reduced some 9 or 10 hours later when she went to Bise?
Isn’t her response backwards? Surely the normal sequence would be reversed: cry first when
the incident happens and become cool about it later. As an objective matter, there is much
about Gomez’s behavior and report which lends itself to rejection. Skepticism needed to be
applied. Yet Bise and Piner accepted it uncritically.
Collectively, Piner’s equating (on a logic basis) lawful union talk with unlawful sexual
behavior, his and Bise’s failure to recognize the inherent unlikelihood of Gomez’s story, and
their failure to ask Rosecrans and/or Pruett their version of what had happened, all lead to the
conclusion that the warning was really to interdict lawful employee talk about union affairs. Why
else would Piner have made his remark?
Accordingly, I find that the August 22 warning issued to Rosecrans for the August 16
talking matter, violated §8(a)(1). Although separately alleged as an §8(a)(3) violation, I do not
deem it necessary to make such a finding. The remedy would remain the same.
Furthermore, that warning, being part of the progressive discipline procedure, can be
seen as animus of such a nature as to support the finding of a prima facie case for the §8(a)(3)
allegation that Respondent suspended and discharged Rosecrans on September 30 because
she was a union activist. Indeed, all the elements of a prima facie case are present.
Respondent has stipulated that it knew Rosecrans was a union activist and it had, of course,
observed her in her duties as the Union’s record-keeper during negotiations. The wrongful
warning constitutes union animus and it fired her within a time-frame connected to her union
activism. This suggests that a motivating factor in discharging Rosecrans was her union
activism. See, e.g., Naomi Knitting Plant, 328 NLRB 1279 (1999)
The question at that point, as mandated by Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and approved by NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983) is whether Respondent has rebutted
the prima facie case by demonstrating that it would have suspended and discharged her despite
her protected activity. I find that it has met that burden of rebuttal.
While the ultimate reason for her discharge, according to Jeremy Piner, was her lying in
breach of the Company rule requiring honesty, that rationale must be viewed in context. Her
August 20 behavior is the starting point. Regardless of the reasons why she did not appear for
work that day, the fact is that she failed to do so.. In some ways what happened was worse
than simply not coming in. After telling Pruett she would be late, she then failed to update any
responsible person at work that she had decided not to report all.
Of course, Balsley had learned from Pruett that Rosecrans had said she would be late
that morning. Yet she never appeared. Respondent could certainly view Rosecrans’s
statement as a broken promise, if not, upon further examination, a lie. It certainly denied
Respondent time to find a proper replacement for Gomez.
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Next, Rosecrans’s (announced) tardiness resulted in an untrained person being
assigned to work in Respondent’s most sensitive position, emergency ambulance dispatcher.
She acknowledges Pruett told her Gomez had agreed to come in. That alone should have
alerted her to stay in touch with the office until she knew a fully trained person was serving as
the dispatcher. But she decided to take a relaxed approach. We know that she did not call
anyone to update her circumstances; indeed, it was not until Balsley called at 10:43 that Balsley
learned she was not coming in at all, adding that since she didn’t have her keys, she couldn’t
leave her house because she couldn’t lock the door. That call occurred 3 hours and 43 minutes
after her expected reporting time. The fact that she had stayed home for that long without
notifying anyone meant she knew she was behind the eight-ball. She also knew if anyone
focused on that fact, she would need a story of some kind to credibly explain why she had not
called. The truth would be an admission of misconduct. At that point she had one known
warning outstanding, the April white slip concerning talking too loudly. Concern about the
impact of that slip would have been present, but not overpowering had she called Dispatch,
Balsley or Bise within a reasonable time after her 7 a.m. conversation with Pruett. But she did
nothing until 10:43, when Balsley called. That eliminated any possibility that she could still
provide an acceptable excuse – one that may well have been accurate – the lost key situation.
What was difficult to explain was why she hadn’t telephoned. If Balsley had not called, it
is reasonable for Respondent to have concluded that she never would have advised anyone at
the Company what was happening and she knew it. She needed an explanation and chose to
assert that her cordless phone had been off its charging cradle too long and she couldn’t use it.
What she didn’t mention in her incident report was that she possessed a working cell phone.
She also didn’t mention that fact during the August 22 meeting with Bise and Jeremy Piner.
Instead, she gave what must have been viewed as a cock and bull story about an inability to
borrow a phone from an apartment neighbor and that she didn’t know where to find a pay
phone. This was viewed, when further scrutinized, as a lie to cover up the fact that she had no
good reason not to have called. Furthermore, Jeremy Piner could reasonably believe that her
cordless phone would ring so long as it was in its charger/cradle, meaning he thought Gomez’s
call had been ignored. She did have the caller ID feature on her phone. Curiously, it was
working only a few minutes later when Balsley called and she admits she saw it was he, so she
answered. I, too, doubt that her phone would not ring.
Nevertheless, that does not answer the question of why she didn’t find another phone
somewhere. In addition, why did she tell Balsley about her inability to lock her door? If she
didn’t have her keys, she couldn’t drive and therefore had no way to get to work. Why did she
add to the mix that she couldn’t secure her apartment? Was this embellishment, one which was
unnecessary to make herself understood? I make no findings on the point, but Balsley would
have been suspicious of that aspect even if he accepted her story about the keys having been
taken by the boyfriend. And, he could also have been suspicious about the lost keys in another
sense. Didn’t she have an extra set somewhere? Common sense would require it and I find
that the lost keys story would have created doubt about her credibility as well, particularly since
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she was, in other respects, a sensible person. 16 Certainly her claim that the cordless phone
would not ring didn’t sound right to Balsley.
And, aside from the story Rosecrans told them, her testimony that she had a working cell
phone which she used to signal her boyfriend demonstrates that she was omitting a significant
fact when she chose not to mention that second phone in either her incident report or to Bise
and Jeremy Piner on August 22. Even if that neglect doesn’t help the Company because they
didn’t know about it, the fact is that she has admitted to her omission in her testimony. From
that I can reasonably conclude that she was being deceptive to the Company as she reported
the facts both in writing and orally on August 22. She was dishonestly trying to cover up her
irresponsible behavior. While the full picture was not available to Respondent on August 22, her
story still didn’t hold water. As Bise, Jeremy Piner and Gary Piner began to digest it, running a
timeline and considering her story as a whole, they rationally reached the conclusion that she
had not been truthful in her explanations.
Thus, even if they believed her story about the boyfriend mistakenly taking her keys, as
far-fetched as it is, that wasn’t the dishonesty they perceived. They saw first her failure to follow
through after advising Pruett she’d be late. What they viewed as lying followed. What bothered
them initially was her story about the cordless phone not working and her connected, but
implausible contention that she couldn’t find a pay phone or call upon a neighbor. They saw it
as a transparent effort to cover up her failure to meet her duties as an employee. Their
assessment was certainly reasonable and the facts adduced at the hearing bear them out. She
clearly provided Respondent with reason to conclude that she had lied to cover up her failure.
Because of that, I have no difficulty in determining that the prima facie case proven by
the General Counsel has been rebutted. See McKesson Drug Co., 337 NLRB 935, 936 at n. 7
(2002) where the Board noted:
In order to meet its burden under Wright Line (i.e., to show that it would have discharged the
employee even in the absence of protected activity), an employer need not prove that the
employee committed the alleged offense. However, the employer must show that it had a
reasonable belief that the employee committed the offense, and that it acted on that belief
when it discharged him. See Yuker Construction, 335 NLRB 1072 (2001) (discharge of
employee based on mistaken belief does not constitute unfair labor practice, as employer
may discharge an employee for any reason, whether or not it is just, so long as it is not for
protected activity); Affiliated Foods, 328 NLRB 1107, 1107 and fn. 1 (1999) (it was not
necessary for employer to prove that misconduct actually occurred to meet burden and
show that it would have discharged employees regardless of their protected activities;
demonstrating reasonable, good-faith belief that employees had engaged in misconduct was
sufficient); and GHR Energy, 294 NLRB 1011, 1012-1013 (1989) (respondent met Wright
Line burden by showing that employees would have been suspended even in the absence
of their protected activities, because respondent reasonably believed they had engaged in
serious misconduct endangering other employees and the plant itself). . . . [Chairman
Hurtgen’s concurring comment omitted.]

16 The General Counsel adduced from Rosecrans testimony which, if credited, describes
Rosecrans’s desperation as she looked for her keys that morning, apparently in an effort to gain
a favorable determination of her credibility. In fact, that testimony is entirely irrelevant to the
issue of either the prima facie case or Respondent’s defense that Rosecrans was fired for lying.
At worst it enhances the viability of Respondent’s skepticism; at best it can simply be set aside
as not tending to prove or disprove the issue. Her testimony concerning the morning’s troubles,
aside from the phone calls or lack of them, is colorful but ultimately of no consequence to the
proper legal analysis.
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See also Jordan Marsh Stores Corp., 317 NLRB 460, 476 (1995) where the Board
adopted Judge Michael O. Miller’s statement of the law: “To rebut that prima facie case and
show that Ray would have been discharged for the same conduct even in the absence of her
union activity, Respondent must only show that it reasonably believed that she had engaged in
misconduct of a level warranting termination. GHR Energy Corp., 294 NLRB 1011, 1012-1013
(1989), enfd. 924 F.2d 1055, (5th Cir. 1991)”
Clearly Respondent has met the burden required by McKesson.
Furthermore, I would make this finding even absent Respondent’s rule regarding
employee honesty. Rosecrans’s recklessness put into motion a dangerous circumstance – an
untrained emergency dispatcher called to work when she never should have been. The fact
that Pruett, not Rosecrans, was the one who put Gomez in the dispatch office is irrelevant.
Rosecrans did nothing to alleviate the situation once she told Pruett she was coming in late and
Pruett advised her that the untrained Gomez would sit in. She then lied about her role in
creating that circumstance. She would have been fired even without the rule no matter what
protected conduct she had previously engaged in. Accordingly, the allegation concerning
Rosecrans’s discharge will be dismissed.
This dismissal essentially overrides the §8(a)(3) allegation concerning her simultaneous
suspension and it is therefore unnecessary to make any findings about it. Even so, the record
shows she had, in July, been instructed not to turn off the tape recorders. She did so anyway.
Her misconduct was clear. Suspension was in the offing.
IV. 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. The affirmative action shall also require Respondent to post a
notice to employees announcing the remedial steps it has undertaken.
Based upon the foregoing findings of fact, legal analysis, and the record as a whole I
hereby make the following
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of § 2(2), (6) and (7)
of the Act.
2. The National Emergency Medical Services Association is a labor organization within the
meaning of § 2(5) of the Act.
3. Respondent violated §8(a)(1) of the Act on August 22, 2005 when it issued a warning to its
employee Rebecca Rosecrans which was, in large part, based upon her union activities and
because it equated activities protected by §7 with activities prohibited by other laws.
4. The General Counsel has not proven any other violation of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended: 17

17 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in §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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ORDER
Respondent, Napa Ambulance Service, Inc., d/b/a Piner’s Napa Ambulance Service,
Napa, California, its officers, agents, and representatives, shall
1. Cease and desist from:
a. Interfering with, restraining and coercing employees who exercise the rights guaranteed
them by §7 of the Act by issuing them warnings because of their activities on behalf of the
National Emergency Medical Services Association or any other labor organization and by
wrongfully equating union activity with activity prohibited by other laws.
b. In any like or related manner restraining or coercing employees in the exercise of the
rights guaranteed them by §7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
a. Within 14 days from the date of this Order, remove from its files any reference to
Rebecca Rosecrans’s August 22, 2005 unlawful warning, and within 3 days thereafter, notify her
in writing that this has been done and that the warning will not be used against her in any way.
b. Within 14 days after service by the Region, post at its facilities in Napa County, California
copies of the attached notice marked “Appendix.” 18 Copies of the notice, on forms provided by
the Regional Director for Region 20 after being signed by Respondent's authorized
representative, shall be posted by Respondent immediately upon receipt 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 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, Respondent has gone out of business or closed the facility
involved in these proceedings, 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 August 22, 2005.
c. 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 any motions outstanding which are inconsistent with this
decision are DENIED.
____________________________________
James M. Kennedy
Administrative Law Judge
Dated: Washington, D.C. December 20, 2006

18 If this Order is enforced by a Judgment of the 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.”
.
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 issue you warnings because of your activities on behalf of the National
Emergency Medical Services Association or any other labor organization.
WE WILL NOT tell you that protected union activity is prohibited by other laws.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed you by National Labor Relations Act.
WE WILL within 14 days, remove from our files any reference to our August 22, 2005 unlawful
warning to Rebecca Rosecrans, and within 3 days thereafter, notify her in writing that this
has been done and advise her that the warning will not be used against her in any way.
NAPA AMBULANCE SERVICE, INC., d/b/a
PINER’S NAPA AMBULANCE SERVICE
(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.
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5 p.m.
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, (415) 356-5138.