Professional Medical Transport, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 20, 2011

28-CA-023399 (N.L.R.B. Dec. 20, 2011)

JD(SF)-49-11
Tempe, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
PROFESSIONAL MEDICAL
TRANSPORT, INC.
and Cases 28-CA-023399
28-CA-060435
28-CA-061218
28-CA-062824
INDEPENDENT CERTIFIED EMERGENCY
PROFESSIONALS OF ARIZONA, LOCAL #1
Sandra Lyons, Atty., for the General Counsel.
Thomas J. Kennedy and Michael Grubbs, Attys., of Scottsdale,
Arizona, for the Respondent.
Joshua Barkely, President, Independent Certified Emergency
Professionals of Arizona, Local #1, of Mesa, Arizona,
for the Charging Party.
DECISION
I. Statement of the Case
LANA PARKE, Administrative Law Judge. Pursuant to charges filed by Independent
Certified Emergency Professionals of Arizona, Local #1 (the Union), the Regional Director for
Region 28 of the National Labor Relations Board (the Board) issued Order Further
Consolidating Cases, Second Consolidated Complaint and Notice of Hearing (the complaint) on
September 13, 2011.1 The complaint alleges that Professional Medical Transport, Inc. (the
Respondent or PMT) violated Section 8(a)(1), (3), (4), and (5) of the National Labor Relations
Act (the Act).2 This matter was tried in Phoenix, Arizona, on October 11-14.
II. Issues
A. Did the Respondent violate Section 8(a)(1) of the Act by the following conduct:
1. Threatening employees with the following:
a. discharge for engaging in union and concerted protected activities;
b. suspension for filing charges under the Act;
c. demotion for filing charges under the Act;
d. removal from assigned shifts for filing charges under the Act;

1 All dates herein are 2011, unless otherwise specified.
2 At the hearing, the General Counsel amended the complaint to reflect, at subpar. 8(o), the
date of April 11 as an additional instance of the 8(a)(5) violations alleged therein.
JD(SF)-49-11
2
e. unspecified reprisals for filing charges under the Act;
f. denial of requested union representation for investigatory interviews
unless contemplated discipline was greater than a verbal warning.
2. Creating an impression among its employees that their union and concerted5
protected activities were under surveillance.
3. Orally promulgating an overly-broad and discriminatory rule prohibiting
employees from presenting concerted complaints to its human resources
department.
B. Did the Respondent violate Section 8(a)(1)and (3) of the Act by the following 10
conduct:
1. On June 28, issuing a written warning to employee Travis Yates.
2. On June 28, issuing a written warning to its employee Joshua Barkley.
3. On July 7, placing Joshua Barkley on administrative leave.
C. Did the Respondent violate Section 8(a)(1)and (4) of the Act by the following 15
conduct:
1. On August 16, issuing a written warning and remedial training to Travis Yates.
2. On August 16, suspending Joshua Barkley.
3. On August 16, demoting Joshua Barkley from field training officer to regular
paramedic.20
4. On August 16, removing Joshua Barkley from his regular shift.
D. Did the Respondent violate Section 8(a)(1)and (5) of the Act by failing and refusing to
furnish to the Union information relevant and necessary to the Union’s performance
of its duties as the collective-bargaining representative of the unit, upon the Union’s
requests of January 10, June 29, and August 16.25
E. Did the Respondent violate Section 8(a)(1)and (5) of the Act by engaging in the
following conduct without prior notice to the Union and without affording the Union an
opportunity to bargain with respect to the conduct and the effects of the conduct:
1. In October 2010, shutting down unit 603.
2. In mid-December 2010, changing its policy regarding time allotted for “move-ups”.30
3. On March 17, changing the terms of a December 1, 2010 agreement by not
allowing the union president’s designee to attend collective-bargaining meetings
during his normal shift without the designee either making a shift trade or using
personal time off and restricting the terms of the agreement to the union president
only.35
4. Since January, issuing discipline to employees under the changed policy
regarding time allotted for “move-ups.”
5. On July 1, requiring the Union to pay $12 per hour for administrative costs
connected with compiling the information requested by the Union on June 29.
40
III. Jurisdiction
At all material times, the Respondent, an Arizona corporation, with an office and place of
business in Tempe, Arizona (the Respondent’s facility), has been engaged in providing
emergency transportation and medical care to various municipalities and businesses. During 45
the 12-month period ending March 11, the Respondent, in conducting its business operations,
purchased and received at the Respondent’s facility goods valued in excess of $50,000 directly
from points outside the State of Arizona. The Respondent admits, and I find, that at all material
times, the Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and the Union has been a labor organization within the 50
meaning of Section 2(5) of the Act.
JD(SF)-49-11
3
IV. Findings of Fact
Unless otherwise explained, the findings of fact are based on party admissions,
stipulations, and uncontroverted testimony regarding events occurring during the period of time 5
relevant to these proceedings. On the entire record,3 including my observation of the demeanor
of the witnesses, and after considering the briefs filed by the General Counsel and the
Respondent, I find the following events occurred in the circumstances described below during
the period relevant to these proceedings.
10
A. The Respondent’s Business Operations
At all material times, the following individuals held the positions set forth opposite their
respective names4 and have been supervisors of the Respondent within the meaning of Section
2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: 15
Ted Beam (Beam) -- Director of Operations
Jim Roeder (Roeder) -- Vice President Clinical Services
Pat Cantelme (Cantelme) -- CEO 911 Operations
Joy Carpenter (Carpenter) -- Human Resources Director20
Beverly Lemoine (Lemoine) -- 911 Regional Manager
Wayne Clonts (Clonts) -- Operations Manager/General
Transport
Susanne Kuhlman (Kuhlman) -- Human Resources Assistant
John Wilson (Wilson) -- Chief of Ambulance Services25
Barbie Marr (Marr) -- 911 Regional Manager
At all relevant times, PMT contracted with the municipalities of Tempe, Scottsdale,
Peoria, and Chandler, Arizona, in the Phoenix area (service areas) to provide emergency
ambulance services (911 services) and nonemergency general transit services (GT services) for 30
designated individuals traveling to home, urgent care centers, insurance facilities, and
hospitals.5 PMT employed registered nurses (RNs), emergency medical technicians (EMTs),
and paramedics. Each 911 ambulance was attended by a crew of one paramedic and an EMT.
The crews worked 12-hour shifts.
35
PMT maintained stations in each municipal service area where vehicles and employees
awaited ambulance calls. A station typically provided a parking area for ambulances and
consisted of a building containing a small living area, limited kitchen facilities, and a sleeping
area. Each station was assigned a number, and each crew was designated by its respective
station number followed by “A” or “B,” signifying which 12-hour shift was worked. The stations 40
were located, in pertinent part, as follows:
Scottsdale: Stations 601 - 602, 604 - 608, 610
Peoria: Stations 191 - 196
Tempe: Stations M271, M276, P272-P27545
Chandler: Stations 282, 284, 286, 289

3 The Respondent’s unopposed posthearing motion to correct the transcript is granted. The
motion and corrections are received as ALJ Exh. 1.
4 The names and positions appear as corrected at the hearing.
5 911 services encompass life-threatening emergencies requiring an immediate response.
An example of nonlife threatening GT services is a request to check on the well being of an
individual.
JD(SF)-49-11
4
Scottsdale station 604 contained a desk in the living area available for general use and a locked
closet in the bedroom area in which field training officer (FTO) materials were kept.
5
Barkley was employed by PMT as a paramedic since 2005. From 2006 until August,
Barkley worked out of station 604, crewing with EMT Travis Yates (the Barkley/Yates crew).
Barkley also served as a field training officer, a position with work responsibilities that provided
additional pay.
10
As to the Scottsdale service area, PMT’s contracts with that municipality required each
911 response to be effected within 8 minutes 59 seconds (8:59) from time of dispatch to arrival
at dispatch destination. Company policy required each crew to be in the vehicle and moving
(10-8 time)6 within 1 minute 30 seconds (1:30) of dispatch notification. When a crew did not
meet the in route policy time, the crew was considered to be “out of compliance,” and the 15
Respondent required the crew to file a report explaining why the crew was out of compliance
with the in route time (out of compliance report).
As dictated by the press of emergency calls, the Respondent required 911 ambulances
to “move-up” to a geographical location different from its assigned station. The Respondent 20
considered a move-up a nonemergency response. As to nonemergency responses, a PMT
written policy effective October 2001 stated: Crews shall respond as quickly as possible but no
longer than 2 minutes 90 percent of the time.
For each 911 call, the responding crew completed a patient care report documenting all 25
procedures and treatment afforded the patient. At the end of shift, each crew put its reports in
an envelope along with any associated documents and placed the envelope in an outbox at
each station from which the reports were daily collected by PMT courier.7 Although PMT was
bound by the confidentiality rules of HPPA,8 and all crews were trained on confidentiality
requirements, PMT adopted no particular security measures at the stations for patient reports. 30
Patient reports were left on the counter of station 604 until end of shift. Sometimes the
Barkley/Yates crew found patient reports of the 604A crew left on the counter, which
Barkley/Yates then assembled for the courier. During at least June 2010, the unlocked outbox
for station 607 was located outside the station’s front door from which the PMT courier picked
up station 607 crews’ patient care reports. Beginning shortly after June 2, 2010, paramedic 35
Christopher Mills (Mills) frequently advised Lemoine by email and once in December 2010
advised Roeder personally that the station 607 outbox location posed confidentiality problems.
Although Roeder agreed the outbox location was a concern, nothing was done about its location
until sometime in July when the outbox was placed inside the station along with a handwritten

6 The postdispatch commencement of vehicle movement was referred to variously as “10-8”
(a term stemming from a formerly used code signifying “ready to go”), “out of chute,” or “in route
time.” There was an ongoing dispute between the Union and PMT as to whether the in route
time was closed when a crew pushed the vehicle computer (MTC) button in the ambulance,
which had to be done upon entering the vehicle, or when the vehicle actually moved. The
Union’s position was that occasional computer sluggishness or malfunction unfairly resulted in
extended start times if calculated from MTC button push and that in route commencement time
ought to be sealed only when the vehicle moved.
7 Couriers were either PMT employees or employees of contracted courier service
companies.
8 HIPAA or the Health Insurance Portability and Accountability Act is a Federal law, which, in
pertinent part, requires companies that transmit patient health care information to comply with
its privacy regulations.
JD(SF)-49-11
5
note from Lemoine instructing that the outbox needed to remain inside the station and all patient
care reports placed in an envelope.
During a period prior to 2007, ambulance unit 603 also worked out of station 604 from 5
which it provided 911 services to Scottsdale 24 hours a day. Unit 603 ceased to function
sometime in 2007 but was briefly reinstituted in spring 2010 for Monday through Friday 8-hour
shifts until PMT removed it from station 604 in October 2010.
PMT had a progressive discipline plan, the following steps of which managers were 10
directed to follow:
Memo to employee file
Documented verbal warning
Written warning15
Suspension
Termination
The progressive steps could be disregarded in the case of severe misconduct. With regard to
response time problems, the Respondent’s practice was to discuss with the offending crew the 20
problem before issuing any discipline.9
B. The Respondent and the Union’s Collective-Bargaining History
On July 7, 2006, PMT recognized the Union as the designated exclusive 25
collective-bargaining representative of the following unit of PMT’s employees (the unit).
Since July 7, 2006, the Union has been the exclusive collective-bargaining
representative of the unit:
All full-time field paramedics, EMTs, IEMT’s, and registered nurses, but 30
excluding administrative staff individuals, support services, personnel not
directly operating in the field as an EMS provider, guards, office clerical,
and supervisors as defined under the Act.10
Since its inception in 2006, Joshua Barkley (Barkley), paramedic employee of the 35
Respondent, served as president of the Union. The Respondent and the Union have been
engaged in collective-bargaining negotiations since 2006 without having reached a contract.
C. Past Unfair Labor Practice Proceedings
40
Beginning July 2008, Barkley filed a number of unfair labor practice (ULP) charges
against PMT. On February 11, 2009, PMT withdrew recognition from the Union. In response to
that action and other conduct alleged to violate Section 8(a)(5), the Board issued a complaint

9 Cantelme testified that the Respondent only disciplined a crew if a pattern of
noncompliance developed, after which the crew’s regional manager would discuss the matter
with the crew before issuing the first discipline of a file memo. I infer from the record that the
discussion was a form of employee counseling.
10 At the hearing, the Respondent agreed that this unit description, although not strictly
tracking that contained in the recognition agreement, appropriately describes the unit involved
herein, of which the Respondent has been the collective-bargaining representative at all times
since July 7, 2006.
JD(SF)-49-11
6
against PMT (the first complaint). In the resulting hearing, held in July 2009 and presided over
by Administrative Law Judge William G. Kocol (the Kocol hearing), Barkley testified.
On November 9, 2009, Judge Kocol found PMT guilty of having engaged in certain 5
unlawful conduct: unlawfully withdrawing recognition from the Union, refusing to provide
relevant information to the Union, unilaterally changing terms and conditions of employment,
direct dealing with employees, and threatening to remove an employee from active duty
because he engaged in union activities (the Kocol decision).11
10
In 2010, PMT filed a lawsuit against Barkley personally and the Union for defamation of
character. Also in 2010, based on additional ULP charges filed by the Union, the Board issued
a second complaint against the Respondent (the second complaint). On December 1, 2010,
Judge Kocol approved a settlement agreement resolving the allegations of the second
complaint (the settlement agreement). In the settlement agreement, the Respondent agreed to 15
certain terms, including allowing the union president or his designee to attend bargaining,
grievance, scheduling, operations and safety meetings, and receive their normal wages, if
meetings were scheduled during an assigned shift. As part of the settlement agreement, PMT
withdrew its defamation lawsuit against Barkley and the Union.
20
On December 13, 2010, the Board adopted the findings, conclusions, and order of the
Kocol decision, the terms of which were thereafter enforced by the United States Court of
Appeals, Ninth Circuit by summary judgment issued June 27.12
D. The 8(a)(1) Allegations25
1. Informing employees they could not take concerted complaints to the human resources
office
In December 2010, paramedic Mills and his partner Heidi Spickler (Spickler), both of 30
whom worked out of station 607, discussed joint concerns about the perceived inappropriate
work conduct of another employee at station 607, Dave Medley (Medley), which Mills and
Spickler believed could involve them in disciplinary fallout.13 When Medley told Spickler he was
going to come into station 607 and “handle” Mills because Mills was a “snitch,” Mills and
Spickler discussed their shared apprehension of a confrontation with Medley. Thereafter, Mills 35
reported to Lemoine that Medley had threatened him. Mills told Lemoine that he would not
tolerate threats, that Spickler did not want to be involved in any confrontation, and that he
wanted to file a hostile work environment complaint with human resources. Lemoine told Mills
he could not file such a complaint because there was no hostile work environment. She said
Mills had not been assaulted and so could not go to human resources but needed to follow the 40
chain of command.
2. Threatening employees with surveillance and termination
On March 21, Clonts and Marr met with paramedic Gregory Empey (Empey) and his 45
crew partner to discuss a delayed move-up time, in which meeting Yates provided union
representative. During the course of the meeting, Empey said he believed he was being
discriminated against because of his age, his high-end pay rate, and his union affiliation. Neither

11 Professional Medical Transport, Inc., JD(SF)–38–09.
12 NLRB v. Professional Medical Transport, Inc., No. 11-71785 (9th Cir. 2011).
13 The perceived conduct related to Medley’s romantic involvement at station 607 with a
student intern.
JD(SF)-49-11
7
Clonts nor Marr responded directly to Empey’s accusation. At the conclusion of the meeting,
after Empey was issued a disciplinary memo to file, Marr told Empey, “Greg, I want you to know
as to the concerns you brought up earlier in the meeting, you are being watched, and you are
subject to termination in the future.”145
3. Violations stemming from written statements in disciplinary suspension of Barkley
On August 16, Roeder and Beam issued Barkley a disciplinary suspension, the
circumstances and details of which are set forth below. In pertinent part, the disciplinary 10
suspension read:
PMT is well aware of Mr. Barkley’s propensity for filing unsubstantiated [ULP]
complaints with no basis in fact, and of the NLRB’s tendency to give unjustified
credence to those complaints. Mr. Barkley has relied upon these tactics to 15
provide the impression of an umbrella of protection for his behaviors. Despite
this, PMT cannot ignore Mr. Barkley’s actions...Mr. Barkley will be removed from
his FTO [field training officer] position and will be suspended for 24 hours without
pay. Mr. Barkley can choose reassignment to any open non-FTO paramedic
position.20
The General Counsel alleges this statement to constitute five separate violations of
8(a)(1): accusing employee of filing unsubstantiated unfair labor practice charges with the
Board, threatening suspension for filing charges under the Act, threatening demotion for
filing charges under the Act, threatening removal from assigned shifts for filing charges 25
under the Act, and threatening unspecified reprisals for filing charges under the Act.
4. Limiting employee’s entitlement to union representation in disciplinary interviews
On August 19, 2011, Clonts met with PMT employee Craig Clifford (Clifford) to discuss 30
two complaints filed against Clifford by other employees. When Clonts told Clifford the purpose
of the meeting, Clifford requested union representation. Clonts told Clifford to shut up and sent
him home, saying a followup meeting for disciplinary action would be scheduled.
Later that week, Clonts telephoned Clifford during his shift. He told Clifford the 35
Company had reached a decision as to his discipline, saying Clifford did not need a union
representative because the discipline was only a verbal warning. Thereafter, Clonts met with
Clifford in a “conclusionary” meeting at which Clifford had union representation.15
E. The 8(a)(3) and (4) Allegations40
On June 21, 2011, the Respondent notified Barkley and Yates they were under
investigation for company policy violations. On June 28, Barkley and Yates met with Beam and
Lemoine at the Respondent’s facility. Beam and/or Lemoine told Barkley and Yates that unit

14 Marr did not testify at the hearing, and Clonts initially had no specific memory of the
meeting. When later questioned by the Respondent’s counsel, Clonts denied that Marr made
any threats at the meeting. Given Marr’s failure to rebut Empey’s testimony and Clonts’
tergiversation, I credit Empey’s account.
15 From Clifford’s word “conclusionary,” I infer the final meeting was for the sole purpose of
delivering the verbal warning.
JD(SF)-49-11
8
604 had two out of compliance 911 calls, providing supporting data showing a response delay of
13 seconds on a June 1 call and a delay of 4 seconds on a June 9 call.16 Berkley and Yates
protested that the equipment used in registering in route times regularly malfunctioned and was
inaccurate, as the Union had pointed out many times before.17 Lemoine and Beam asserted 5
their confidence in the equipment’s accuracy. Lemoine issued each employee a written verbal
warning. Neither Berkley nor Yates had ever before received counseling or discipline from
PMT.18 No evidence was adduced that other employees had received comparable discipline in
comparable circumstances.
10
On July 7, pursuant to another notice of disciplinary investigation, Barkley and Yates met
with Roeder and Beam at the Respondent’s facility.19 Roeder addressed Barkley’s discipline
first, handing Barkley three documents. Two of the documents were a Phoenix fire report
documenting patient care on a specific call and a corresponding patient care report completed
by Barkley. The third was a PMT patient care report completed by Barkley approximately 15 15
months earlier. As to the PMT patient care report, Roeder said the report had been found in the
station 604 desk (an improper location) on June 23. As to the Phoenix fire report, Roeder said a
discrepancy existed as to who performed the work on the call referenced in the report,
suggesting that Barkley had falsified his document.
20
Barkley asked for an official police investigation if he was being accused of fraudulently
completing patient care reports. Roeder laughed, saying police investigation was not
necessary, as he was not accusing Barkley of anything. Yates said he was the one who, at the
end of shift, gathered the patient care reports from the station counter, put them in chronological
order, and prepared them for the courier. Roeder did not respond but told Barkley he would be 25
placed on administrative leave with pay.
Immediately after informing Barkley he would be placed on administrative leave, Roeder
turned to Yates’ disciplinary hearing, in which Barkley served as Yates’ union representative.
The charges of misconduct were the same for Yates as for Barkley. At the conclusion of the 30
Yates’ discussion, Roeder informed Yates he was placed on administrative leave. Barkley
objected, saying the Union wanted him put back to work, as the charges were unprecedented
and no safety issues were involved. Roeder said, “Okay, he’s back to work tomorrow; he’s not
on administrative leave.”
35
Barkley said, “I want to go back to work, too, the same reason, I shouldn’t be on
administrative leave.”
Roeder refused to change Barkley’s discipline, saying, “That’s too bad, you should have
asked me five minutes ago.” Yates was not placed on administrative leave; Barkley was.40

16 Barkley does not dispute PMT’s time records.
17 In January or February, Berkley had told Lemoine that since January he had been
keeping charts showing the discrepancies between his stopwatch readings and the MTC. He
told her his studies showed a consistent 10-second delay between actual activation of the
equipment and electronic confirmation of the activation.
18 Lemoine initially agreed that she had never counseled the two employees about out of
compliance calls. In later testimony, she said she had talked to Barkley and Yates about their
10-8 times on a few occasions although she provided no specifics or documentation. Given her
shifting testimony, I cannot accept her claim of prior counseling.
19 The following account is a reasonable amalgamation of the testimony of Barkley and
Yates. I found both witnesses to demonstrate good recall and to be sincere, clear, and candid; I
credit their testimonies.
JD(SF)-49-11
9
While Barkley was on administrative leave, the Respondent’s managers searched the
locked FTO closet at station 604. According to the Respondent, the managers found one
improperly placed patient care report signed by employee Mills. The Respondent did not 5
discipline Mills.
On August 16, after Barkley’s period of administrative leave ended, he met with Roeder
and Beam with Yates serving as union representative. Roeder handed Barkley a document
entitled “Affidavit,” which listed 13 documents assertedly found in a desk drawer in station 604 10
on June 23, 201120 (station 604 desk drawer documents). The affidavit contained several
averments, including the statements that Barkley was aware of his obligations regarding
security of documents under HIPAA and company policy and that he had never given
documents containing information protected under HIPAA to any unauthorized person outside of
PMT. Barkley refused to sign the affidavit, saying that signing would be an acknowledgement 15
the investigation had validity. Roeder said he would draw an inference that Barkley had
released the documents outside the Company because he wouldn’t sign the affidavit.
Roeder then provided Barkley with a 4-page document dated August 3 and entitled
“Disciplinary Suspension,” which Barkley also refused to sign. The Disciplinary Suspension 20
recited the findings of PMT’s investigation: (1) Barkley’s insubordinate failure to complete
addendums as instructed; (2) Lemoine’s June 23, 2011 discovery of confidential patient
documents in an unlocked desk drawer at station 604, constituting a HIPAA violation;21 (3)
discrepancies in a patient care record of April 25, 2010, when compared with a Phoenix fire
department incident report of the same call, resulted in questions as to who provided the patient 25
interventions and a refund by PMT of payments received for the care attributed to PMT.22 The
disciplinary report concluded:
PMT is well aware of Mr. Barkley’s propensity for filing unsubstantiated Unfair Labor
Practice (ULP) complaints with no basis in fact, and of the NLRB’s tendency to give 30
unjustified credence to those complaints. Mr. Barkley has relied upon these tactics to
provide the impression of an umbrella of protection for his behaviors. Despite this,
PMT cannot ignore Mr. Barkley’s actions . . . Mr. Barkley will be removed from his FTO
position23 and will be suspended for 24 hours without pay. Mr. Barkley can choose
reassignment to any open non-FTO paramedic position. 35
Roeder asked Barkley to let him know within 24 hours to which of the three available 24-
hour, non-FTO paramedic positions listed on the form Barkley chose to be transferred.
The management group then turned to Yates’ discipline while Barkley served as his 40
union representative. Roeder’s presentation of the Company’s position was similar to that given
Barkley. Noting that nothing was listed about the closet search, Yates asked what the search

20 A discrepancy exists between the documents’ discovery date stated in the affidavit, i.e.,
June 23, and the documents’ discovery date declared in a July 7 report completed by Lemoine,
in which she stated she found the documents “on the desk at station 604” on July 7.
21 As the patient care documents never left PMT property, the Respondent did not consider
that a HIPAA “breach” occurred. The Respondent considers a breach to more serious than a
violation.
22 It is unclear from the record specifically what discrepancies the Respondent found
objectionable. With regard to the fire department EMS incident report, the Respondent’s
disciplinary suspension criticized Barkley’s incomplete, inaccurate, and sloppy record.
23 The removal constituted a demotion with a loss of $1.50 per hour in pay.
JD(SF)-49-11
10
had revealed. Roeder said the document they had found in the closet belonged to an employee
that no longer worked for the Company and was irrelevant. At the close of Yates’ meeting,
Roeder presented Yates with a written disciplinary action form, the facts of which tracked
Barkley’s disciplinary report as to unsecured patient care reports. Unlike Barkley’s disciplinary 5
report, Yates’ disciplinary action form did not mention his union activities or utilization of Board
processes. The Respondent issued Yates a written warning and referred him to remedial
training, which Yates had not, at the time of the hearing, received.
F. The 8(a)(5) Allegations10
1. Requests for information
a. January 10 information request
15
In January, the Union was contemplating filing a grievance regarding an investigation at
station 607. On January 10, Beam informed Barkley by email of three items on the agenda for
an upcoming labor-management meeting: (1) the evaluation and benchmarking of the crews’
10-8 performances; (2) evaluating a possible solution and tracking for extended hospital times;
and (3) expiring station leases. On the same day, Barkley emailed Carpenter a request for 20
information that, in pertinent part, included the following items (the Union’s January 10
information request):
1. The total number of discipline proceedings for September 2010 through January
2011, for all unit members.25
2. The number of 10-8 times exceptions from all stations to include Tempe Fire
Department/PMT rides, Chandler Fire Department/PMT rides and Scottsdale 615.
3. The number of discipline proceedings for similar incidents for Fire/PMT rides.
4. The number of move-ups missed by Fire PMT rides and action taken by the
Respondent to rectify that situation.30
5. The number of total discipline proceedings for the same months mentioned above for
all Fire/PMT rides.
6. The complete investigation and all documents relating to complaints at Station 607,
including documents that show FTO and manager involvement, regarding unit
employees Chris Mills, Dwayne Looney and David Medley. 35
Although the Respondent provided some requested information to the Union, it did not provide
the above information. The Respondent replied on January 14 that there was “no indication of
relevancy for the information sought,” asked for relevancy clarification, and asserted the request
was “very general, ambiguous, vague, and unduly burdensome.”40
b. June 29 information request
On June 29, Barkley emailed Carpenter a request for information that included the
following items (the Union’s June 29 information request):45
1. List of all people disciplined for 10-8 times under two minutes in the last six months, to
include their paperwork.
2. Compliance reports that Supervisor Ted Beam indicated were completed, broken
down by unit, since December of 2010.50
3. The policy used in discipline indicates that it is a policy mandated by the city
contracts. Request the language in the city contracts that mandates 100% out of
chute time compliance.
JD(SF)-49-11
11
The Respondent provided some of the information requested on June 29, including some of the
compliance reports, but did not provide item one, all of item two, or item three. The Respondent
informed the Union it expected reimbursement at $12 per hour for someone to assemble the 5
documents requested in items one and two.
c. August 16 information request
On August 16, the Union requested, inter alia, the following information (the Union’s 10
August 16 information request):
1. A copy of the tape and/or video used in the company confiscation of EPCR’s from
Station 604’s bedroom closet by Jim Roeder, Ted Beam and Ralph Vassallo, the day
after Barkley was placed on administrative leave.15
2. A copy of the work order, or any documentation and/or description of notification to
the individual and/or company that replaced the lock on that bedroom closet door
several weeks prior to your surprise investigation and confiscation.
3. A complete list of individuals interviewed or reported [in] any part of the investigation
against Barkley.20
4. A list of unit personnel that have been, previously or currently, placed on
administrative leave for five weeks or longer.
5. A list of unit members that have been placed on administrative leave for two weeks or
longer.
6. All documentation concerning Barkley’s investigation and discipline.25
The Union also renewed its request for item one of its June 29 information request. The
Respondent did not provide the information listed above or item one of the June 29 information
request.
30
2. Unilateral changes
a. Cessation of unit 603 service
As noted above, unit 603 was briefly reinstituted to provide 40-hour weekly service out of 35
station 604 from spring of 2010 until October 2010. PMT did not notify or bargain with the Union
before ending unit 603 service in October 2010, an action that increased the workload at unit
604.
b. Move-up policy change40
The written agenda for the employee refresher meetings of December 14 and 15, 2010,
included the statement, “En-route time for a move up is 1 minute.” On March 21, Clonts met
with the crew of Empey and Phillip Maskell (Maskell), accompanied by Yates as their union
representative, to discuss delayed response to a move-up call. In the course of the meeting, 45
Yates asked for a copy of the move-up policy. Clonts gave Yates a document that stated in
pertinent part, “Move-up requests . . . En-route time for a move up is 1 minute.”
In the course of meeting separately with Empey, Clonts said the expected response time
for move-ups would henceforth be 2 minutes rather than 3. Clonts showed Empey a memo to 50
file regarding an extended 10-8 time on a February 16 move-up assignment for the
Empey/Maskell crew of 3 minutes 19 seconds. A handwritten notation on the memo, initialed by
Clonts, stated, “Move-up wheels rolling 2 minutes or less.”
JD(SF)-49-11
12
No evidence was presented that any employee was counseled or disciplined for move-
up times greater than 2 minutes.
5
c. Abrogation of the Board’s settlement agreement
The settlement agreement provided, in pertinent part:
WE WILL provide the Union President or his designee 60 hours of official time per year 10
at a rate of $20.00 per hour, prorated for 2010, to participate in bargaining and grievance
meetings, including scheduling, operations and safety meetings. In addition, WE WILL
allow the Union President or his designee to attend these meetings and receive their
normal wages, if those meetings are scheduled during an assigned shift of the Union
President or his designee. 15
Barkley, as union president, scheduled bargaining sessions during his days off but at times
designated another employee on the union bargaining team to come to the bargaining sessions
while on duty, intending the above-settlement term to apply to the designee. On March 17, the
Respondent notified Barkley as follows: 20
Due to the confusion, for [the March 18] meeting only, [Respondent has] authorized the
replacement of [designated employees] Tony and Dwayne from 8am-2pm. We will not
be paying Tony and Dwayne during this time, however, you are free to authorize their
pay out of the 60 hour allotment. For all future meetings, you will need to provide us with 25
your availability. We will replace you, and only you on the schedule . . . so as not to
incur unnecessary overtime to the company. We will facilitate shift trades or authorize
[personal time off] following the existing rules for other members of your team.
Obviously, scheduling meeting on your off days and using the 60 hour bank is the best
option.30
d. Charge for information searches
As described above, in response to several of the Union’s requests for information, the
Respondent told the Union the requested information would necessitate an administrative 35
person to search files and documents, a cost the Respondent asked the Union to reimburse at
$12 an hour. The Respondent required the Union to “acknowledge [its] willingness to [do so] if
[the Union] wanted [the company] to proceed with compiling documents responsive to [the
Union’s information] request.”
40
The Respondent had not previously notified or discussed with the Union information
collection reimbursements. In its August 17 reiteration of its reimbursement requirement,
Carpenter, added, “If the [Union] is unwilling to pay for this administrative time, or if you propose
a different arrangement, please let us know as well.”
45
V. DISCUSSION
A. Legal Principles
Section 7 of the Act provides that employees have the right to engage in union activities. 50
Section 8(a)(1) of the Act provides: “It shall be an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section
7.”
JD(SF)-49-11
13
In considering the lawfulness of communications from an employer to employees, the
Board applies the “objective standard of whether the remark tends to interfere with the free
exercise of employee rights.” The Board does not consider either the motivation behind the
remark or its actual effect. Miller Electric Pump & Plumbing, 334 NLRB 824 (2001). 5
Communications from an employer to employees that threaten reprisal for supporting a labor
organization interfere with, restrain, or coerce employees as contemplated by Section 8(a)(1).
Empire State Weeklies, Inc., 354 NLRB No. 91, at slip op. 3 (2009); Regal Health & Rehab
Center, Inc., 354 NLRB No. 51, at slip op. 1 (2009); Grouse Mountain Lodge, 333 NLRB 1322
fn. 2 (2001); Tres Estrellas de Oro, 329 NLRB 50, 51 (1999). 10
Section 8(a)(3) of the Act provides that it shall be an unfair labor practice for an employer
to discriminate in regard to hire or tenure of employment or any term or condition of employment
to encourage or discourage membership in any labor organization.
Section 8(a)(4) of the Act provides that it is an unfair labor practice for an employer “to
discharge or otherwise discriminate against an employee because he has filed charges or given 15
testimony under this Act.” Conduct violating either or both of these provisions discourages
employees' Section 7 rights and derivatively violates Section 8(a)(1) of the Act.
In discipline cases turning on employer motivation under either 8(a)(3) or (4), the Board
applies an analytical framework that assigns the General Counsel the initial burden of showing
that union activity (in the case of 8(a)(3)) or utilizing the Board’s processes (in the case of 20
8(a)(4)) was a motivating or substantial factor in an adverse employment action.24 The
elements required to support such a showing are (1) the employee having engaged in the
respective protected activity; (2) employer knowledge of that activity; and (3) employer animus
toward the activity. If the General Counsel meets the initial burden, the burden then shifts to the
employer to prove, as an affirmative defense, that it would have taken the same action even in 25
the absence of the employee's protected activity. Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); Alton H. Piester, LLC, 353
NLRB 369 (2008).
Under the provisions of 8(a)(5), an employer has a duty to furnish to a union, on request, 30
information that is relevant and necessary to perform its role as exclusive bargaining
representative of unit employees. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979). The
relevance of the information request is evaluated by a liberal, discovery-type standard. NLRB v.
Acme Industrial Co., 385 U.S. 432, 437 (1967). Information that is potentially relevant and will
be of use to the union in fulfilling its duties as bargaining representative must be provided. 35
Pennsylvania Power & Light Co., 301 NLRB 1104, 1104-1105 (1991). The requested
information need not be dispositive of the issue for which it is sought, but need only have some
bearing on it. Id. at 1105. An employer must furnish information of even probable or potential
relevance to the union's duties. Conrock Co., 263 NLRB 1293, 1294 (1982). The employer's
obligation extends to information involving labor-management relations during the term of an 40
existing contract and in preparation for negotiations for a future contract. Southern California
Gas. Co., 346 NLRB 449, 452 (2006). The employer's obligation also extends to information
that would allow the union to decide whether to process a grievance. NLRB v. Acme Industrial,
385 U.S. at 436; Bickerstaff Clay Products, 266 NLRB 983, 985 (1983). The union is not
required to establish in advance exactly how the information sought would be helpful in pursuing 45
the grievance. Blue Diamond Co., 295 NLRB 1007 (1989). Information pertaining to bargaining
unit employees is presumptively relevant and necessary and must be provided. Sheraton
Hartford Hotel, 289 NLRB 463 (1988).

24 A Wright Line approach is used for analyzing alleged violations of Sec. 8(a)(4) of the Act,
and the remedy is the same. Newcor Bay City Division, 351 NLRB 1034 fn. 4 (2007).
JD(SF)-49-11
14
An employer also violates Section 8(a)(5) if it makes material unilateral changes during
the course of a collective-bargaining relationship on matters that are mandatory subjects of
bargaining, “for . . . a circumvention of the duty to negotiate . . . frustrates the objectives of 5
Section 8(a)(5) much as does a flat refusal.” NLRB v. Katz, 369 U.S. 736, 743, 747 (1962);
United Cerebral Palsy of New York City, 347 NLRB 603, 606 (2006). Board law “presumes that
a matter which affects the terms and conditions of employment will be a subject of mandatory
bargaining.” Virginia Mason Hospital, 357 NLRB No. 53, at slip op. 4–5 (2011). Employee work
schedules and workloads are vital aspects of working conditions and are mandatory subjects of 10
bargaining.25 While “narrowly tailored” and “appropriately limited” factors may protect core
entrepreneurial decisions from bargaining,26 even in those unusual circumstances, employers
have an “obligation to engage in effects bargaining over a managerial decision that has an
impact on terms and conditions of employment.”27
15
B. Independent Violations of 8(a)(1)
1. Informing employees they could not take concerted complaints to the human resources
office
20
When, in December 2010, Mills expressed to Lemoine a desire to file a hostile work
environment complaint with the Respondent’s human resources, he was engaged in activity
previously discussed with a coworker that related to working conditions. The activity was both
concerted and protected. When Lemoine told Mills he could not file a hostile work environment
complaint with human resources, she interfered with his right to engage in protected activity,25
and thereby violated Section 8(a)(1).
The Respondent’s no-harm-no-foul argument that the allegation should be dismissed
because Mills, in fact, contacted human resources, thereby rectifying any possible harm, is
without merit. In evaluating the lawfulness of a communication, the Board does not consider 30
either the motivation behind the remark or its actual effect. Miller Electric Pump & Plumbing,
supra.
2. Threatening employees with surveillance and termination
35
On March 21, Marr, in the presence of Clonts, told Empey that because of the concerns
he had brought up in the meeting, he was being watched and was subject to termination in the
future. It is clear the “concerns” Marr referred to was Empey’s accusations of age and union
affiliation discrimination. The Respondent correctly notes that the standard for determining
whether a statement violates Section 8(a)(1) focuses objectively on whether the statement has 40
a reasonable tendency to coerce the employee or interfere with Section 7 rights, but the
Respondent incorrectly maintains the statement had nothing to do with protected and concerted
activity. While Empey’s claim of age discrimination may not have been concerted, his assertion
of discrimination based on his union affiliation is intrinsic to Section 7’s protection of union
activities. Marr’s unqualified threat of prospective surveillance and possible discharge 45
necessarily included Empey’s protected union activity and therefore tended to interfere with his
Section 7 rights. Accordingly, Marr’s statement violated Section 8(a)(1).

25 See Meat Cutters Local 189 v. Jewel Tea Co., 381 U.S. 676, 691 (1965); Bloomfield
Health Care Center, 352 NLRB 252, 256 (2008).
26 Peerless Publications, 283 NLRB 334 (1987).
27 Ibid.
JD(SF)-49-11
15
3. Accusing an employee of filing unsubstantiated unfair
labor practice charges with the Board
On August 16, Roeder and Beam issued Barkley a disciplinary suspension that in 5
pertinent part read:
PMT is well aware of Mr. Barkley’s propensity for filing unsubstantiated Unfair Labor
Practice (ULP) complaints with no basis in fact, and of the NLRB’s tendency to give
unjustified credence to those complaints. Mr. Barkley has relied upon these tactics to 10
provide the impression of an umbrella of protection for his behaviors.
Not only do the statements evidence animus, as detailed below, they also, as the complaint
alleges, constitute separate violations of 8(a)(1) by impliedly threatening reprisals for filing
charges under the Act.15
4. Limiting employee’s entitlement to union representation in disciplinary interviews
When, in August, Clonts told Clifford he did not need union representative because
prospective discipline was only a verbal warning, he misstated the law. A bargaining unit 20
employee has a right to union representation, on request, during an investigatory interview that
an employee reasonably believes may result in disciplinary action. NLRB v. Weingarten, Inc.,
420 U.S. 251 (1975). Employees’ representational rights in such interviews are not qualified by
the severity of the anticipated discipline. However, an employee has no such Section 7 right to
the presence of a union representative at a disciplinary meeting held solely for the purpose of 25
informing the employee of, and acting upon, a previously made disciplinary decision. Baton
Rouge Water Works Co., 246 NLRB 995, 997 (1979).
Here, the record shows that Clonts initially met with Clifford on August 19 for discussion
of employee complaints against Clifford. Such a purpose must have created in Clifford a 30
reasonable belief that the meeting was investigatory in nature with a potential for discipline.
Clonts cut short the meeting when Clifford requested representation, and did not reschedule a
meeting until later that week, at which time he made the allegedly unlawful statement to Clifford.
It may be, as the Respondent argues, that the later meeting had no purpose other than
imposing on Clifford a verbal warning that had been previously decided. In those 35
circumstances, Clifford would have had no right to representation, which in the event he did
have. However, denial of representation is not the issue here but rather the coercive effect of
Clonts’ misstatement of Weingarten rights. Given the circumstances of the statement, i.e.,
curtailment of the initial investigatory meeting immediately after representation was requested
coupled with the later statement, I conclude Clonts’ statement was coercive and violated 40
Section 8(a)(1).
C. Discipline of Barkley and Yates
With regard to the discipline of Barkley and Yates, the Acting General Counsel has 45
established all three elements required for a prima face case under Wright Line in 8(a)(3) and
(4) cases. Both Barkley and Yates were union officers and regularly interacted with PMT
management in that capacity. As union officers, both were involved in filing unfair labor practice
charges against PMT, and Barkley testified in the Kocol hearing. Yates had primary
responsibility for representing employees at disciplinary meetings. The first two Wright Line50
elements, i.e., protected activity under 8(a)(3) and (4) and company knowledge of it, have been
indisputably established for both employees.
JD(SF)-49-11
16
As to the third element, animus, it is unnecessary to address the considerable
circumstantial evidence supporting an animus finding, as PMT expressly declared its hostility
toward Barkley’s protected activities in the written disciplinary suspension notice given to
Barkley. In that notice, PMT stated its recognition of Barkley’s “propensity for filing 5
unsubstantiated [ULP charges],” to which the Board assertedly gave unjustified credence but
which PMT would not permit to provide a protective umbrella. PMT attempted to defend the
statement as merely demonstrating its awareness that Barkley would likely file a charge over
the discipline as well as showing its “extra tolerance and leniency” toward Barkley and Yates’
misconduct, which would otherwise merit termination. The Respondent’s spin on the statement 10
fails; no contextual reading of the “propensity” statement can result in anything other than a
conclusion that the Respondent harbored considerable, ongoing animus toward Barkley’s
activities as a union officer, and, by extension to the activities of other union officers.
It is clear that the Respondent bore Barkley greater animus that it did Yates. Yates’ 15
disciplinary action form did not contain the “propensity” language of Barkley’s disciplinary report
or any words to that effect, and the Respondent’s arbitrary and capricious refusal to rescind
Barkley’s administrative leave while alleviating Yates’ shows a higher hostility toward Barkley.
The differing levels of animus are inconsequential in these circumstances. The animus
articulated by the “propensity” statement covers union representational activities generally, in 20
which Yates shared by virtue of his official position. Further, Yates was Barkley’s crew partner;
his name was on the unsecured patient documents along with Barkley’s. PMT could not
reasonably charge Barkley with ignoring HIPAA regulations without also charging Yates. PMT’s
animus toward Barkley is, therefore, logically extended to Yates even assuming Yates was an
unfortunate casualty rather than a specific target of Respondent’s desire to retaliate against 25
Barkley for activities protected under Section 8(a)(3) and (4).
The General Counsel having met the initial Wright Line burden, the burden shifts to the
Respondent to establish persuasively by a preponderance of the evidence that it would have
disciplined Barkley and Yates even in the absence of their union activities and their utilization of
Board processes. The Respondent has not met its shifted burden.30
The Respondent has failed to explain why it deviated from past disciplinary practice,
bypassing the initial steps of prediscipline discussion/counseling and memo to employee file, in
its dealings with Barkley and Yates. While those steps could be disregarded in the case of
severe misconduct, there is no evidence, beyond the Respondent’s self-serving claim, that the
Respondent regarded any of the asserted infractions as momentous. In that regard, the 35
Respondent failed to provide evidence of comparative discipline for similar violations. While the
Respondent’s HIPAA concerns are unquestionably legitimate, the Respondent presented no
evidence that it viewed the asserted HIPAA violations herein as significant: The Respondent did
not vigilantly address other instances of record mishandling; the Respondent did not institute
employee training or heightened patient-record security following the discipline of Barkley and 40
Yates, and it never followed through with any remedial training for Yates. Its failure to do so
leaves uncountered reasonable inferences that the alleged offenses were not the primary focus
of Barkley and Yates’ discipline. In these circumstances, I find the Respondent violated Section
8(a)(4), (3), and (1) of the Act by issuing verbal written warnings, written warnings, and
suspensions to Barkley and Yates, and demotion and transfer to Barkley. 45
JD(SF)-49-11
17
D. Unilateral Changes and Failure to Furnish Information
Failure to Furnish Information Requested on January 10, June 29, and August 16
5
The Union’s information requests of January 10, June 29, and August 16 all relate to
collective bargaining or grievance issues. Extending the liberal, discovery-type standard
required in such cases,28 it is clear that each request is relevant to, or at least has some bearing
on, the Union’s fulfillment of its duties as the unit bargaining representative. The information
sought is therefore presumptively relevant.10
1. January 10 request
As to the Union’s January 10 requests for information, while the Respondent provided
some of the requested information, it did not provide the following six items:15
1. The total number of discipline proceedings for September 2010 through January
2011, for all unit members.
2. The number of 10-8 times exceptions from all stations to include Tempe Fire
Department/PMT rides, Chandler Fire Department/PMT rides and Scottsdale 615.20
3. The number of discipline proceedings for similar incidents for Fire/PMT rides.
4. The number of move-ups missed by Fire PMT rides and action taken by the
Respondent to rectify that situation.
5. The number of total discipline proceedings for the same months mentioned above for
all Fire/PMT rides.25
6. The complete investigation and all documents relating to complaints at Station 607,
including documents that show FTO and manager involvement, regarding unit
employees Chris Mills, Dwayne Looney and David Medley.
The Respondent asserted then, and asserts now, that it had no duty to provide this information, 30
as the Union had not shown the relevance of the information. The Respondent complained that
the request was “very general, ambiguous, vague, and unduly burdensome” but provided no
specifics as to which requests were defective or what clarification was needed.
As noted, the requested information clearly relates to bargaining unit disciplinary issues and is 35
presumptively relevant.29 The Respondent having failed to show that the requested information
is irrelevant or that the description of the information sought is ambiguous, vague, or unduly
burdensome, the Respondent’s failure to furnish to the Union the information requested on
January 10 violated Section 8(a)(5).
40
2. June 29 request
The Union’s June 29 request for information also related to collective bargaining or
grievance issues and the information was presumptively relevant. As to items one and two of
the Union’s June 29 request, i.e., (1) a list of all people disciplined for 10-8 times under 245
minutes in the last 6 months, to include their paperwork and (2) certain compliance reports,
broken down by unit, since December 2010, the Respondent refused to furnish the information
without the Union’s commitment to pay $12 per hour for an individual to collect the information.

28 NLRB v. Acme Industrial Co., supra at 437.
29 As to item six, insofar as that request may be read to include witness statements, such statements
need not be furnished. See Anheuser-Busch, Inc., 237 NLRB 982, 984 (1978) (union not entitled to
receive witness statements obtained in an internal disciplinary investigation).
JD(SF)-49-11
18
The Respondent's obligation to bargain requires it to exert reasonable efforts to provide
requested information, but the Respondent may request defrayment of unusual, associated
administrative costs. While the Respondent has made no specific showing as to what5
extraordinary efforts were required to compile items one and two of the June 29 information
request, the Respondent does not, apparently, keep in its regular course of business either the
list of disciplined employees referred to in item one or the compliance reports broken down by
unit. It may be reasonably inferred that production of that particular information would require
substantial administrative efforts, and the suggested per hour cost is not unreasonable. The 10
Respondent’s reimbursement request does not, therefore, of itself, evidence bad faith. See
Pacific Telephone & Telegraph Co., 246 NLRB 327 (1979); Greensboro News & Record, Inc.,
290 NLRB 219 (1988). Under these circumstances, I find insufficient evidence to establish that
the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with
items one and two of the Union’s June 29 request for information without cost reimbursement. 15
As to item three, the language in the city contracts that mandates 100 percent out of chute time
compliance, the Respondent’s failure to furnish to the Union that information violated Section
8(a)(5).
3. August 16 request20
As the Respondent points out, the Union’s August 16 request for information related to
issues encompassed by the Union’s essentially contemporaneous unfair labor practice charges
with the Board. The Respondent argues that the August 16 request, coming as it did after the
Union filed unfair labor practice charges with the Board was an attempt to engage in pretrial 25
discovery, which is not permitted by the Board. Given the content and timing of the August 16
information request, the Respondent could reasonably have believed that the discipline
accorded Barkley and Yates might become the subject of a Board complaint, as indeed it did,
and that the information was intended to bolster the Union’s charges against the Respondent.
An employer need not produce requested information where the employer reasonably believes 30
the information requested relates to an unfair labor practice charge. Pepsi-Cola Bottling Co.,
315 NLRB 882 (1994); Saginaw Control & Engineering, Inc., 339 NLRB 541, 544 (2003).
Accordingly, the Respondent had a valid motive for refusing to provide the information
requested on August 16 and did not thereby violate the Act.
35
E. Unilateral Changes
1. Cessation of unit 603 service
As to the Respondent’s October 2010 unilateral cessation of unit 603 service, the 40
Respondent argues the action was a core entrepreneurial decision that was not subject to
bargaining and which had only a minimal impact on employees. It is not clear from the record
that the 603 unit cessation had no material effect on workload, and even its potential impact on
a mandatory subject of bargaining, i.e., workload, subjects the decision to the bargaining
obligation. Accordingly, the Respondent’s October 2010 unilateral cessation of unit 603 service 45
violated Section 8(a)(5) and (1).
2. Move-up policy change
Regarding the alleged change in the Respondent’s move up policy, the Respondent 50
contends that no policy change occurred, that any written reference to a 1-minute move-up time
was erroneous, and that its longstanding policy of a 2-minute limit on move-up times was never
JD(SF)-49-11
19
altered. It is unclear from the evidence that the Respondent did, in fact, deviate from a 2-minute
move-up time policy. Accordingly, I shall dismiss this allegation of the complaint.
3. Abrogation of the Board settlement agreement5
As to the alleged unilateral abrogation of the Board settlement agreement, the
Respondent argues it has not improperly refused to abide by the provisions of the settlement
agreement. The Respondent acknowledges the agreement’s terms provided that PMT would
”allow the Union President [Barkley], or his designee, to attend [collective bargaining meetings] 10
and receive their normal wages, if those meetings are scheduled during an assigned shift of the
Union President or his designee.” The Respondent concedes that it has not extended the
provision to any of Barkley’s designees because, by Barkley’s assertion, they “have NO
authority to act on behalf of the Union.” In the Respondent’s view, individuals who were
“nothing more than powerless messengers with no decision-making authority” could not 15
constitute a “designee” under the terms of the settlement agreement. The Respondent
contends the resulting disagreement over the definition of a designee is a reasonable contract
interpretation dispute.
I cannot accept the Respondent’s argument. The settlement agreement clearly required20
the Respondent to extend the settlement commitments to Barkley’s designees. The
Respondent’s refusal to do so abrogated the terms of the agreement.
The Respondent also contends that the General Counsel may not seek remedy for
settlement agreement abrogation through the vehicle of an ULP complaint but is restricted to 25
setting aside the settlement agreement. The Respondent has cited no authority for such a
proposition, and this type of allegation is not unknown to the Board. See Vincent/Metro
Trucking, 355 NLRB No. 50 fn. 1 (2010) (no exceptions filed to judge's finding that the
respondent violated Sec. 8(a)(5) by violating the parties' Board-approved settlement
agreement); At Systems West, Inc., 341 NLRB 57 (2004) (employer violated Sec. 8(a)(5) of the 30
Act by withdrawing recognition from the union at a time when it was obligated to bargain under
the terms of a settlement agreement). Accordingly, the Respondent’s abrogation of the
settlement agreement as alleged in the complaint violated Section 8(a)(5) and (1).
4. Charge for information searches35
The complaint alleges that the Respondent’s $12 an hour reimbursement charge for
collection of information requested in items one and two of the Union’s June 29 request was an
unlawful unilateral change. The Respondent argues that its claim for reimbursement was
propositional only, i.e., “we would ask that the [Union] reimburse [italics added].” The
Respondent points out that in an August 17 email, it essentially offered to bargain over the 40
issue: “If the [Union] is unwilling to pay for this administrative time, or if you propose a different
arrangement, please let us know as well.” The Union never requested bargaining over the
proposed costs.
I have earlier found that the Respondent did not violate Section 8(a)(5) and (1) of the Act 45
by refusing to furnish the Union with items one and two of the Union’s June 29 request for
information without cost reimbursement. Consistent with that finding, and in light of the Union’s
failure to seek bargaining over the reimbursement issue, I find the Respondent did not
unilaterally change any term or condition of employment by seeking defrayment of information
gathering costs or thereby violate Section 8(a)(5) and (1).50
JD(SF)-49-11
20
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.5
3. Since July 7, 2006, the Union has been the exclusive collective bargaining
representative of the Respondent’s employees in the following appropriate unit:
All full-time field paramedics, EMTs, IEMT’s, and registered nurses, but excluding
administrative staff individuals, support services, personnel not directly operating in the 10
field as an EMS provider, guards, office clerical, and supervisors as defined under the
Act.
4. The Respondent violated Section 8(a)(5), (4), (3), and (1) of the Act as set forth
herein.15
5. The unfair labor practices set forth above affect commerce within the meaning of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found the Respondent has engaged in certain unfair labor practices, I find it must 20
be ordered to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act. Further, the Respondent having unlawfully disciplined Joshua Barkley and
Travis Yates, it must offer Joshua Barkley reinstatement to his field training officer position and
to his former shift. The Respondent must also make Joshua Barkley and Travis Yates whole for
any loss of earnings and other benefits. Backpay shall be computed on a quarterly basis from 25
date of unlawful discipline to date of proper offer of reparation, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest compounded on a daily
basis, as prescribed by Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on
other grounds sub nom. Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011). The
Respondent will be ordered to make appropriate emendations to Joshua Barkley and Travis 30
Yates’ personnel files. The Respondent will be ordered to post appropriate notices.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended30
35
ORDER
The Respondent, Professional Medical Transport, Inc., Tempe, Arizona, its officers, agents,
successors, and assigns, shall
1. Cease and desist from40
(a) Failing and refusing to provide Independent Certified Emergency Professionals of
Arizona, Local #1 (the Union) with the following information: items one through six of the Union’s

30 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.49 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(SF)-49-11
21
January 10, 2011 request for information and item three in the Union’s June 29, 2011 request
for information.
(b) Making the following unilateral changes in the employment terms and conditions of 5
employees represented by the Union: cessation of unit 603 service and abrogation of the Board
settlement agreement as set forth herein.
(c) Disciplining employees for engaging in union activities and/or for utilizing the processes
of the National Labor Relations Board.10
(d) Interfering with, restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act by the following (1) threatening discharge for engaging
in union and concerted protected activities; (2) suspension for filing charges under the Act; (3)
demotion for filing charges under the Act; (4) removal from assigned shifts for filing charges 15
under the Act; (5) unspecified reprisals for filing charges under the Act; (6) Informing employees
they may not take concerted complaints to the human resources office; (7) permitting requested
union representation for investigatory interviews only where contemplated discipline is greater
than a verbal warning; (8) accusing employees of filing unsubstantiated unfair labor practice
charges with the Board; and (9) giving the impression of surveillance of employees’ union 20
and/or other concerted activities.
(e) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
25
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 21 days after receipt of this decision furnish Independent Certified Emergency
Professionals of Arizona, Local #1 with the information requested by as noted in paragraph 1(a)
above.30
(b) Upon request by the Union, meet and bargain with the Union regarding the changes to
employment terms and conditions found herein to have been made unilaterally.
(c) Within 14 days from the date of this Order, offer Joshua Barkley full reinstatement to his 35
former shift at station 604 and his former field training officer position or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
(d) Make Joshua Barkley and Travis Yates whole for any loss of earnings and other benefits 40
suffered as a result of the discrimination against them, in the manner set forth in the remedy
section of the decision.
(e) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful discipline of Joshua Barkley and Travis Yates, and within 3 days thereafter notify them 45
in writing that this has been done and that the discipline will not be used against them in any
way.
(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the 50
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
JD(SF)-49-11
22
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(g) Within 14 days after service by the Region, post at its facility copies of the attached 5
notice marked "Appendix."31 Copies of the notice, on forms provided by the Regional Director
for Region 28, after being duly signed by the Respondent's representative, shall be posted
immediately upon receipt thereof, and shall remain posted by the 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 the Respondent to 10
ensure the notices are not altered, defaced, or covered by any other material. In addition to
physical posting of paper notices, the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means.32 In the event that,
during the pendency of these proceedings, the Respondent has gone out of business or left the 15
jobsite involved in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees employed by
Respondent at any time since December 2010.
(h) Within 21 days after service by the Regional Office, file with the Regional Director a 20
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.25
Dated: Washington, D.C. December 20, 2011
Lana H. Parke
Administrative Law Judge

31 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
32 The question of whether the Respondent electronically communicates with employees is
left to the compliance stage of these proceedings.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. More particularly,
WE WILL NOT fail or refuse to bargain with Independent Certified Emergency Professionals
of Arizona, Local #1 (the Union), as the exclusive collective-bargaining representative of
our employees in the following unit:
All full-time field paramedics, EMTs, IEMT’s, and
registered nurses, but excluding administrative staff
individuals, support services, personnel not directly
operating in the field as an EMS provider, guards, office
clerical, and supervisors as defined in the Act.
WE WILL NOT fail or refuse to provide the Union with information requested by the Union that
is relevant to its performing its duty to represent employees.
WE WILL NOT make changes in the employment terms and conditions of unit employees
without first notifying and bargaining with the Union.
WE WILL NOT discipline employees for engaging in union activities and/or for utilizing the
processes of the Board by such actions as filing unfair labor practice charges and giving
testimony.
WE WILL NOT do any of the following (1) threaten employees with discharge for engaging in
union and concerted protected activities; (2) place on administrative leave or suspend
employees for filing charges under the Act; (3) demote employees for filing charges
under the Act; (4) issue written warnings or other discipline because you engage in
union and/or other concerted activities or because you file charges or give testimony
under the Act; (5) remove employees from assigned shifts for filing charges under the
Act; (6) threaten unspecified reprisals for filing charges under the Act; (7) inform
employees they may not take concerted complaints to the human resources office; (8)
permit requested union representation for investigatory interviews only where
contemplated discipline is greater than a verbal warning; (9) accuse employees of filing
unsubstantiated unfair labor practice charges with the Board; and (10) make it appear
that we are watching your union and/or other concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights stated above.
WE WILL promptly furnish the information requested by the Union and found relevant herein.
WE WILL rescind the shut down of unit 603; restore that work to unit employees in the
manner that existed prior to our October 2010 cessation of that service.
WE WILL rescind our changes to the December 1, 2010 agreement by allowing the union
president’s designee to attend collective-bargaining meetings during his or her normal
shift without the designee either making a shift trade or using personal time off.
WE WILL upon request by the Union, meet and bargain with the Union regarding changes
made to employment terms and conditions.
WE WILL rescind the verbal written warnings issued to Travis Yates and Joshua Barkley on
June 28, 2011, and August 16, 2011.
WE WILL rescind the suspension, demotion and removal from assigned shift/station issued to
Joshua Barkley on August 16, 2011.
WE WILL, within 14 days of this Order, offer Joshua Barkley full reinstatement to his former
assigned shift/station and to his field training officer position or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL make Joshua Barkley and Travis Yates whole for any loss of earnings and other
benefits suffered as a result of our unlawful discipline of them.
WE WILL remove from our files any reference to the unlawful discipline of Joshua Barkley and
Travis Yates and notify them in writing that this has been done and that the discipline will
not be used against them in any way.
PROFESSIONAL MEDICAL TRANSPORT, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov. 2600 North Central Avenue, Suite 1800, Phoenix,
AZ 85004-3099 (602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY
BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (602) 640-2146.