Professional Ambulance Service

National Labor Relations Board - Board Decisions

Oct 13, 1977

232 N.L.R.B. 1141 (N.L.R.B. 1977)

PROFESSIONAL AMBULANCE SERVICE
Professional Ambulance Service, Inc. and District No.
26, International Association of Machinists and
Aerospace Workers, AFLCIO and Walter Mel-
nyk. Cases I-CA-11717, 1-CA-11755, I-CA-
11882, 1-RC-14382, and I-CA-I 11893
October 13, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On May 19, 1977, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order, except that the remedy is
modified so that interest is to be computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Professional
Ambulance Service, Inc., Weathersfield, Connecti-
cut, its officers, agents, successors, and assigns shall
take the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 See, generally, Isis Plumbing d Hearing Co., 138 NLRB 716(1962).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concern-
ing their union activities or the union activities of
other employees.
WE WILL NOT create the impression among
employees that their union activities or the union
activities of other employees are under surveil-
lance.
WE WILL NOT threaten to transfer, reduce pay,
or discharge employees because they have en-
gaged in union activities or have filed charges or
given testimony under the Act.
WE WILL NOT threaten or attempt to blacklist
employees because they have engaged in union
activities.
WE WILL NOT assist Teamsters Union Local
536, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, to become the collective-bargain-
ing representative of our employees.
WE WILL NOT instruct employees to refrain
from engaging in union activities.
WE WILL NOT threaten personal reprisal against
employees because they have engaged in union
activities or filed charges and given testimony
under the Act.
WE WILL NOT discourage membership in
District 26, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, or any
other labor organization, by suspending or dis-
charging employees or by any other discrimina-
tion in their hire or tenure.
WE WILL NOT by any other means interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them by Section 7 of the
National Labor Relations Act.
WE WILL recognize and bargain collectively
with District 26, International Association of
Machinists and Aerospace Workers AFL-CIO, as
the exclusive collective-bargaining representative
of our drivers, mechanics, dispatchers, emergency
medical technicians, assistant managers, and area
managers employed at our Weathersfield, Hart-
ford, East Hartford, West Hartford, and New
Britain locations, excluding office clerical em-
ployees, professional employees, watchmen,
guards, and supervisors as defined in the Act,
and, if an agreement is reached, embody the same
in a signed written contract.
232 NLRB No. 165
1141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer full and immediate reinstate-
ment to Alan Jacomini, Walter Melnyk, Dennis
C. Mears, and August Schwartzkopf to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, discharging if
necessary any persons hired in their places, and
WE WILL make them whole for any loss of pay
which they have suffered by reason of the
discrimination practiced against them, with inter-
est.
PROFESSIONAL
AMBULANCE SERVICE,
INC.
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law Judge:
These consolidated cases came on for hearing before me at
Rocky Hill, Connecticut, upon a consolidated unfair labor
practice complaint,1 issued by the Regional Director for
Region 1, which alleges that Respondent Professional
Ambulance Service, Inc.,2 violated all five subsections of
Section 8(a) of the Act. The consolidated complaint was
further consolidated for hearing with objections to the
conduct of an election filed by the Union in Case l-RC-
14382.3 More specifically, the consolidated complaint
alleges that Respondent coercively interrogated employees
concerning their union activities, instructed employees not
to associate with other employees who were engaged in
union activity, threatened employees with loss of pay,
unfavorable working conditions and discharge if they gave
testimony in a representation case hearing, threatened
employees with discharge if they engaged in union
activities, and actively attempted to blacklist employees
who engaged in union activities. The consolidated com-
plaint further alleges that Respondent unlawfully assisted
the Teamsters to become the bargaining agent of its
employees, unlawfully discharged employees Alan Jacomi-
I The principal docket entnes in the complaint cases are as follows:
Charge in Case I-CA 11717 filed on April 28, 1976, by District No. 26,
International Association of Machinists and Aerospace Workers, AFL-CIO
(herein called Union or IAM) and amended charge filed therein on August
11, 1976; charge in Case I-CA-11755 filed by Union on May 10. 1976. and
amended charge filed therein on August 11, 1976: Charge in Case I-CA
11893 filed by Walter Melnyk on June 17, 1976, and amended charge filed
therein on August 12. 1976; consolidated complaint issued in all four cases
by the Regional Director for Region i, on September 14, 1976; answer to
consolidated complaint filed by Respondent on September 24, 1976; heanng
held in Rocky Hill, Connecticut. on February 7, 8, and 9. 1977; briefs filed
herein on or befolbre April 18, 1977. by the General Counsel and Respondent.
2 Respondent admitted either in its answer or on the record, and I find.
that it is a Connecticut corporation which maintains its principal place of
business at Weatherfield, Connecticut, where it is engaged in providing
transportation service for sick and infirm individuals. During the preceding
year, it purchased directly from points and places located outside the State
of Connecticut large quantities of motor vehicles, medical equipment, and
other supplies, and also performed services valued in excess of $50,000 for
Connecticut-based companies and state agencies. each of which annually
receives goods valued in excess of $50,000 directly from points and places
ni, Dennis C. Mears, Walter Melnyk, and August
Schwartzkopf because of their union activities, unlawfully
discharged Jacomini and Melnyk for the further reason
that they testified in a Board hearing or gave a statement to
a field examiner, and also that Respondent unlawfully
refused to bargain with the IAM as the duly designated
bargaining agent of the employees. The IAM requests that
an election held on June 8, 1976, be set aside for these and
other reasons, and both the General Counsel and the
Charging Party request a so-called Gissel remedy.4 Respon-
dent denies the commission of independent acts of
interference, restraint, or coercion and asserts that the
introduction given by it to a Teamster representative did
not amount to unlawful assistance. Respondent contends
that Melnyk was a supervisor and hence was not entitled to
the protection of the Act, that Schwartzkopf was not
discharged but quit his employment, and that Mears and
Jacomini were fired for cause. It resists a Gissel remedy and
asserts that its refusal to recognize the IAM was prompted,
at least in part, by the fact that it was confronted by a rival
demand for recognition by the Teamsters. Upon these and
subsidiary contentions the issues herein were joined. 5
A. The Unfair Labor Practices Alleged and
Objectionable Conduct
Respondent operates an ambulance service in and about
Hartford, Connecticut. The main office and dispatching
facility is at Weathersfield, a suburb of Hartford. It has
small ambulance stations at East Hartford, Hartford, and
West Hartford, and in the past year has established a new
one at New Britain. However, all employees who work in
these areas are dispatched by radio from the Weathersfield
location. Respondent corporation is owned and operated
by Harvey Kagan, who plays an active and dominant role
in the day-to-day running of the business. Respondent
stipulated at the hearing that, as of March 22, 1976, some
21 named persons were employed by it in a bargaining unit
composed of all drivers, mechanics, dispatchers, emergency
medical technicians, assistant managers, and area manag-
located outside the State of Connecticut. Accordingly, Respondent is an
employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. The Union and Teamsters Union Local 536, affiliated with
the International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein called Teamsters), are, respectively, labor
organizations within the meaning of Sec. 2(5) of the Act.
3 The principal docket entries in Case I-RC-14382 are as follows:
petition filed by Union on March 22, 1976, seeking an election in a unit
composed of all drivers, mechanics, dispatchers, and emergency medical
technicians employed by Respondent, excluding office clerical employees,
watchmen, guards, and supervisors as defined in the Act: hearing held on
April 22, 1976; Regional Director's Decision and Direction of Election filed
on May 10, 1976, and amended on May 26, 1976: representation election
held on June 8, 1976, in which 2 votes were cast for the IAM, no votes for
the Teamsters, and 13 votes for neither union; objections to the conduct of
the election were filed by the IAM on June 14, 1976; Regional Director's
supplemental decision issued on August 24, 1976, in which the representa-
tion case was consolidated with the complaint cases.
N.LR.B. v. Gissel Packing Co., Inc. 395 U.S. 575 (C.A. 4, 1969).
5 Certain errors in the transcnpt have been noted and are hereby
corrected.
1142
PROFESSIONAL AMBULANCE SERVICE
ers employed at the Weathersfield, Hartford, East Hart-
ford, West Hartford, and New Britain locations. 6 Since the
Respondent's business is intimately related to the health
care industry, various aspects of its operation are closely
controlled by the State of Connecticut. Among such
controls are regulations which permit patients to be
transported for hire only by licensed medical technicians, a
requirement that ambulances be operated at all times with
two certified technicians, a requirement that technicians
may be certified only after a period of training, and a
further rule that they be periodically recertified after
completion of mandatory refresher courses. Moreover, the
amounts which may be charged to the public for ambu-
lance service are regulated by the State.
On March 1, 1974, the Teamsters were certified as the
bargaining agent of the employees in the unit here in
question (Case 1-RC-13008). After several bargaining
sessions which extended over a period of 8 or 9 months, no
contract was concluded and the Teamsters abandoned any
further effort at providing representation. In the spring of
1976 the IAM began an organizing drive aimed at
representing the employees in the same unit. The parties
stipulated that, by March 22, 1976, the IAM had obtained
designation cards signed by 18 of the 21 persons employed
in the unit. These cards were admitted into evidence
without objection. They are conventional authorization
cards by which the signer authorized the IAM to act as his
collective-bargaining agent for negotiating wages, hours,
and working conditions. They contain a printed statement
to the effect that the card may be used to support either a
demand for recognition or a petition for an NLRB election
at the option of the Union. On March 16, the IAM sent a
certified letter to Kagan in which it demanded recognition
based upon these cards. It offered to demonstrate its
majority status. The letter was received but was never
answered. On March 22, the same Union filed with the
Regional Office a petition for an election in Case l-RC-
14382.7
The principal in-house promoter of the organizing
campaign was Alan Jacomini, who had been employed by
Respondent on a full-time basis for about 6 months when
the demand for recognition was made. Jacomini had the
title of assistant manager. However, his job functions
involved duties having no real supervisory responsibilities.
Jacomini, who was a member of the IAM at his previous
place of employment, actively solicited cards from Respon-
dent's employees, testified on behalf of the Union at the
representation case hearing on April 22, 1976, distributed
election propaganda during the preelection period, and,
after his discharge on May 23, 1976, acted as the Union's
observer at the June 8 representation election.
Immediately upon receiving the IAM's demand letter on
March 17, Kagan contacted Harold Flemke, the Team-
sters' secretary-treasurer, and asked Flemke what he
should do. Flemke insisted to Kagan, on the strength of the
6 Respondent also stipulated at the hearing that such unit was
appropriate for purposes of collective bargaining.
I In his Decision and Direction of Election in Case I-RC-14382, the
Regional Director recited Jacomini's functions in some detail and conclud-
ed that he was not a supervisor within the meaning of the Act. The same
conclusion was reached as to all area managers and assistant managers
These positions were all stipulated into the unit in this case
1974 certification, that the Teamsters were still the
bargaining agent of Respondent's employees. Flemke
asked Kagan for the opportunity to meet with the
employees again. At this time, the Teamsters has designa-
tion cards from only four employees who were then on
Respondent's payroll. The cards were obtained during the
1974 Teamster campaign. Kagan agreed to the request and
permitted Flemke to come to the Weathersfield office and
meet with employees in the company garage at 5:30 p.m.
on March 22. Kagan notified a number of his employees
about the meeting and told some employees to attend.
About 8 or 10 did so. Kagan told two employees who
attended the meeting, Bill Bailey and August Schwartz-
kopf, that the day of the union was coming, so, if the men
were going to have a union, he would prefer a union that he
knew about. Kagan escorted Flemke to the garage,
introduced him, and then left. Flemke spoke briefly to 8 or
10 employees who had gathered there, telling them of the
certification and of the benefits which the Teamsters hoped
to provide for them. One employee in attendance, Thomas
Daveron, credibly testified that Flemke told the group that
Harvey (Kagan) had indicated to him that he wanted
Flemke to organize the Company since he felt that the day
of the union was coming. Flemke also named other
companies in the Hartford area which the Teamsters had
organized and where they had concluded contracts with
good wages and benefits. When Flemke finished speaking,
the employees held a brief caucus among themselves and
decided not to support the Teamster effort because they
felt that competition between two unions would dilute the
strength of the organizing effort. At the conclusion of their
caucus, they told Flemke that they were not interested in
the Teamsters and he left. Some of the employees at the
meeting were still on the clock while others were attending
on their own time.8
One person who did not attend the Teamster meeting
was Jacomini. He was running an ambulance call at the
time it was taking place. When he returned to the
Weathersfield office, he met Kagan as Kagan was coming
out of the office. Kagan said, "You should have been here.
We just had a union meeting." When Jacomini asked why
he had not been invited, Kagan replied it was because he
was a "g.d." supervisor. He asked Jacomini "Do you want
to give up your supervisory position so you can vote?", and
then added, "Besides, you already did a good job
organizing that other rinky-dink union." On several
occasions during the next few weeks Kagan made reference
to the organizing driver in other conversations with
Jacomini. A representation case hearing was set in Boston
on April 15 and was postponed until April 22. On one
occasion before the hearing Kagan said to Jacomini, "You
-. Because of you I have to go to Boston on this union
bullshit."
During this period of time, Kagan told Walter Melnyk,
Jacomini, Schwartzkopf and others that they should not get
I The Teamsters obtained a position on the June 8 ballot by virtue of
their previous certification but they received no votes. They distnbuted one
piece of preelection propaganda aimed as much at the IAM as at
Respondent. The thrust of their argument to prospective voters was that the
IAM was lying to them and that the employees should select the Teamsters,
but failing that. they should vote for neither union in preference to the IAM.
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in the IAM organizing effort as they were
supervisors.
Jacomini and Kagan, together with other of Respon-
dent's employees, were attending night refresher courses to
obtain state recertification of their emergency medical
technician licenses. The two of them rode together to
school in the same automobile. On one such evening in
April, Kagan asked Jacomini what he had heard about the
union and Jacomini replied nothing. Kagan expressed his
view that he did not worry about the union because he
would beat them one way or the other. On the return trip,
Kagan stated that he was actually in favor of unionization
because his company was big enough, but he thought that
the organizing effort should encompass the entire ambu-
lance industry, not just Professional. He voiced the opinion
that an industrywide effort would ultimately work out to
his advantage since some of his small competitors could
not afford unionization, but stated to Jacomini, "You can't
do it with that rinky-dink union you got. You gotta have
the Teamsters." Kagan went on to tell Jacomini that
Flemke had a list of all the medical technicians in the state
and he would "put it together." Later on, Kagan suggested
to Jacomini that he get all of the Professional Ambulance
employees together to sign Teamster cards in order to "get
the show on the road." Jacomini made no response to these
suggestions.
On the evening before the representation case hearing in
Boston, Jacomini, who was scheduled to testify on behalf
of the IAM, went into the office and asked Kagan for
permission to take the next day off. He did not state the
reason for his request but he mentioned that Clark Woods,
another driver, had agreed to fill in for him. Kagan made a
wisecrack to the effect that Jacomini must have a date
lined up for the following day and then ventured the
thought, "If you don't want the overtime, what do I
care?" 9 Later on that night Jacomini and Kagan rode to
class together. Kagan asked Jacomini what he had lined up
for the following day. At this point, Jacomini told him for
the first time that he was going to the NLRB meeting in
Boston. Kagan became upset, told Jacomini that if he did
not show up for work he would be suspended or fired,
would get a pay cut of 50 cents an hour, would be assigned
to a less desirable ambulance service area in the north end
of Hartford. He accused Jacomini of undermining the
Company, said that he got more complaints about
Jacomini than about any other employee, and averred that
he was sick of Jacomini's "bullshit." He emphasized that he
would show Jacomini "who was the boss
around here." Just before the EMT class began, Jacomini
went to a pay phone to call his wife. Kagan passed the
phone booth and asked him, "Why don't you cause some
more - trouble." During a break between class
periods, Kagan said to Jacomini that, "because of you, I
might have failed this g.d. test tonight but I'm going to get
even with you. I'm going back to the office and I'm going
to pull your pay records and send them to unemployment
9 Kagan maintains that he agreed only to let Jacomini have the morning
off on Apnl 22 and wanted him back in the afternoon. I credit Jacomini's
corroborated version that Kagan had agreed to let him take the whole day
off.
i° The letter to which Kagan sent to Jacomini stated:
compensation and tell them that you were collecting and
working at the same time ... I'll show you who is the --
--- boss around here." Jacomini admits that, following
the termination from his former employer, he continued to
draw unemployment compensation after starting to work
for Kagan and that Kagan was aware of this fact.
On the following day, a representation hearing was held
in Boston in Case i-RC-14382. Boston is about a 2-hour
drive from Hartford. Jacomini did not report for work at
all on that day but came to Boston and tesified at the R-
case hearing. Kagan appeared at the hearing with Walter
Melnyk, who at that time had the title of manager of
Respondent Company. Kagan drove to Boston with
Melnyk. During the trip, he asked Melnyk if he had signed
a card and Melnyk admitted that he had done so. He told
Melnyk that if the union came in, he would refuse to
bargain with it and stated that everyone would then work a
40-hour week, meaning a loss of overtime pay. He also told
Melnyk that if Jacomini showed up, he would get only a
40-hour week, meaning a decrease in pay. Kagan also told
Melnyk that, if Jacomini showed up at the hearing, he
would be suspended because he had been told that he
could not attend.
After the hearing was over, Kagan asked the Hearing
Officer if he could fire or suspend Jacomini for showing up
in violation of his orders. The Hearing Officer reportedly
told Kagan that he could do what he wanted since he was
boss but suggested that he first consult an attorney. On the
ride back to Hartford from Boston, Kagan told Melnyk
that he knew who had signed union cards because he had
seen a list of card signers which was lying on a desk in the
hearing room. He asked Melnyk why he had signed a card.
Melnyk replied that he had signed because he wanted a
union at the Company. He felt that the Company was big
enough to afford a union and wanted more money and
union benefits. Melnyk expressed the opinion that unioni-
zation would be good for the ambulance industry because
the pay scale in the industry was not particularly good.
On the following day, April 23, Jacomini was suspended
for 30 days. When he reported for work at 8 a.m., the
dispatcher, JoAnn Smith, told him he was suspended. He
phoned Kagan at his home about 10 a.m. and asked what
his story was. Kagan said he was suspended for 30 days
and would get a letter to this effect. When Jacomini asked
why, Kagan replied that he would write the letter after he
got to work. During the afternoon of the same day,
Jacomini went to the office to see Kagan. When he spoke
to Kagan about the suspension, Kagan again said he was
sending him a letter relating to the suspension.l? He also
said that he was going to tell him a few things which were
not in the letter. He told Jacomini that he did not want him
around the office for 30 days and did not want to hear from
him. He told Jacomini, "You can file all the charges you
want. I talked to the NLRB agent in Boston and they told
us we would win the case. I don't want to see you back here
again because your job is not going to be here. I already
Due to your failure to obey a direct order of working April 22, 1976,
when you did not show for work. after being told to do so, you are
hereby suspended for thirty (30) days, without pay. Turn you uniforms
in so that the company may get credit, also your keys and any other
property belonging to the company which you may have.
1144
PROFESSIONAL AMBULANCE SERVICE
gave it to JoAnn (Smith). I received several phone calls
about you just last night that you were trying to organize
Manchester Ambulance. Nobody wants you around here.
As a matter of fact, you'll never get another job (in)
commercial ambulance in the Hartford area." Kagan also
told Jacomini that if he "got one - letter from the Labor
Board," he would turn Jacomini's pay records over to the
Unemployment Compensation Commission and would tell
Jacomini's wife that he "was messing around."
Within a few days, Kagan also transferred Melnyk from
Weathersfield to New Britain. At the time of this
reassignment, Kagan told Melnyk he was sending him to
New Britain "to keep him out of this union stuff." Kagan
told Melnyk that he would just get in trouble with it if he
stayed at the Weathersfield office. Kagan had been
comtemplating the establishment of a location at New
Britain and decided to do so at this time. The law requires
every ambulance station be equipped with space to park an
ambulance and with cots and other accomodations for at
least two men. Such a statement was established in New
Britain. However, dispatching of calls remained at the
Weathersfield headquarters. Melnyk was familiar with the
New Britain area and was assigned to work in that area
with another EM technician, Louis Annino, who also had
formerly worked in the New Britain area.i Since Respon-
dent had only one established client in that area, the
principal task to be performed by Melnyk and Annino late
in April and early in May was what Respondent called
public relations; i.e. visiting hospitals, clinics, doctors
offices, and other locations to solicit business. Along with
emergency calls, the public relations activity consumed
about all of their working day. They would report to work
and leave work each day from the Weathersfield office. I
discredit testimony in the record, principally from Charles
Epstein but also from others, that Melnyk continued to
manage the entire company while going from business to
business in New Britain.
On May 14, Melnyk and Kagan met with a New Britain
city councilman to discuss a possible contract between the
city and Respondent to provide amublance service. On the
way back to Weathersfield from the meeting, Kagan asked
Melnyk about a union flyer that had been circulated at
various hospitals and television stations. Kagan told
Melnyk that Jacomini, who was then on suspension, was
passing them out and expressed the opinion that the
contents of the flyers were so defamatory that Kagan might
have a slander suit against Jacomini. Kagan asked Melnyk
if he had signed a card. He said that Melnyk was getting
deeper and deeper into trouble by continuing to associate
with Jacomini.' 2 He accused Melnyk of undermining the
Company. He again referred to Melnyk's knowledge of the
union flyer and stated that if Melnyk and another
employee, Manny Marcello, did not stop undermining the
Company, Melnyk would lose his job. Kagan again
questioned Melnyk on his knowledge of the union flyer
and whether he had signed a card. He also asked Melnyk if
he had attended a "union meeting" in Newington. The
Newington meeting was actually a conference with a Board
ut I discredit any testimony in the record that Melnyk asked for this
transfer. He was a comparatively longtime employee of Respondent and
was a close associate of Kagan. When the assignment was made, he simply
accepted it without protest.
agent who was investigating a charge then on file relating
to Jacomini's suspension. Melnyk told Kagan he had to
cancel a date to attend this conference because he was
working late. Kagan asked about a second Newington
meeting with a Board agent. Melnyk admitted speaking to
a Board agent on that occasion and giving an affidavit
relating to the Jacomini case. At that point, Kagan told
Melnyk that he was fired. He added that he had wanted to
fire Melnyk earlier and had discussed the matter with his
attorney, and that Melnyk's action in signing a statement
in the Jacomini case was the last straw.
A few minutes later, Kagan asked Melnyk if he wanted
his job back. Melnyk's reply was that no one wants to lose
his job. Kagan then suggested that Melnyk talk with the
Company's attorney, Morton W. Appleton, to see if
Appleton could straighten it out. The next day Melnyk
went to Appleton's office and discussed the matter with
Appleton. Appleton told him that he should not have
signed the statement because Harvey had been like a father
to Melnyk. Appleton said that signing the statement was
like sticking a knife into Kagan. When he returned to the
Weathersfield office, Kagan asked Melnyk what Appleton
had said. When Melnyk repeated the conversation Kagan
told him that he was still fired.
Dennis C. Mears worked as a part-time ambulance
driver, dispatcher, and attendant for about year and a half
prior to his discharge on April 29, 1976. Mears is also a
qualified instructor in cardiopulmonary resuscitation
(CPR) courses, which are given under the auspices of the
Red Cross or the Heart Association. A CPR course is a
part of the EMT refresher training which every emergency
medical technician must take periodically in order to retain
his state EMT certificate. Sometime in April, Kagan asked
Mears if he would, as a convenience to Respondent's
employees, give the CPR course at the company premises
to the certified EMTs at Professional Ambulance, includ-
ing Kagan, who were then in the process of taking the
overall EMT refresher course. Mears agreed. Later, Kagan
asked Mears if, during the course of instruction, it would
be permissible for Kagan to perform the resuscitation
exercises on a desk rather than on the floor. Kagan has a
large frame and told Mears that he could not get down on
the floor because he had a bad knee. Mears replied that
most heart attack victims are found on the floor, not on a
desk, and refused Kagan's request. Shortly thereafter,
Kagan told Mears that the special CPR course at
Professional Ambulance was not going to be given since
only one employee had expressed any interest in it.
Mears was present at the Weathersfield office on the
evening of April 21 when Jacomini asked Kagan for the
day off. Later on that evening, he was told by Kagan that
Clark Woods, Jacomini's replacement, would not be
needed the next day since Jacomini was going to work.
Mears called Jacomini's house and received a contrary
story from Jacomini's wife.
On April 23, the day that Jacomini was suspended,
Mears was at Respondent's office. Kagan called Mears
into his own office and said to him, "I know you are a
12 It was well known that Melnyk and Jacomini were close friends.
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
friend of A.J.'s (Jacomini) but you are still in the middle of
this union shit." Mears protested that he was not in the
middle of anything.13 Kagan said that he had made the call
for Clark Woods. Mears said that he did not make any call.
Kagan then stated, "You just stay the ----- out of it
or I'll fire your ass too. I'll show you guys who is the --
--- boss around here.
On Sunday evening, April 25, the CPR course that
Kagan originally asked Mears to give to Professional
Ambulance employees was given to seven Professional
Ambulance employees, including Kagan, by Charles
Epstein. Epstein had been laid off from his previous job,
was hanging around Respondent's premises, and was
employed on a part-time basis as a technician. Beginning
on or about April 25 he was hired as manager. He is at
present the manager of Respondent Company and is also a
partner of Kagan in another ambulance company in
Middleton, Connecticut. Mears was present at the Weath-
ersfield office just before Epstein's course of instruction
was scheduled to begin. Epstein asked Mears if he would
be interested in assisting in the presentation of the course,
but Mears declined. Epstein showed Mears the test which
he was preparing to give at the conclusion of the
instruction. The paper contained 15 questions on it. Mears
told Epstein that there had to be more to the test than what
appeared on the paper in front of him because there were
only 15 questions on it. Epstein said that it was a proper
test and had been given to him by Cindy Ludwig, another
CPR instructor. Mears pointed out that the answer sheet
had spaces for 25 questions but the question sheet had only
15 questions and asked why there was a discrepancy.
Epstein simply repeated his conviction that the test was a
proper one. Mears was then dispatched on a ambulance
call while Epstein proceeded to give the course and to
administer the test.
On the following Wednesday evening, April 28, Mears
was attending an EMT refresher course given by Harry R.
Fischer, Jr., an employee of the Aetna Life and Casualty
Company and an official of a volunteer ambulance
company. Fischer was giving the EMT course under the
auspices of the State of Connecticut. The CPR instruction
which Epstein had given, being part of the EMT recertifi-
cation program, was under Fischer's general supervision.
Mears told Fischer about the 15-question test which
Epstein administered and asked him if there was such a
test. Fischer said he knew nothing about such a test but
would make inquiries. He phoned Epstein and asked
Epstein where he got such a test. Epstein repeated that he
got it from Cindy Ludwig. Fischer suggested that Epstein
check the test to establish if it was a valid test authorized
by the American Heart Association. The following day
Fischer went to the Heart Association office and spoke
i:1 The record herein reflects that Mears had, in fact. signed an IAM
card,
14 Fhere is considerable record testimony concerning another event
involving Mears which took place early in March 1976 involving the 1976
Heart Association, I credit Mears' version that he had come across a large
printed advertising flyer. distributed to the general public by Professional
Ambulance, which contained a picture and a caption that several of
Respondent's employees were instructing in cardiopulmnonary rescusitation.
None of them were licensed or certified instructors and Mears brought this
fact to Kagan's attention, suggesting that the caption of the picture was
misleading. Kagan passed the matter off' as merely a question of
with Valerie Vasquenza, an employee of the Association.
He inquired of Miss Vasquenza if the 15-question test was
an authorized test. After Fischer reconstructed what had
occurred, it became apparent that Epstein had given only
one page of a two-page CPR test which in fact contained a
total of 25 questions. Epstein had reproduced only the first
page of the test, thinking that it was the entire test. After
the error was discovered, Fischer mailed the entire test to
Epstein, who ultimately administered it to the seven
participants in the course who had taken the incomplete
one.
On April 29, Epstein reported Fischer's phone call to
Kagan. Kagan called Mears into his office about 5:30 p.m.
He told Mears that he was tired of Mears "undermining
the Company." He said to Mears that Mears had gone to
Fischer about the test and that Fischer had called about
the CPR course. Mears replied that he had nothing to do
with the CPR course, that Charlie (Epstein) had asked him
to help with the course, and that he had declined. Mears
denied making any complaint to the Heart Association or
to anyone else. He explained that he saw a 15-question test,
did not think it was proper because he had never seen such
a test before, and told Charlie Epstein about it. He merely
made an inquiry to Fischer to find out if the test was a
correct one. Kagan told him, "Well, you are stirring up all
this shit. I'm getting g.d. sick and tired of it. You are all
done tonight. I'm getting damned sick and tired of you
making assholes out of us.14 I'm the boss here and you guys
better remember it." On his way out the door, Mears called
Kagan an "asshole."
Kagan testified that he had originally determined to
suspend Mears, not to discharge him, but that when Mears
called him an asshole, he immediately changed his mind
and decided then to fire him. Kagan was an evasive,
forgetful, and unimpressive witness. I do not credit his
testimony. I believe that Mears' rejoinder to Kagan was
uttered after Kagan had discharged him. Sometime after
Mears' discharge, Kagan had a telephone conversation
with a competitor, Dick Meanny, the owner of L & M
Ambulance. Meanny asked Kagan's opinion about various
L & M employees and whether Kagan thought they might
be the kind who would start a union. Meanny specifically
asked Kagan whether he thought Mears had been involved
in any union activity when he was employed at Profession-
al. Kagan's reply was that Mears was a close friend of
Jacomini.
In the 30-day period between April 23 and May 23,
Jacomini continued his organizing effort, although he did
not come to the Weathersfield office in accordance with
Kagan's instructions. Kagan also gave instructions to other
employees that, if Jacomini should visit one of Respon-
dent's other ambulance stations, they were to call the
terminology, saying that they were not in fact "instructing" but were giving
a "demonstration" of CPR techniques to a home for the aged as a part of
Respondent's public relations program. Sometime later, Dr. James McGa-
hey, a physician active in the American Heart Association who was a
personal acquaintance of Mears, phoned Mears about the photo and asked
whether the pictured individuals were actually CPR instructors since he had
no record of their certifications. Mears repeated Kagan's statement that
there was simply a rmixup in terminology and that the individuals were not
in fact giving CPR instruction but were merely demonstrating techniques.
This explanation appeared to satisfy Dr. McGahey.
1146
PROFESSIONAL AMBULANCE SERVICE
police. During his period of service with the Company,
Jacomini had been issued a two-way radio which was
tuned to Respondent's transmission band. This radio was
mounted in Jacomini's personal vehicle. Over a period of
about 10 days, Respondent occasionally experienced some
difficulty in transmission which it attributed to so-called
"open carriers" on their frequency. By open carriers it is
meant that someone was pressing down the button to send
a message on the Professional Ambulance frequency
without speaking, thus leaving the transmission open so
that no other messages could be sent or received between
the dispatcher and the ambulances. Respondent checked
into the question and could not trace the open carrier to
any of its ambulances, all of which contain two-way radios,
so he concluded that Jacomini was harassing the Company
by attempting to interrupt its radio transmission. He sent a
message to Jacomini to "bring in the radio." Bringing in
the radio meant, of necessity, going to a garage or an
electrician to have the radio dismounted from Jacomini's
car. Jacomini was slow about complying so Kagan made a
complaint to the police that Jacomini had stolen company
property. Jacomini eventually went to a garage utilized by
the Company and had the radio removed.
On May 23, Jacomini returned to the Company office to
go back to work. When Kagan saw him, he took out a tape
recorder and asked Jacomini what he wanted. He also
asked whether the radio was back in company possession.
When Jacomini replied that it was, Kagan told him he was
fired. Jacomini asked why and Kagan said for disobeying
an order. Jacomini said he wanted a statement to that
effect in writing. Kagan told him he did not have to give
him anything in writing. The next time that Jacomini
returned to company premises was to act as the union
observer at the June 8 election.
The fourth discriminatee named in the consolidated
complaint is August Schwartzkopf. He began to work for
Respondent in December 1974. His last day of employ-
ment was June 8. He was signer of an IAM card. He also
wrote a personal letter to every unit voter asking them to
vote for the Union. On March 22, just after the meeting
between Flemke and various employees in the company
garage, Kagan asked Schwartzkopf to come into his office.
He told Schwartzkopf that he was getting into trouble by
listening to Jacomini and that Jacomini was leading him
around by the nose.
On the following day Flemke's March 22 meeting with
employees, Kagan called employee Thomas Daveron into
his office and closed the door. He pointed his finger at
Daveron and said that he better not find out that Daveron
was an instigator of union activity. Kagan said he knew the
day of the Union was coming but he would rather have
people he could deal with rather than people who used
scare tactics.
About 6 weeks later, on May 12, Kagan and Schwartz-
kopf had another discussion in Kagan's office. This time
the initial subject of the discussion was a complaint which
a customer had made against Schwartzkopf for the
improper switching of a surgical collar. During the course
of the discussion, Kagan told Schwartzkopf that he was
getting into a lot of hot water by listening to Jacomini
because Jacomini was the wrong person to listen to. He
went on to say that if Schwartzkopf should lose his job at
Professional, he would find it difficult to get another one
because of his union activities. Kagan told him that he
knew that Schwartzkopf had passed out union cards to
employees of other companies and specified that a Mr.
Topa of Trinty Ambulance had called Kagan to report that
one of his employees had received a union card from
Schwartzkopf. Kagan mentioned that Mears had been
discharged because he was trying to undermine the
Company and offered to bet Schwartzkopf that Mears
would be unable to get a job with another ambulance
company when he applied. He then repeated that if
Schwartzkopf were to be fired he would find himself in the
same position because of all of the leafletting and other
union activities that he had been involved in. Later on, he
told Schwartzkopf that maybe he could get a job in
Colorado since it was far enough away that they might not
have heard of his union activities.
Sometime during the month of May, Kagan had
occasion to speak with employee Dennis Mitchell in his
office. Mitchell's girl friend was employed by the IAM at
its union hall in East Hartford and Kagan asked him if she
was the one who typed up the union flyers which were
being used in the Professional Amublance campaign.
Mitchell said that she was not. Kagan observed during the
course of the conversation that he would fight the Union
because he did not want it to come into Professional
Ambulance.
During the month of May, Kagan had another conversa-
tion with Daveron in his office. Some other employees and
supervisors were present. Kagan mentioned that union
leaflets had been found in company ambulances and asked
Daveron if he knew about them. Daveron said he was
aware of their presence. Kagan asked where they were
coming from. Daveron replied that he did not know.
Kagan said they were showing up in hospital emergency
rooms and that hospitals were calling him and complain-
ing. He also said that TV station WFSB had called him
about the union campaign and he gave them Jacomini's
address. He said that it was because of this leaflet that
Jacomini was out of a job and he would not stand for any
more "blasphemous" remarks about the Company or
himself in leaflets.
The election was held on Tuesday, June 8, between the
hours of 10:30 a.m. and noon. Just before the election,
Respondent distributed paychecks to those who were
about to vote. A great deal of conflicting testimony may be
found in the record concerning which was the normal
payday for drivers and other EMTs. A distillation of this
testimony leads me to conclude that Wednesday was the
normal company payday, that it frequently occurred that
checks were available and could be picked up by EMTs on
Tuesday afternoon or Tuesday evening, but that checks
were never available and distributed to employees on
Tuesday morning except on the occasion of the Board
election. One piece of employer campaign literature which
was obtained during the investigation of the Union's
objections was a company campaign leaflet which con-
tained a reproduction of the Board's official ballot. In the
box designed for a vote for neither union, the employer had
placed an X.
1147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The IAM lost the June 8 election by a vote of 13 to 2. No
votes were cast for the Teamsters. Two employees,
Schwartzkopf and his ambulance partner James Leonard,
did not get to vote. During the hours of the election they
were dispatched to answer various calls and were permitted
to return to the office about 11:50 a.m. When they arrived,
the polls had closed. Both were angry over this turn of
events and Schwartzkopf was quite vehement. He let
Kagan know of his displeasure at not being able to vote.
Kagan dispatched them to pick up a number of senior
citizens at Brittany Farms, a home for the elderly, and to
transport them to an art exhibit which was taking place at
Constitution Plaza in downtown Hartford. They arrived at
Brittany Farms about 1:30 p.m. and at Constitution Plaza
about 2 p.m. They were suppose to wait there to take the
patients and their nurses back to the home. While at the
home and again while they were waiting, they let the air
conditioning unit run as the motor was idling. As a result,
the ambulance began to heat up. They reported this
malfunctioning by radio to the dispatcher and were told
that a repair truck from Earl's Sunoco Station would be on
its way. While waiting for the patients to return from the
art show, Leonard remained in the ambulance while
Schwartzkopf went across the street to Zero's Cafe,
ostensibly to eat lunch. While at the Cafe, Schwartzkopf
phoned the Regional Office of the Board in Boston and
complained that he had been deprived of the right to vote
in the representation election. Schwartzkopf then returned
to the ambulance and told his partner that he was going to
make a further complaint about the election procedure to
Television Station WFSB (Channel 3), whose office was
located about a block away. Schwartzkopf went to the
Channel Three office and spoke to a reporter about the
election, claiming that he was deprived of a chance to vote.
While at the television station, he phoned the Hartford
Courant office and spoke to a newspaper reporter to whom
he voiced the same complaint.
When he returned to the ambulance, the tow truck from
Earl's Sunoco was about ready to leave. The only repair
necessitated by the overheating was to add some water to
the ambulance radiator. Kagan had arrived on the scene
and was just leaving as Schwartzkopf was returning. The
patients from Brittany Farms had completed their tour of
the art festival and were waiting to be transported back to
the home. Schwartzkopf and Leonard returned their
passengers to the home and drove to the Weathersfield
office.
Meanwhile, a reporter from the Hartford Courant had
phoned Kagan to get his version of the story which
Schwartzkopf had given. When Leonard and Schwartzkopf
returned to the office they were directed to make out
separate written incident reports concerning the break-
down at Constitution Plaza and the delay in returning
patients to Brittany Farms. Kagan read the reports and
interviewed both employees separately. Leonard tried to
put the blame for the breakdown and delay on Schwartz-
kopf. He also said it was a hot day, he was quite tired, and
Is In his testimony, Kagan noted that Davis had previously done a series
of telecasts about the ambulance industry in Hartford in which the industry
in general and Professional Ambulance in particular came off badly. He
stated that he knew that Davis "would never do us any good."
he asked Kagan to go easy on him. Kagan asked Leonard
in the course of the interviews if he had spoken with a
reporter at the Hartford Courant and Leonard replied that
he had not done so.
Kagan interviewed Schwartzkopf. Schwartzkopf was still
angry because he did not get to vote. Kagan was angry
because the passengers from Brittany Farms had to wait in
the sun to be transported back to the home and because
Schwartzkopf had gone to the news media. Kagan asked
Schwartzkopf how his vote could have changed the results
since the Union had lost by such a wide margin. During the
course of the conversation, Schwartzkopf admitted that he
had talked with a Courant reporter and also with Brad
Davis, a reporter for Channel 3.15 Kagan said that if it was
the Union's own fault that it lost the election because it
challenged so many ballots. He told Schwartzkopf that he
had made a lot of enemies among the employees because
he had written them individual letters soliciting votes for
the Union. Schwartzkopf replied that he liked working at
Professional Ambulance but felt employees needed a union
to protect their rights. Kagan asked Schwartzkopf to resign
because he had left the patients waiting in the sun before he
returned to the ambulance and because he had made an
unauthorized statement to the news media. Schwartzkopf
refused. I credit Schwartzkopf's statement that Kagan told
him to "go home. I'll call you in a few days and let you
know what I'm going to do." 16
The following day, the Hartford Courant ran a news
article about the election dispute. The article recited the
complaint that Schwartzkopf and Leonard were kept out
on the road until 11:49 a.m. and that they were unable to
vote because they could not get back to the office until
after the 12:00 closing of the polls. Kagan was quoted as
saying that he had wanted a longer period for the polls to
be open but the firm had experienced a busy morning and
had one ambulance out of service because some employees
were attending a class. Kagan was also quoted as saying
that the votes of the two attendants would not have
affected the outcome and that they had "no beef."
On Monday, June 14, Schwartzkopf returned to the
office to see about his job. He met Epstein, who told him
that the company officials thought he had quit. Epstein
suggested that Schwartzkopf speak to Kagan. Schwartz-
kopf returned the next day and spoke to Kagan. Kagan
told him that when he failed to call the day after his
suspension, as he was supposed to do, his job was filled by
another employee because they all thought he had quit.
Schwartzkopf protested and said he had no intention of
quitting. The two men then had a brief discussion about
Jacomini. Kagan stated that Jacomini had caused all of
Schwartzkopf's problems and then told him, "You're
through. You quit."
'6 Kagan testified that he told Schwartzkopf to go home and to call him
the following morning to find out what was to become of his employment
status. Kagan also testified that he really did not care whether Schwartzkopf
ever called back.
1148
PROFESSIONAL AMBULANCE SERVICE
C. Analysis and Conclusions
1. Independent 8(a)(l) violations and other
statements evidencing animus
Respondent violated Section 8(a)(1) of the Act by the
following acts and conduct recited above:
1. Kagan's statement to Jacomini on March 22,
following the Teamsters meeting, that Jacomini had done
"a good job of organizing that other rinky-dink union"
creates an impression of surveillance of union activities
which interferes with the Section 7 rights of employees.
2. Kagan's statement to Jacomini in April, shortly
before the representation case hearing in which he called
Jacomini an opprobrious name and told him "because of
you I have to go to Boston on this union bullshit" is a
hostile downgrading and disparagement of an employees'
union activities which also creates an impression of
surveillance of union activities.
3. Kagan's instructions to Jacomini, Schwartzkopf, and
other employees to stay out of the organizing drive is
unlawful interference with the exercise of protected rights.
4. Kagan's statement to Jacomini, while riding with
him to an EMT refresher course, in which he asked
Jacomini what he had heard about the union is, under the
circumstances, coercive interrogation. Kagan's statement
that he would beat the union one way or the other contains
an implied threat of reprisal to Respondent's employees.
5. Kagan's statement to Jacomini on the evening of
April 21, while riding to a training course with him, that if
he did not show up for work instead of attending the R-
case hearing, he would be suspended or fired, that he
would suffer a 50-cent-an-hour pay cut, and would be
assigned to a less desirable section of Hartford, is an
obvious threat of reprisal.
6. When, on April 23, Kagan suspended Jacomini,
Kagan stated that Jacomini would never get a job in the
commercial ambulance business in the Hartford area. By
this statement Kagan threatened to blacklist Jacomini in
violation of Section 8(aX I) of the Act.
7. Kagan also threatened Jacomini that, if he got one
letter from the Labor Board concerning the suspension, he
would tell Jacomini's wife he "was messing around." A
threat to embarass an employee and cause him domestic
discord for exercising his right to file charges under the Act
violates Section 8(a)(1).
8. Kagan's question to Melnyk on May 14, shortly
before he fired Melnyk, asking him if he had signed a card,
constitutes coercive interrogation.
9. Kagan's threat to discharge Melnyk and another
employee, Meanny Marcello, if they did not stop "under-
mining" the Company violates Section 8(a)(1).
10. Kagan's questioning of Melnyk as to whether he
had met with a Board agent to give an affidavit to support
the charge filed by Jacomini is coercive and violates
Section 8(a)(1) of the Act.
II. Appleton's statement to Melnyk, after Kagan
discharged him, that he should not give a statement to a
Board agent and that doing so was like sticking a knife into
Kagan, violated Section 8(a) 1) of the Act.
12. Kagan's statement to Mears on April 23 that he
knew he was in the middle of "this union shit" unlawfully
created an impression of surveillance. The threat then
uttered to Mears to "fire your ass" if Mears continued to
support the union is an obvious violation.
13. Kagan's further statement to Mears when he fired
him that he was "stirring up this union shit" and that he
was "g.d. tired of it" did, in context of a terminal interview,
constitute an unlawful threat and an unlawful interference
with union activities.
14. Kagan's telephone statement to Manny, the owner
of L & M Ambulance, in response to an inquiry by Manny
about Mears' union activities, that Mears was a close friend
of Jacomini, meant that Mears was a union activist. This
statement amounts to an attempt to blacklist Mears in
violation of the Act.
15. Kagan's statement to Schwartzkopf on March 22
that he was "getting into trouble by listening to Jacomini"
is a threat aimed at discouraging Schwartzkoprs union
activities.
16. Kagan's statements to Schwartzkopf in his office in
May are unlawful threats to blacklist. His statement that he
knew that Schwartzkopf was passing out cards to employ-
ees of other companies unlawfully created an impression of
surveillance of union activities.
17. Kagan's statement to Daveron on March 23 that he
would fire him if he found that he was an instigator of
union activity is also an obvious violation of the Act.
18. Kagan's inquiry to Mitchell sometime during the
month of May as to whether his girl friend typed up certain
union progaganda is unlawful interrogation.
19. Kagan's inquiry in May to Daveron as to the source
of union leaflets which are appearing in company ambu-
lances is coercive interrogation.
20. Kagan's statement on the same occasion to Daver-
on that Jacomini lost his job because he distributed such
leaflets is an implied threat which violated the Act.
21. Kagan's questions to Schwartzkopf about
Schwartzkopfs action in going to the media to protest his
inability to vote at the election, preceding as it did the
discharge of Schwartzkopf, is interrogation which violates
Section 8(a)(1).
22. Kagan's statement to Schwartzkopf on June 15
when he flatly told him he was through, to the effect that
Jacomini was the cause of all of Schwartzkopfs problems,
is an interference with Jacomini's and Schwartzkopfs
union activities which violates the Act.
On April 22, Kagan had an extensive conversation with
Melnyk concerning the union compaign as the two of them
rode from Hartford to Boston and back. Melnyk was at
that time a supervisor. Hence statements made by Kagan
to him which might, in another context, be deemed
violations do not take on this character in the absence of
evidence that they were repeated by Melnyk to persons
enjoying the protection of the Act. There is no such
evidence here. However, such statements are evidence of
Kagan's animus toward union organization and serve to
explain other actions undertaken by him regarding employ-
ees who did come under the protection of Section 7. Hence,
when Kagan asked Melnyk if he had signed a card, when
he stated that he would refuse to bargain with the union,
when he uttered a threat to reduce working hours and
employee pay if the union came in, and when he said he
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
saw a list of employees who had signed cards at the R-case
hearing in Boston, Kagan was demonstrating both compa-
ny knowledge and personal animus which is relevant in
deciding other portions of the consolidated complaint
herein.
Among the many allegations of independent 8(a)(1)
violations contained in the consolidated complaint is a
count which states that Respondent violated the Act by
threatening reprisal for union activities by reporting
Jacomini for collecting unemployment compensation while
Jacomini was actually employed by Respondent. There is
no doubt that Jacomini was guilty of this act and that
Kagan knew about it for quite a while. Moreover, there is
no doubt that on two occasions - on the night he learned
that Jacomini was going to Boston and 2 days later when
he suspended him - that Kagan threatened to turn him in
to state authorities to get even with Jacomini for the latter's
union activities. I do not regard such threats as a violation
of the Act. Cheating a public agency out of public funds by
unlawfully collecting unemployment compensation is not
protected activity; it is criminal activity. Kagan had an
obligation under the law to report such activity to proper
authorities when and if he knew about it and would in all
probability be liable himself for committing a crime if he
withheld such information. The fact that Kagan threatened
to do what he was supposed to do in order to take reprisal
against Jacomini for the latter's union activities in no way
adds or detracts from Kagan's legal obligation to report
Jacomini's activities to proper state authorities. As the
Supreme Court pointed out in N.L.R.B. v. Burnup and
Sims, Inc., 379 U.S. 21 (1964), motive is normally
immaterial in determining whether or not a violation of
Section 8(a)(l) has occurred. It would be poor public policy
for an agency of the Federal government to countenance
Jacomini's activity in unlawfully collecting unemployment
compensation, or to discourage or forbid anyone from
reporting this fact to appropriate state officials for any
reason. Accordingly, I will dismiss section 8(h) of the
consolidated complaint.
2. Unlawful assistance by Respondent to the
Teamsters
This case presents the somewhat unusual allegation that
an employer unlawfully assisted a certified union in
violation of Section 8(a)(2) of the Act. The certification in
question was issued on March 1, 1974, following a Board
election in which the Teamsters were selected as bargaining
representative. The certification is conclusively presumed
to be valid within a year thereafter, in the absence of
unusual circumstances, and carries with it a rebuttable
presumption of validity thereafter. The uncontradicted
evidence in this record is that, for some 7 or 8 months
following the certification, the Teamsters held collective-
bargaining sessions with Respondent but did not obtain a
contract. When its efforts appeared to be going nowhere,
employee interest waned and the Teamsters ceased to
bargain any further. No contract was ever concluded with
Respondent, no grievances have been processed by the
Teamsters with Respondent, and, until the IAM began
organizing in the spring of 1976, no interest was shown by
the Teamsters in performing any obligations incumbent
upon a certified bargaining agent. As of March 22, 1976,
when Teamster Secretary-Treasurer Flemke met with a
group of Respondent's ambulance drivers and helpers, the
Teamsters held stale designation cards signed by only four
employees in a unit which then had 21 members. These
individuals had also signed current IAM cards. On the
strength of such a showing of interest by the Teamsters, the
Board could neither direct an election nor issue a
bargaining order on their behalf. Hence it is clear that by
March 1976, the Teamsters had forfeited any standing they
had under their 2-year-old certification because they had in
fact abandoned the bargaining unit to which it applied.
The effort to bring the Teamsters back into the picture
sprang first from Kagan, not from the union or the
employees. Had Kagan not informed them of the IAM
demand letter, it is quite conceivable that the Teamsters
might never had known of the IAM organizing effort at
Professional Ambulance. However, as he indicated on
more than one occasion to various employees, Kagan
preferred that his employees be represented by a union he
felt he could deal with, meaning the Teamsters. According-
ly, he actually went to Flemke for advice and assistance in
responding to the IAM letter, agreed to Flemke's request to
come to the company office and speak to employees, and
notified some of his employees to meet with Flemke on
company property. Some of those participated in the
meeting were actually being paid for their time during the
meeting.
Kagan went beyond merely making his preference for
unions known among his employees. He spoke with
Jacomini, whom he correctly regarded as the principal
IAM organizer, and suggested to Jacomini that he sign up
the employees, most of whom had recently executed IAM
cards, for the Teamsters, thereby getting "the show on the
road." Jacomini declined the suggestion just as other
employees had declined Flemke's overture at the March 22
meeting. Section 8(a)(2) of the Act prohibits an employer
from dominating or interfering with the formation or
administration of any labor organization. One of the classic
violations of this Section is assistance given to a favored
union by an employer in the solicitation of union
membership applications upon which the labor organiza-
tion may then predicate its claim to be the majority
representative of the work force. Park Inn Hotel, Inc., and
115-02 Ocean Promenade, Inc., 139 NLRB 699 (1962);
Prospect Gardens of Norwalk, Inc., 177 NLRB 136 (1969);
Senco, Inc., 177 NLRB 882 (1969); Crown Discount
Department Stores, et. al, 172 NLRB 934 (1968); Columbus
Janitor Service, Division of Servisco, 191 NLRB 902 (1971);
Howard Creations, Inc., 212 NLRB 179 (1974); N.L.R.B. v.
Midtown Service Co., Inc., 425 F.2d 665 (C.A. 2, 1970);
N.L.R.B. v. A&S Electronic Die Corp. and A&S Steel Rule
Die Corp., 423 F.2d 218 (C.A. 2, 1970), cert. denied 400
U.S. 823. In making continuous efforts outlined above to
arrange a shotgun wedding between his employees and a
union he felt he could deal with, Respondent thereby
violated the provision of Section 8(a)(2) of the Act which
forbids employer assistance in the formation of a labor
organization. I so find and conclude.
1150
PROFESSIONAL AMBULANCE SERVICE
3. The discharges of the four named
discriminatees
The undisputed facts found above indicate that Alan
Jacomini was in fact the principal in-house organizer for
the IAM and that he was regarded as such by Kagan. The
record also establishes that Kagan repeatedly berated
Jacomini for his efforts on behalf of a "rinky-dink" union
and accused Jacomini of undermining the company by
engaging in union activities. Jacomini was admittedly
suspended on April 23 because he attended a representa-
tion case hearing in Boston after having been told by
Kagan that he could not attend. His right to attend and
participate in such proceedings, free from prior threats and
posthearing discrimination, is well established. E. H.
Limited, d/b/a Earringhouse Imports, 227 NLRB 1107
(1977); Firestone Steel Products Company,, a Division of
Firestone Tire and Rubber Company, 228 NLRB 1040
(1977). Kagan's attempt to establish a business justification
for keeping Jacomini in Hartford in order to operate the
Company while Kagan and Melnyk were in Boston is
without substance. Corroborated evidence clearly supports
the finding that Kagan gave Jacomini the entire day off on
April 22 when he was under the misimpression that
Jacomini was intending to engage in illicit activity, and
found Jacomini's presence at the office necessary only
when he learned that Jacomini actually needed the time off
to participate in a Board proceeding.' 7
During the period of his suspension, Jacomini filed the
initial charge in Case I-CA-I 11717. He also continued to
disseminate leaflets on behalf of the IAM. Kagan knew
about the Board investigation of Jacomini's case early in
May and discussed it with Melnyk on the occasion of
Melnyk's discharge. Kagan also knew that Jacomini was
putting out union leaflets in hospitals and company
ambulances and complained bitterly about this activity to
other employees. On one occasion he stated to employee
Daveron sometime in May that the reason Jacomini was
out of a job was because he was circulating "blasphemous"
and slanderous leaflets about the Company and about
Kagan. In light of these statements, Kagan's contention
that he fired Jacomini on May 23 for disobeying an order
to turn in company property during his suspension is
wholly pretextual. I find that Respondent herein discrimi-
natorily suspended Jacomini on April 23 because of his
union activities and because he gave testimony under the
Act, thereby violating Section 8(a)(3) and (4) of the Act,
and that it fired Jacomini on May 23 in violation of the
same sections of the Act.
4. The discharge of Walter Melnyk
There is no dispute that, as of April 22, when Melnyk
testified on behalf of Respondent at the representation
hearing in Boston, he was a supervisor, although he barely
met the criteria set forth in the Act since he was, in effect,
'7 There is also ample testimony in the record that there was a standard
company practice to grant employees time off if they obtained a substitute.
On April 22. Jacomini had gotten Clark Woods to cover for him.
iR Alamo Express, Inc., and Alamo Cartage Compan}' 127 NLRB 1203
(1960); Miami Coca Cola Bottling Company doing business as Key West Coca
Cola Bottling Compan},. 140 NLRB 1359 (1963); Golub, Murray, Sel".vn
Golub. and Albert Golub d/bha Golub Bros. Concessions. 140 NLRB 120
the number two man in a one-man show. The Regional
Director's Decision and Direction of Election, based upon
testimony given on that day, found him to be a supervisor.
On May 14, 3 weeks and I day after this hearing, Melnyk
was discharged. The fact surrounding Melnyk's discharge
clearly establish that it was prompted by Melnyk's union
activities and, in particular, by Melnyk's action in meeting
with a Board agent to give an affidavit in support of the
charge which had been lodged respecting Jacomini's initial
suspension. Indeed, Kagan admits that Melnyk was fired
for this reason.
During the trip to Boston in April, Kagan asked Melnyk
if he had signed a union card and received an affirmative
answer. On the ride home, Kagan asked Melnyk why he
had signed a card and received a detailed explanation of
reasons. Within a few days thereafter, Kagan transferred
Melnyk from Weathersfield to New Britain in order to
keep him out of trouble. Jacomini's suspension, Mears'
discharge which is discussed later, and Melnyk's banish-
ment to New Britain, all of which took place in a week's
time, did not stem from the IAM organizing campaign.
Melnyk spent 3 weeks in New Britain with Annino
soliciting business to support Kagan's decision to establish
an ambulance station in this community. On the afternoon
of May 14, Melnyk rode back to Weathersfield with
Kagan. During the course of the ride, Kagan again
interrogated Melnyk about his union sympathies. When,
after close questioning, Melnyk admitted giving a state-
ment in the course of the investigation of the Jacomini
case, Kagan told him that this was the last straw and fired
him. Company counsel confirmed the discharge the
following day by saying to Melnyk that by cooperating in
the investigation he had stuck a knife into the back of his
patron and benefactor.
Such facts would normally make out a clear case of
discriminatory discharge. Respondent defends against the
conclusion flowing from these facts by claiming that
Melnyk did not enjoy the protection of the Act because, on
May 14, he was a supervisor and not a rank-and-file
employee. Such a defense misconceives both the law and
the facts of this case. Beginning with Better Monkey Grip
Company 115 NLRB 1170 (1956), enfd. 243 F.2d 836 (C.A.
5, 1957), cert. denied 353 U.S. 864, the Board has held in a
consistent line of cases Is that an employer violates Section
8(a)(1) of the Act when it discharges or otherwise
discriminates against a supervisor for union-related consid-
erations or because he has given testimony under the Act,
not because there is an interference with the rights of the
supervisor but because fallout from such activity has the
necessary and inevitable effect of coercing others who do
enjoy the protection of the Act. The only issue presented
here is whether Melnyk's discharge violated Section 8(a)( )
or whether, in the 3 weeks preceding his discharge, he had
been stripped of the substance of supervisory authority so
that the discharge violated Section 8(aX3) and (4).
(1963): Oil City Brass Works. Inc., 147 NLRB 627 (1964); Ideal Baking
Company of Tennessee, Inc., 143 NLRB 546 (1963); Dal-Ter Optical
Companv. Inc., 137 NLRB 1782 (1962); Fairview Nursing Home. 202 NLRB
318 ( 1973); Carter Lumber Inc., 207 NLRB 391 (1973); VADA of Oklahoma,
Inc.. 216 NLRB 750 (1975): Donelson Packing Co., Inc and Riegal Provision
Companv. 220 NLRB 1043 (1975): Buddies Super Markets,. 223 NLRB 950
(1976).
1151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During his 3-week exile in New Britain, Melnyk retained
the title of manager but there is no credible evidence that
he exercised the function of manager. The Regional
Director's decision predicated a finding of supervisory
status on the fact that on occasion Melnyk made recom-
mendations to Kagan to hire and fire employees and made
effective recommendations to mete out discipline. There is
no evidence that he made any such recommendations
during the period of time in question. He spent almost all
of his time in New Britain, going with Annino from place
to place to solicit customers and running an occasional
ambulance call. Melnyk thought that he was still the
manager but had no time to perform the various adminis-
trative chores at Weathersfield which he formerly had.
Such functions were given to his eventual replacement,
Epstein, or to a newly designated assistant manager, JoAnn
Smith, who was in essence the dispatcher. Epstein was
hired coincidentally with Melnyk's transfer and began
working into the position immediately. In his testimony,
Epstein admitted that he was filling in for Melnyk during
the 3-week period here in question. Based upon these
factors, most important of which is the fact that Melnyk
did not and could not have exercised any supervisory
functions in the post of overall manager of the Company
while he was detailed to drum up business in New Britain, I
conclude that Melnyk was a rank-and-file employee at the
time of his discharge, despite the retention of the title of
manager, and that his discharge violated Section 8(a)3)
and (4) of the Act.
5. The discharge of Dennis C. Mears
Mears was a part-time employee of Respondent. Within
a week preceding his discharge, Mears was accused by
Kagan of being "in the middle of this union shit" and of
being a friend of the principal organizer, Alan Jacomini.
He had also been threatened with discharge for engaging in
union activities. In light of the factors present herein -
collateral evidence of animus, company knowledge of
Mears' sentiments, and a prior threat to discharge him for
union activities - it is quite plain that the actual discharge
on April 29 was merely a final episode which had been
foreshadowed by statements which shortly preceded it.
Kagan's defense in the Mears' case is that he had
intended to suspend Mears because he was mad at him for
reporting the deficiency to the CPR test administered by
Epstein to the Heart Association rather than to Kagan. He
further contends that, during the course of the discussion
with Mears, Mears called him an opprobrious name which
insult then prompted him to revise his plan and change the
suspension into a discharge. Mears was a licensed CPR
instructor, as was Epstein. The course of instruction
involved in this dispute was arranged by either the Heart
Association or the Red Cross but was administered in
conjunction with a state certification program which is
required in order to assure the public that patients are
transported in ambulances manned by persons who are
trained in current techniques of emergency patient care.
While the CPR course given on Sunday, April 25, at the
Professional ambulance premises was given only to
Professional employees, it was not and could not have been
given under the auspices of Respondent. Respondent's
employees, including Kagan, were the recipients of this
instruction. In taking the test which was administered at
the conclusion of the evening, they were being certified by
outside authority as being competent to administer cardio-
pulmonary resuscitation to prospective customers. Kagan
was among those who took the course in order to be
recertified as an EMT in the EMT refresher course. There
is no dispute that Epstein made a mistake in administering
a 15-question test rather than the prescribed 25-question
test. It is also true that any recertification based upon the
defective examination would likewise be faulty and
suspect. The responsibility for the proper administration of
the recertification program did not devolve upon Kagan or
Respondent's corporation but upon the public authority
and upon the private groups which were responsible for the
program in the first place. As Fischer, a neutral witness,
pointed out, Mears did not complain either to him or to the
Heart Association about Epstein's testing procedure. He
merely made an inquiry to Fischer about the correctness of
an examination with which he, as an experienced CPR
instructor was unfamiliar. Fischer, who was responsible for
the program, took it from there.
It is absurd to suggest that instead of speaking to Fischer
Mears should have inquired about a deficiency in a test to
Kagan or reported it to Kagan rather than to Fischer.
Kagan was a pupil taking the test, not an instructor or
administrator having any responsibility for its correctness.
Kagan had no knowledge of the propriety or correctness of
the examination and, as a person whose EMT certificate
depended in part upon passing the examination, had little
or no incentive to object to its completeness. It would have
been nonsensical for Mears to have spoken to Kagan about
this matter and it is equally absurd for Kagan to suggest
that Mears was in any way remiss in his obligation to his
employer when he did not do so. Mears did voice his
misgivings about the test to Epstein on the night of the
examination but received no satisfaction. Having taken the
problem that far within the Company, Mears could
logically have gone no farther. When Kagan faulted him
for going outside the company with his "complaint," he
was merely inventing an excuse, and an untenable one at
that, for eliminating Mears from the payroll. The desire to
rid the company of one more union adherent was his real
reason for moving against Mears. Kagan admitted as much
a conversation with Schwartzkopf some 3 weeks later. As
such, his action in firing Mears violated Section 8(aX)() and
(3) of the Act.
I have found as a fact that, on his way out of Kagan's
office, after he had been discharged, Mears called Kagan
an "asshole." The record is replete with evidence from both
sides that the use of profanity and vulgarity among
Respondent's employees, including Kagan, was wide-
spread and commonplace, although company witnesses
averred that employees never called Kagan obscene names
in anger, only in jest. At the time Mears uttered his parting
shot at Kagan, he was no longer an employee but a
discriminatee. Regardless of that fact, the use of such
language in the course of a terminal interview, when seized
upon by an employer as the justification for termination, is
usually viewed as pretextual, especially where such lan-
guage is part of the normal vocabulary of the shop.
1152
PROFESSIONAL AMBULANCE SERVICE
Finesilver Manufacturing Company, 216 NLRB 644 (1975):
The Contract Knitter, Inc., 220 NLRB 558 (1975). I regard it
as such in this context.
6. The termination of August Schwartzkopf
Respondent denies that Schwartzkopf was fired for any
reason and claims that he quit his employment. The facts
are quite to the contrary. Schwartzkopf was an active and
vocal union adherent. During the course of the organizing
campaign, he had been warned about his union activities
and about his close association with the Union's lead
organizer, Jacomini. Indeed, during their final conversa-
tion on June 15, Kagan tried to lay off Schwartzkopf's
predicament upon Jacomini, saying that it was Jacomini's
fault that Schwartzkopf had been mislead to the latter's
detriment. Kagan admits that he suspended Schwartzkopf
on June 8, in part, for the latter's protected activity of
voicing a complaint in the news media concerning the
conduct of the election and Kagan's asserted role in it.
Kagan also admitted that, when he told Schwartzkopf to go
home on June 8, he really did not care whether Schwartz-
kopf ever came back. 19
At no time did Schwartzkopf ever resign. Kagan sought
to treat Schwartzkopfs absence from the premises as
tantamount to a resignation and told him when he
protested that, whether he quit or resigned, he was through.
It is clear that Schwartzkopfs termination was effectuated
by Kagan, not by the protesting employee. I have credited
Schwartzkopf's testimony that, on June 8, he was told to
await Kagan's call, not that he was supposed to initiate a
call to Kagan. In light of this state of the record, when
Kagan terminated him for doing just what he was told to
do, namely to stay away until he was contacted, Kagan was
looking for a paper thin excuse for removing a vocal union
adherent who had caused him some adverse publicity in
connection with the representation election. In Kagan's
lexicon of terms, suspension is often synonymous with
discharge. When he sent Schwartzkopf home on June 8, he
had no intention of ever employing him again. According-
ly, I conclude that he discharged Schwartzkopf on June 8
because of the latter's union activities and protected
activities and thereby violated Section 8(a)(1) and (3) of the
Act.
19 In a second pretrial statement, dated July 19, 1976, which is in
evidence in this case, Kagan stated: "I had pretty well decided to fire
Schwartzkopf on the day of the election because of his action in being late
and because of what he had said to the newspapers-the reason I told him
to discuss it with me the next morning is because I needed to deal with the
papers and the TV that afternoon and didn't need any further aggravations
dealing with him."
20 One event among Respondent's preelection activities requires the
setting aside of the June 8 election quite apart from any unfair labor
practices which were committed. I refer to Respondent's campaign literature
which contains a reproduction of the Board's official ballot in the form of a
sample ballot on which Respondent marked an X in the "Neither Union"
column. It has long been the Board's practice to set aside an election in
which the Board's official ballot is misused in this manner. Allied Electric
Products. Inc., 109 NLRB 1270 (1954). There is nothing in the recent
7. The Respondent's refusal to bargain with the
IAM
Although certain references were made in Respondent's
brief which questioned the IAM's majority status, Respon-
dent stipulated at the hearing that, as of March 22, 1976,
the IAM held signed designation cards from 18 employees
in a bargaining unit composed of 21 persons. It follows
inescapably that the IAM was majority representative of all
of Respondent's unit employees as of that date. It was on
that date that Kagan began to embark upon a course of
illegal conduct aimed at destroying the IAM's majority
status. First, he invited a rival union to his place of business
and assisted it in organizing employees who had already
made a commitment to the IAM. He repeatedly interrogat-
ed employees, threatened them with demotion, discharge,
and blacklisting, and discharged four union adherents,
three of them before the June 8 election, and one more
within hours after polls closed. Kagan told employees that
he would beat the IAM one way or the other and in this he
made good his word. He also said he would refuse to
bargain with the IAM if it did come into the Company. It is
clear that his reckless and uninhibited course of conduct
made the running of a fair and free election on June 8
impossible 20, and has made the running of any fair and
free rerun election equally impossible. It is the latter test
which the Supreme Court used in Gissel to authorize the
setting aside of a representation election and the issuance
of a bargaining order. Bargaining orders have been used
many times since Gissel by the Board and the courts2 ' to
remedy unfair labor practices such as the ones found
herein and I recommend it in this instance. As Respondent
embarked upon the course of conduct aimed at destroying
the Union's majority when it staged a meeting between its
employees and a rival union on March 22, a bargaining
order should date from that day.22
In its brief, Respondent invoked the Midwest Piping
doctrine23, claiming it should not be directed to bargain
with either union because it was faced with rival demands
for recognition from competing labor organizations. The
contention is without merit. The Midwest Piping doctrine
does not apply where "the rival claim and petition does not
raise a real representation question." Shea Chemical
Corporation, 121 NLRB 1027 at 1029 (1958). As discussed
above, with the showing of interest in the Teamsters'
possession on March 22, the Board could neither direct an
election nor issue a bargaining order. Moreover, Kagan
would not have been faced with any claim by the
Teamsters during this campaign had he not stimulated the
Shopping Kart Food Market, Inc., decision (228 NLRB 1311 (1977)) which
detracts from the Allied Electric doctrine.
21 See for example, Byrne Dairy Inc. v. N.LR.B., 431 F.2d 1363 (C.A. 2,
1970); N. LR.B. V. International Metal Specialities, Inc., 433 F.2d 870 (C.A.
2, 1970); N.LR. B. v. Marsellus Vault & Sales, Inc., 431 F.2d 933 (C.A. 2,
1970); MPC Restaurant Corp. and Hardwicke's Plum Ltd d/b/a Maxwell's
Plum v. N.LRB., 481 F.2d 75 (C.A. 2, 1973); N.LR.B. v. Scoler's
Incorporated 466 F.2d 1289 (C.A. 2, 1972); N.LR. B. v. Hendel Manufactur-
ing Company. Inc., 483 F.2d 350 (C.A. 2, 1973); N.LR.B v. V & H
Industries, Inc., 433 F.2d 9 (C.A. 2, 1970).
22 Trading Port. Inc., 219 NLRB 298 (1975); Herbert Kollen, d/b/a
Smithiown Nursing Home. Smith Senior Home. and Smithtown Lodge 228
NLRB 23 (1977).
21 Midsiest Piping and Supply Co.. Inc., 63 NLRB 1060 (1945).
1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters interest by his own initiative. Having invited the
Teamsters into the fray, Kagan cannot then avoid a
bargaining order running to the benefit of the IAM by
claiming the existence of rival demands for recognition.
On March 16, the IAM sent Kagan a demand letter to
which a reply has never been made. Such silence constitues
a refusal to bargain. In light of the other findings herein,
this demand and refusal are sufficient to support a finding
that Respondent herein violated Section 8(a)(l) and (5) of
the Act.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
I. Respondent Professional Ambulance Service, Inc., is
now and at all times material herein has been an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Teamsters Union Local 536, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and District No. 26,
International Association of Machinists and Aerospace
Workers, AFL-CIO, are, respectively, labor organizations
within the meaning of Section 2(5) of the Act.
3. All drivers, mechanics, dispatchers, emergency medi-
cal technicians, assistant managers, and area managers
employed at Respondent's Weathersfield, Hartfbrd, East
Hartford, West Hartford, and New Britain, Connecticut,
locations, excluding office clerical employees, professional
employees, watchmen, guards, and supervisors as defined
in the Act, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.
4. Since March 22, 1976, District No. 26, International
Association of Machinists and Aerospace Workers, AFL-
CIO, has been the exclusive representative of all employees
in the unit found appropriate in Conclusion of Law
Number 3 for purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By its refusal to bargain with District No. 26,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the duly designated majority
representative of its employees in the unit found appropri-
ate for collective bargaining in Conclusion of Law 3 above,
Respondent herein violated Section 8(aX5) of the Act.
6. By permitting representatives of Teamsters Union
Local 536, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, to solicit union memberships on company
premises from employees who were on company time in
order to defeat an organizing drive on the part of District
No. 26, International Association of Machinists and
Aerospace Workers, AFL-CIO, and by urging its employ-
ees to favor said Teamsters Union Local 536 and to enlist
the support of other employees for Teamsters Union Local
536, Respondent herein violated Section 8(a)(2) of the Act.
7. By suspending Alan Jacomini and by discharging
Walter Melnyk and Alan Jacomini because they filed
charges or gave testimony under the Act, Respondent
herein violated Section 8(aX4) of the Act.
8. By suspending Alan Jacomini and by discharging
Walter Melnyk. Dennis C. Mears, Alan Jacomini, and
August Schwartzkopf because of their union sentiments
and union activities, Respondent herein violated Section
8(a)(3) of the Act.
9. By the acts and conduct set forth above in Conclu-
sions of Law 5, 6, 7, and 8; by creating among employees
an impression that their union activities and the activities
of other employees were under company surveillance; by
instructing employees not to participate in union activities;
by coercively interrogating employees concerning their
union activities; by threatening to blacklist and attempting
to blacklist employees because of their union activities; by
threatening to cut the pay, transfer, and discharge
employees because they engaged in union or protected
concerted activities; and by threatening personal reprisal
against employees because of their union activities,
Respondent herein violated Section 8(a)(1) of the Act.
10. The aforesaid unfair labor practices have a close,
intimate, and substantial effect on the free flow of
commerce within the meaning of Sections 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent herein has engaged in
unfair labor practices, I will recommend that it be required
to cease and desist therefrom and to take certain affirma-
tive actions designed to effectuate the purposes and
policies of the Act. In addition to the Gissel remedy,
discussed above, I will recommend that Respondent be
required to cease giving assistance to the Teamsters. As the
unfair labor practices have been substantial and pervasive
and include discriminatory discharges, I will recommend a
so-called broad 8(a)(1) order designed to suppress any and
all violations of that section of the Act. J. C. Penney Co.,
Inc. (Store No. 1814), 172 NLRB 1279, fn. I (1968), Adam
and Eve Cosmetics, Inc., 218 NLRB 1317 (1975). This
recommended order will require that Respondent offer to
Alan Jacomini, Dennis C. Mears, Walter Melnyk, and
August Schwartzkopf full and immediate reinstatement to
their former or substantially equivalent positions, discharg-
ing if necessary persons hired in their places, and will also
require Respondent to make them whole for any loss of
earnings they have suffered because of the discrimination
practiced against them, to be computed in accordance with
the Woolworth formula 24 with interest thereon at 6 percent
per annum. I will also recommend that Respondent be
required to post the usual notice telling his employees of
their rights and the results of this case.
Upon the foregoing findings of fact, conclusions of law,
and pursuant to Section 10(c) of the Act, I make the
following recommended:
24 F W. Woolworh Company, 90 N LR B 289 (1950).
1154
PROFESSIONAL AMBULANCE SERVICE
ORDER 25
The Respondent, Professional Ambulance Service, Inc.,
Weathersfield, Connecticut, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
District No. 26, International Association of Machinists
and Aerospace Workers, AFL-CIO, as the duly designated
exclusive collective bargaining representative of all of the
Respondent's drivers, mechanics, dispatchers, emergency
medical technicians, assistant managers, and area manag-
ers employed at its Weathersfield, Hartford, East Hartford,
West Hartford, and New Britain, Connecticut, locations,
excluding office clerical employees, professional employ-
ees, watchmen, guards and supervisors as defined in the
Act.
(b) Assisting Teamsters Union Local 536, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, to become the
exclusive collective-bargaining representative of its em-
ployees.
(c) Discharging or suspending employees because they
have engaged in union activities or concerted protected
activities or because they have filed charges and given
testimony of the Act.
(d) Coercively interrogating employees concerning their
union activities or the union activities of other employees.
(e) Threatening or attempting to blacklist employees
because they have engaged in union activities.
(f) Threatening to cut pay, transfer, or discharge
employees because they have engaged in union activities or
have filed charges or given testimony under the Act.
(g) Threatening personal reprisal against employees
because of their union activities.
(h) Giving employees the impression that their union
activities and the union activities of other employees are
under surveillance.
(i) Instructing employees not to participate in union
activities.
(j) By any other means interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
:5 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 findings,
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 wavied for all purposes.
(a) Upon request, bargain collectively with District 26,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive collective-bargaining
representative of Respondent's drivers, mechanics, dis-
patchers, emergency medical technicians, assistant manag-
er, and area managers employed at its Weathersfield,
Hartford, East Hartford, West Hartford, and New Britain,
Connecticut, locations, excluding office clerical employees,
professional employees, watchmen, guards, and supervisors
as defined in the Act, and, if an agreement is reached,
embody the same in a signed written contract.
(b) Offer to Alan Jacomini, Walter Melnyk, Dennis C.
Mears, and August Schwartzkopf immediate and full
reinstatement to their former positions or, in the event that
their former positions no longer exist, to substantially
equivalent employment, without prejudice to their seniority
or other rights previously enjoyed, discharging if necessary
any employees who were hired in their places, and make
them whole for any losses they have suffered because of the
discrimination practiced against them, in the manner
described above in the section entitled "Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
and other records necessary to analyze and compute the
amount of backpay due under the terms of this Order.
(d) Post at its Weathersfield, Hartford, West Hartford,
East Hartford, and New Britain, places of business copies
of the attached notice marked "Appendix." 26 Copies of
said notice, on forms provided by the Director of Region I,
after being duly signed by representatives of Respondent,
shall be posted immediately upon receipt thereof and shall
be maintained by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Director for Region I, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
Insofar as the consolidated complaint alleges matters
which have not been found herein to be violations of the
Act, the consolidated complaint is hereby dismissed.
IT IS FURTHER ORDERED that the election in Case I-RC-
14382 be set aside and that the petition therein be, and it
hereby is, dismissed.
26 In the event that the Board's Order is enforced by a Judgement of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board."
1155