Randle-Eastern Ambulance Service, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1977

230 N.L.R.B. 542 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Randle-Eastern Ambulance Service, Inc. and Randle
Medical Sales & Rentals, Inc. and Transport
Workers Union of America, Local 500, AFL-CIO.
Case 12-CA-7246
June 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On February 16, 1977, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions, supporting briefs,
and answering briefs.
Pursuant to the provisions of the 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
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions2 of the Administrative Law
Judge and to adopt her recommended Order, as
modified herein.
We agree with the Administrative Law Judge, for
the reasons stated by her, that Respondent violated
Section 8(a)(5) and (1) of the Act by, on April 22,
1976, withdrawing all its proposals from the negotiat-
ing table; on June I submitting new proposals which
in some respects offered the Union less than those
upon which the parties had previously reached
tentative agreement; and on June 7 withdrawing
recognition from and refusing to bargain with the
Union because of an asserted, but unsupported,
doubt of the Union's continued majority status.
However, we find, contrary to the Administrative
Law Judge and in agreement with the General
Counsel, that the strike was converted into an unfair
labor practice strike on April 22, 1976, rather than
the later date of June 7.
On March 31, 1976, the union membership rejected
the tentative oral argument reached by the parties
and an economic strike commenced at midnight. On
April 22, 1976, Respondent took the dramatic step of
withdrawing all prior offers from the bargaining
table and in spite of the Union's request to return the
prestrike agreement to the bargaining table. Respon-
dent refused. We have found that this conduct
violated Section 8(a)(5). We further find that Re-
spondent's unlawful withdrawal of all its prior
proposals on April 22 seriously impeded the success
of the negotiations and thus prolonged the strike and
its settlement. Accordingly, we find that on April 22
the economic strike was converted into an unfair
230 NLRB No. 69
labor practice strike.3 We will, therefore, order that
Respondent, upon application, reinstate the unfair
labor practice strikers who were not permanently
replaced prior to April 22, 1976.
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, as
modified below, and hereby orders that the Respon-
dent, Randle-Eastern Ambulance Service, Inc., and
Randle Medical Sales & Rentals, Inc., Miami,
Florida, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order as so modified:
1. In paragraph 2(a), substitute the date; of
"April 22, 1976," for "June 7, 1976."
2. Substitute the attached notice for that of the
Administrative Law Judge.
t The 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 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 her findings.
2 Based on the credited testimony of economic striker Norman Turek,
the Administrative Law Judge found that on June 3, 1976, Respondent's
director of operations, Leonard Provenzano, told Turek that he had to
resign from the Union before he could return to work for Respondent. In
late June or early July, Turek was offered reinstatement dunng a telephone
conversation with Respondent's vice president, Charles O'Conner. Accord-
ing to O'Conner's testimony, which was not discredited by the Administra-
tive Law Judge, Turek raised the question of resigning from the Union
before being reinstated and O'Conner told Turek "it didn't make any
difference what organization he belonged to, that I was only interested in
filling an ambulance service position." Respondent contends, as it did in its
brief to the Administrative Law Judge, that, even if Provenzano made the
coercive statement alleged, it was neutralized by O'Conner's subsequent
disavowal. The Administrative Law Judge rejected Respondent's conten-
tion, finding that "O'Conner's equivocal responses" did not "constitute an
adequate repudiation of Provenzano's coercive statement." We find,
contrary to the Administrative Law Judge, that O'Conner's remarks were
not ambiguous, but rather had the potential of neutralizing Provenzano's
coercive statement. Steves Sash & Door Company, 164 NLRB 468, 475-476
(1967). However, O'Conner's repudiation came a month or more after the
coercive statement, thus making it so remote in time as to vitiate its
effectiveness. Accordingly, we find, as did the Administrative Law Judge,
that Respondent violated Sec. 8(aX I) of the Act by informing economic
strikers that reinstatement was conditioned upon resignation from the
Union.
3 Cantor Bros., Inc., 203 NLRB 774, 779 780 (1973); San Antonio
Machine& Supply Corp., 147 NLRB 1112, fn. 1, 1116-17(1964).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell striking employees applying
for reinstatement they have to resign from
membership in Transport Workers Union of
542
RANDLE-EASTERN AMBULANCE SERVICE
America, Local 500, AFL-CIO, before they can
return to work.
WE WILL NOT refuse to bargain collectively with
the above-named Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section
7 of the National Labor Relations Act.
WE WILL offer, upon application, to all our
employees engaged in an unfair labor practice
strike, who were not permanently replaced while
economic strikers, reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges,
discharging if necessary and replacements hired
on or after April 22, 1976, when the economic
strike was prolonged and converted into an unfair
labor practice strike.
WE WILL make each of these striking employees
whole for any loss of earnings they may suffer by
reason of the failure, if any, to reinstate them
upon application, with interest thereon at 6
percent per annum.
WE WILL, upon request, bargain collectively
with the above-named Union as the exclusive
representative of our employees in the unit found
appropriate with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and embody in a signed agreement any
understanding reached. The bargaining unit is:
All ambulance drivers and ambulance atten-
dants, all mechanics (regular and part-time),
all rental and service employees, all medical
examiner drivers and attendants, and all
hearse and limousine drivers, at our Miami,
Florida, location, excluding all office clerical
employees, guards, professional employees,
chief mechanic, dispatchers, and all supervi-
sors as defined in the Act.
RANDLE-EASTERN
AMBULANCE SERVICE,
INC. AND RANDLE
MEDICAL SALES &
RENTALS, INC.
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge:
Upon a charge filed on June 8, 1976,1 by Transport
Workers Union of America, Local 500, AFL-CIO, herein
called the Charging Party or the Union, the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 12 (Tampa, Florida), issued a
complaint and notice of hearing on August 17. The
complaint alleges in substance that Randle-Eastern Ambu-
lance Service, Inc., and Randle Medical Sales & Rentals,
Inc., herein referred to jointly as the Respondent, which
has had contractual relations with the Union since a Board
certification in June 1967, in negotiations for a new
contract withdrew all its contract proposals on April 22
and, since on or about June 7, refused to recognize or
bargain with the Union, in violation of Section 8(aX5) and
(I) of the National Labor Relations Act; by these unfair
labor practices prolonged a strike that began on or about
March 31; and on or about June 3 told striking employees
they had to resign from the Union before they could return
to their jobs, and thereby interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
In its answer, duly filed, the Respondent admits certain
allegations of the complaint, including the allegation that it
advised the Union on or about June 7 it would no longer
recognize or bargain with the Union; asserts that it also
advised the Union of its doubt that the Union continued to
represent a majority of the employees; and denies that it
engaged in any conduct violative of the Act.
Pursuant to notice, a hearing was held before me in
Coral Gables, Florida, on September 29 and 30. All the
parties appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce relevant evidence. At the close
of the hearing, the General Counsel presented closing
argument and, subsequent to the hearing, on or about
November 26, the Respondent filed a brief, each of which
has been duly considered.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Florida corporation with its
principal office and place of business located in Miami,
Florida, where it is engaged in the business of selling and
renting medical equipment to retail customers and in
providing ambulance service and attendant emergency
first-aid treatment to individuals. During the 12 months
preceding issuance of the complaint, which is a representa-
tive period, the Respondent, in the course and conduct of
its business operations, had a gross revenue in excess of
$500,000, of which services for Dade County, Florida, were
in excess of $150,000. During the same period of time, the
Respondent purchased goods, materials, and supplies
valued in excess of $5,000 directly from points located
outside the State of Florida. The complaint alleges, the
Respondent in its answer admits, and I find that the
Respondent is, and at all times material herein has been, an
All dates hereinafter refer to 1976 unless otherwise indicated.
543
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent in its answer
admits, and I find that the Union is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
As the complaint alleges and the Respondent in its
answer admits, the Union was certified on June 12, 1967, as
the representative of an appropriate unit of the Respon-
dent's employees comprised of all ambulance drivers and
ambulance attendants, all mechanics (regular and part-
time), all rental and service employees, all medical
examiner drivers and attendants, and all hearse and
limousine drivers, at its Miami, Florida, location, excluding
all office clerical employees, guards, professional employ-
ees, chief mechanic, dispatchers, and all supervisors as
defined in the Act; the Respondent entered into successive
collective-bargaining agreements with the Union, the last
bearing an effective date of May 1, 1973, and by its terms
to continue in effect until March 31, 1976; the parties,
beginning on or about February 2 and on various dates
thereafter including April 8, engaged in negotiations for the
purpose of entering into a new agreement; the Respondent,
on or about June 7, notified the Union at a scheduled
collective-bargaining session that it would no longer
recognize or bargain with the Union, and since that date
has refused to recognize or bargain with the Union; and
certain employees of the Respondent went on strike on or
about March 31. The strike was still in effect at the time of
the hearing. The complaint also alleges, and the Respon-
dent admits, that William Randle, president of both
Respondent companies, James Randle, a company officer,
and Charles O'Conner and Leonard Provenzano, respec-
tively vice president and chief of operations of Randle-
Eastern Ambulance Service, Inc., are supervisors within
the meaning of Section 2(11) of the Act.
The complaint also alleges, while the Respondent's
answer denies, that the Union has continued at all times
since June 1967 to be the exclusive representative of the
unit employees; that, on or about April 22, the Respon-
dent, by Muller, its attorney, bargained in bad faith when,
in a negotiation session held in the office of the Federal
Mediation and Conciliation Service, he informed the
Union that the Respondent was withdrawing all its
previous contract proposals; that the Respondent, by
conduct since on or about April 22 violative of Section
8(a)(5) and (I) of the Act, prolonged the strike; and that
the Respondent, by Provenzano, informed striking employ-
ees they would have to resign from the Union before they
could return to work, in violation of Section 8(aXl) of the
Act.
The General Counsel also argued at the hearing that the
parties, after negotiating for about 2 months, reached
tentative agreement on March 29 but the membership, over
the recommendation of the union committee, rejected the
agreement and voted to go on strike; that the Respondent
on April 22 withdrew all its proposals and, on June 1,
submitted new proposals with provisions harsher than
those withdrawn and those in the expired contract; that the
Respondent bargained in good faith from February 2 until
April 22 but, on and after April 22, engaged in bad-faith
bargaining; and that the strike that began on midnight of
March 31 as an economic strike was prolonged and
converted into an unfair labor practice strike by the unfair
labor practices of the Respondent.
The principal issues, therefore, are whether or not the
Respondent negotiated in good faith on and after April 22;
whether it withdrew recognition and refused to negotiate
further on June 7 in violation of Section 8(aX5) and (1) of
the Act or because of a valid doubt of the Union's
continuing representative status; whether or not the
Respondent engaged in unlawful conduct that prolonged
and converted an economic strike that began at midnight
on March 31; and whether or not strikers were told by
Provenzano they had to resign from the Union in order to
come back to work.
B. The Negotiations
1. February 2 to March 25
The General Counsel called as the first witness Roberts,
president of Local 500, who participated in the negotiations
for a new contract beginning in February. Roberts did not
take notes of what was said at the negotiations, and
testified as to when sessions were held, who attended, and
what occurred on the basis of his recollection. On cross-
examination by Respondent's counsel, Muller, Roberts
responded to a number of questions that he did not recall
but certain circumstances might have occurred as de-
scribed by Muller.
After Roberts completed his testimony, Muller stated
that, in view of Roberts' testimony, he would testify as a
witness for the Respondent. He thereupon withdrew as
counsel for the Respondent, which was represented for the
remainder of the hearing by Cocounsel Bramnick. Muller
had taken notes during the negotiation sessions he
attended beginning in the latter part of March. He
admitted during his testimony he could not recall, without
his notes, dates when sessions were held, who attended, or
what occurred. Virtually all his testimony was based on
what was set forth in his notes, which admittedly in some
instances were incomplete or incomprehensible to Muller,
in some so cryptic as to require interpretation by Muller,
and, with regard to the final session, Muller had no notes
and relied on those taken by Bramnick. Some of Muller's
notes did not show dates or who was present, some
indicated issues that were raised but not what was said, and
in some of these instances Muller admitted he could not
recall what occurred unless revealed by his notes.
Negotiations for a new contract began at a meeting
about February 2. The Respondent was represented by
William Randle, James Randle, and O'Conner; the Union
by Roberts, Redford, and Union Committeemen McGuire,
Federman, Andres, and Brooks. Roberts testified that the
Union presented a list of proposed contract changes, which
544
RANDLE-EASTERN AMBULANCE SERVICE
were discussed; that one of the union proposals was to omit
the management rights clause in the prior contract which
the Union found "very restrictive"; that the Respondent
convinced the Union there should be a management rights
clause, and asked the Union to draw up what would be
acceptable; and that this was done and was presented at
the next meeting, held on about February 10. Roberts also
testified that the Respondent submitted counterproposals
at the next meeting, held on or about March 10, and
several additional proposals at a meeting on or about
March 26; and that on the same day or the following day,
the Union presented a proposal on arbitration.
On cross-examination, Roberts testified that the first
meeting at which Muller and a mediator were present
"could have been" on March 22. He also testified that the
Union's wage package proposal sought an increase of 15
percent of employee earnings each year of the 2-year
contract, which the Union reduced to 10 percent each year;
increases in medical coverage, the full price of a semipri-
vate room and, Roberts believed, $100,000 major medical;
a retirement plan based on 2-1/2 percent of the previous
year's pay for each year of service collectible at age 60; a
cost-of-living clause; an extra floating holiday at double
time rates; and a change in the work schedule set by the
old contract, 24 hours on, 24 off, totaling 84 hours a week,
to 24 on, 48 off, totaling 60 hours a week, at the same pay.
Roberts also testified, on cross-examination, that the
next meeting was on March 24; that a mediator was
present; that he might have told the mediator the parties
were a long way apart as they were; that Muller said the
Union's proposal to reduce the workweek would cost the
Respondent a great deal of money but Roberts could not
recall the stated figures; and that the Respondent suggest-
ed that certain of the economic items be submitted to
arbitration, "Subject to being funded by the County
Commissioners." 2
Roberts also testified that the Respondent gave him a
proposal in writing to submit a number of issues to
arbitration; that he rejected it but "was going to sit down
and work up one with" Muller, or have union counsel do
so; and that no agreement was reached on this matter.
Muller testified that the first meeting at which he and a
mediator were present was the one on March 24; that the
Union told the mediator the parties were a long way apart;
that the Respondent said the Union's proposed shift
change would cost about $260,000, asked if the Union held
to it, and the Union did; that the Respondent suggested
that and other monetary issues go to binding arbitration;
and that the Union agreed as to a number of issues but not
that the arbitration award be subject to funding by the
county.
Roberts testified, on cross-examination, that the next
meeting was possibly on March 25; that the Union could
have increased its demands on that date for major medical
benefits of $100,000 and coverage of the full cost of
hospital room and maternity, dental, drug, and optical
costs; a 2-1/2 percent employer contribution to a pension
plan to be fully vested in 10 years; and an insurance policy
based on the value of 2 years of an employee's salary on
2 The Respondent provides ambulance service for private patients and,
under contract with the county. for fire and police agencies. with the fees for
both kinds ofcalls set by the county.
retirement. Roberts also testified that the Respondent's
offer to withdraw the existing polygraph requirement might
have been made on that date or a day or so later.
2. Tentative agreement reached on March 29
Roberts testified that a meeting was held on March 29 at
the mediation office. He also testified, on cross-examina-
tion, that the Respondent made concessions in the
supplemental workmen's compensation coverage by agree-
ing to pick up a portion of the pay between, possibly, the
7th and the 30th day; agreed to increase major medical
from $25,000 to $100,000, and, Roberts believed, offered to
provide $5,000 in life insurance coverage, to which the
Union's response was that it was "going to need more
improvements than hospitalization"; and proposed to bear
the full cost of a semiprivate hospital room, which the
Union accepted after a caucus.
Roberts also testified that an agreement was reached at
this March 29 meeting subject to ratification by the
membership; that the agreement was not reduced to
writing; that Roberts and Redford suggested they would
prepare a synopsis to be presented to the membership with
the union committee's recommendation that the agreement
be accepted; and that Randle requested that, when they
had prepared the synopsis, they call him and go over it with
him to make sure it was what they agreed on. Roberts
testified further that he read the synopsis on the telephone
to Randle, who indicated it correctly reflected their
agreement. The synopsis set forth the clauses in the prior
contract that were to be changed, left blank the clauses that
were to remain the same, incorporated a management
rights clause proposed by the Respondent on March 10 to
which the parties had agreed, included cost-of-living as
part of the wage package, and dealt with the Respondent's
offer of arbitration as to three items not settled-wages,
retirement, and the 84-hour work schedule.
3. Strike voted for midnight March 31
Membership meetings for the two shifts were held at 7
p.m. on March 30 and 9:30 a.m. on March 31. The union
negotiating committee reported to the membership, gave
each member a copy of the synopsis, and the committee
members present at each meeting unanimously recom-
mended ratification. Roberts testified, on cross-examina-
tion, that the committee explained to the membership that
provisions covering wages, retirement, work schedule, and
cost-of-living were not yet settled; that the Respondent
proposed they arbitrate those items; and that Randle and
Muller had informed the committee that the money would
have to be funded by the county, there was a question
whether the impact of the arbitration award might cause
the county not to fund it, "we could not make a settlement
on the contract any other way without a strike, and we
didn't want to strike." The membership nevertheless
rejected the proposed contract and voted to strike at
midnight, March 31. A strike began at that time and was
still in effect at the time of the hearing.
545
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Negotiations resumed on April 8
The first negotiation meeting after the strike was held on
April 8 at the mediation office. Roberts testified that
William and James Randle, O'Conner, and Muller repre-
sented the Respondent, with Muller as the spokesman, and
Roberts, Redford, Brooks, Andres, and Federman repre-
sented the Union, with Roberts and Redford as the
spokesmen. Muller testified that he believed Redford was
not yet in these negotiations, that he and O'Conner
represented the Respondent and, maybe, James Randle,
but that William Randle was not at any negotiation
sessions after the strike began. The mediator at that
meeting commented that he thought they had reached an
agreement, and asked what happened. Roberts explained
that the membership would not ratify it; that retirement,
wage increases of 10 percent each year plus cost-of-living,
and a work schedule of 60 or 84 hours a week were open
issues. Roberts also testified that the major issue then was
the demand for a reduction in the work schedule from 84 to
60 hours a week, and that the Respondent argued that this
change would cause too great a financial burden and
explained the limitations on what it could charge for
ambulance service. Roberts testified that the Union, prior
to the strike, had rejected a proposal of the Respondent for
certain shifts off without pay, to be later partially
reimbursed, and that the Respondent might have repeated
this offer on April 8, but the offer was withdrawn. The
Union withdrew its prestrike commitment on submitting
issues to arbitration. There were various proposals and
counterproposals for different shift schedules, with the
Union stating as to one presented by the Respondent that
it was not acceptable but the Union recognized the
Respondent's funding problems.3 Each of the proposals
made by one party, some accompanied by concessions as
to certain issues, was rejected by the other, the Union
claiming the Respondent's proposals would result in a
substantial reduction in employee earnings, Muller claim-
ing that the Union's proposals would be too costly for the
Respondent.
5. Respondent's withdrawal of offers on April 22
The next meeting took place at the mediation office on
April 22. Muller and O'Conner were there for the
Respondent; Roberts, Redford, Brooks, and Federman for
the Union. The Union's demands still included the
reduction in the work schedule at the same pay, which the
parties discussed. The Union also made other economic
demands, which were discussed, and some were dropped.
Among the various matters discussed were a 4-year
contract with gradual changes in the work schedule, a wage
reopener after 2 years, and the right to strike at that time.
Roberts testified that Muller then announced, over the
Union's objection, that the Respondent was withdrawing
all its prior offers.
Muller testified that, after considerable discussion of the
work schedule proposals, he withdrew all prior offers and:
3 As to one of these proposals shown by his notes, Muller testified he did
not know what it meant.
I proposed to the Union at that point, We've been
going back and forth on the work schedules. We've
been going back and forth on the wage increases. Let us
get off dead center. Let me give you an entire package
that you can look at and accept, reject, modify or make
proposals on. I will give you a complete package.
At that point the Union met with the Mediator alone
outside of our presence. The Mediator came back and
said, "The Union wants all economics that were made
prior to the strike left on the table, all economic
concessions left on the table," that they want the
arbitration, our request for arbitration dropped. "The
Union will accept the proposal of the Company as
made on March 26th prior to the strike."
Muller testified further that the mediator said the Union
wanted the Respondent to drop all its litigation with
reference to strike damage actions. When the parties met
again face to face, Muller raised a question about retention
of the replacements hired by the Respondent. Redford
insisted that the strikers be taken back according to
seniority, and that any reductions in personnel be among
the most junior, which meant the replacements. Muller
responded, as he testified, "Well, that may give us some
problems."
There was another meeting in the mediation office on
about May 3. Roberts was not sure of the date, and
Muller's notes did not show it. Muller and O'Conner
represented the Respondent and Roberts, Redford, and
Brooks represented the Union. The only issues discussed
related to the job rights of strikers and replacements.
Muller stated that the Respondent had hired a number of
replacements and wished to retain them, that those strikers
who wished to come back should apply for jobs, that they
would be recalled as needed, and that those who came
back would retain the benefits accumulated by seniority.
The Union insisted on application of the contract seniority
provisions to this reinstatement issue. Redford maintained
that otherwise no contract could be concluded, whatever
other issues were resolved. No agreement was reached on
this matter. Roberts testified that he then recommended
they try to work out the contract provisions that were still
open and get back later to the reinstatement issue, and that
Muller insisted that was the first issue that had to be settled
before they could get back to discussing the others, but said
he would be very flexible on it, and suggested Roberts
discuss it with the union committee and membership and
then meet again "in a few days . .. The few days turned
out to be a few weeks."
The next meeting was on or about May 25. Muller,
Bramnick, and O'Conner represented the Respondent, and
Roberts, Redford, Brooks, Lawrence, and Lecuyer repre-
sented the Union. According to Roberts' testimony: "I told
Mr. Muller that we would be flexible on the call-back. I
didn't go into details, but I think he understood what I
meant, and he says, 'All right. That's the main issue.' I says,
'Well, let's work out the contract.' He says, well, he would
have to draw up some proposals and would need some
time. He has to get back with Mr. Randle and he will come
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RANDLE-EASTERN AMBULANCE SERVICE
back with a set of proposals. I says, 'All right. Let's get it
going, get it done as quickly as we can so we can get the
strike over with.' We then broke up."
Muller testified that "Roberts opened the meeting by
saying that he wants the Company to make a complete
package proposal, and added to that, he wants the original
package back on the table. I responded by saying that the
original package will not go back on the table." Muller
testified further that, after a caucus, "Roberts says, 'We
will be flexible.' This is the first use of the term 'flexible.'
Roberts says, 'We will be flexible on the replacement issue,
but we want a complete package proposal to consider.' "
Muller testified that he asked the Union to give him until
June 2 "to get a complete proposal together," and that the
meeting then closed.
6. Respondent's new proposals on June 1
The next meeting was on June I with the same
representatives present. Muller presented to the Union
about 8-10 proposals which, he testified, with provisions in
the old contract that were not changed, would make a
complete contract. The proposals contained no work
schedule, replaced with a broader management rights
clause the one to which the parties previously agreed,4 and
reduced the wage progression that had been in effect under
the expired contract from 6 cents every 6 months to 5 cents
a year.5
Roberts testified that the Union, after a caucus, pointed
out that the management rights clause in the tentative
agreement reached on March 10 had been omitted and a
new one substituted similar to the one in the prior contract.
He also testified: "But the main change is they didn't
address themselves to the work schedule. That was one of
our main problems with these proposals.... We had
asked that there be a work schedule, and even if it was the
same 84 hour work week, as long as the guys knew what
they were going to work, you know, the hours they were
going to work when they went back. At that time, Mr.
O'Conner made the statement that they did not know how
many hours a week the men would work, that they would
post a notice on the bulletin board a week prior to each
shift, each schedule change, and at that time they would
find out what hours they were going to work and how
many hours they were going to work. That was unaccept-
able to us and that was one of the major disagreements at
that meeting. We asked them to come back with a work
schedule that we can present to the people. They said they
would get together with Mr. Randle and try to work
something up." Roberts also testified that the Respondent
asserted it had a problem on work schedule as it did not
know what the schedule would be, and asked the Union to
suggest language; that the Union wanted 24 on, 48 off, but
offered to stay with the old 24 and 24; that the Respondent
said needs had changed after the strike; and that he asked
what the Respondent's work schedule was at that time,
although he knew it from picket line rumors, but both
4 The synopsis of the tentative agreement between the parties contains a
provision: "Rewrite management clause deleting restrictive language."
I The provision in question provides under the heading "WAGE" that,
effective upon execution of the agreement, "all wages will be increased by 5
Muller and O'Conner said they did not know what the
current schedule was.
Muller testified that Roberts pointed out there was no
work schedule in the Respondent's proposals; that he said
that was omitted because he did not know what to propose;
that he asked the union representatives to suggest language
but they would not; that Roberts asked if the Respondent
did not know what the proposals were, and O'Conner
replied that he could not anticipate what the needs would
be but could post weekly schedules; that Roberts was
asked if he would please help by giving the Respondent a
schedule, but made no response; and that there was further
discussion of the proposals, which he could not recall,
before the Union indicated it would study them.
Muller also testified that, "I think it was in the context of
the replacement issue, Redford made the comment, 'Well
you know, 50 to 25 percent of your employees are not
coming back to work' "; and that, when he asked how
Redford knew this, Redford said he heard it from the
membership. O'Conner testified that he heard this conver-
sation.
Roberts also testified that "I heard the statement made
that we estimated there would be 25 to 50% not coming
back"; that he did not know if Redford or someone else
made this comment "but I know it was made"; that Muller
might have asked where Redford got this information; and
that Roberts did not recall it but Redford might have said
he was getting it from the membership. Redford, who had
been present throughout the hearing, was called by the
General Counsel as a rebuttal witness. He testified that he
heard Muller testify that he said 25-50 percent were not
returning, that he never said that or anything like it, and,
on cross-examination, that he did not recall Roberts
testifying that Redford said this.
There was a meeting on June 2 at which the parties met
separately with the mediator. According to Roberts'
testimony, the Union offered to drop some economic
proposals for a work schedule, suggested that anyone on
the payroll from March 31 could stay but that men be
recalled by seniority as of June 1, and asked that the
Respondent's lawsuit be dropped.
According to Muller's testimony, the Union's positions
conveyed by the mediator were that it would reject any
contract not containing a work schedule; as Muller
interpreted his notes, any replacement hired after June 1
would be replaced by a striker who wanted to come back to
work; certain seniority provisions had to be clarified to
protect the strikers; the Union would waive any wage
increase if the progression provision of 6 cents every 6
months were retained; and all lawsuits had to be with-
drawn.
7. Respondent's termination of negotiations on
June 7
Muller testified that he met with Randle, he thought at
his law office, "possibly" with Bramnick present but Muller
did not think O'Conner was there, "probably" on June I
cents per hour: commencing the second year of this Agreement. all wages
will be increased an additional 5 cents per year." The expired contract
provided that "Wages will be supplemented by increases of $.06 per hour for
each six-month period of continuous employment."
547
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the negotiation session; that he told Randle of
Redford's comment that "about 'Fifty to 25 or 20 % aren't
coming back to work' "; that he asked Randle if "your
people still want this Union," and Randle replied, "I don't
know"; that Randle stated how many replacements had
been hired but Muller did not recall the numbers
mentioned; and that Randle also said many returning
strikers had sent him copies of their letters resigning from
the Union, and other strikers had informed him they would
never come back to work for the Respondent.
A meeting was scheduled for June 7 with the mediator.
Muller, Bramnick, and O'Conner were there for the
Respondent; Roberts, Redford, Lawrence, Lecuyer, and
Greenfield, the Union's attorney, for the Union. Roberts
testified that "Mr. Muller made the statement that he
didn't think we represented a majority of the people"; that
Muller said he had discussed this with Randle and
O'Conner and they doubted that the Union represented a
majority; that there was some discussion of the Respon-
dent's basis for this doubt; and that Muller "refused to
negotiate with us any longer."
Muller, who took no notes at this meeting, testified from
notes taken by Bramnick, which he stated were in accord
with his recollection, that:
I opened the meeting by telling the Union committee
that over the last week Mr. Randall [sic] and Mr.
O'Conner have been considering whether or not-now
this is what I told the Committee-whether or not the
Union still represented a majority of the employees.
I told the Union committee further that based on the
information we had that Mr. Randle did not believe
that the Union still represented a majority of employ-
ees.
Mr. Redford said, "Well, what are your reasons for
this?" I told him the number of rehires, new hires that
we have had-I am sorry, I said new hires-the number
of new hires we have had, the people who have crossed
the picket line, and at times, and I told him this a fairly
rough picket line to come to work, the people who have
resigned from the Union and the-let's see-the people
that resigned from the Union. That's all. Those are the
elements I gave to the Union across the table. That's
all."
Muller testified further that Redford said the proper
procedure was for the Respondent to file a decertification
petition; that, after a caucus, the Union asserted that the
Respondent was not bargaining in good faith; and that he
replied the Respondent had done so but now "we doubt
you represent a majority." Muller testified, on cross-
examination, that he did not know how many had resigned
from the Union, but Randle knew that, as well as how
many had resigned from their jobs with the Respondent
and how many replacements had been hired; and that
Randle computed figures on strikers not returning based
on Redford's remark. Muller also testified that his office
filed a petition for an election but the Board declined to
process it. There were no further negotiations after June 7.
Randle testified that he concluded, before the June 7
negotiation session, that he doubted the union majority;
that, as he and O'Conner handled hire of replacements and
rehire of strikers, he knew how many strikers came back,
how many new employees were hired, the number of
applicants waiting for their licenses to be renewed, and the
number who resigned from their jobs with the Respondent
so they could seek work as individuals who quit their jobs
rather than as strikers. As to the numbers involved, Randle
testified that, of about 177 in the unit, about 166 went on
strike; that in June he had hired almost 50 replacements
and rehired about 50 strikers; that about 10 sent letters of
resignation from their jobs with the Respondent, one of
whom was moving and wanted his vacation pay; that he
received about 20 copies of letters resigning from the
Union from employees who, when they were reinstated,
told him others had resigned also; that the copies of these
letters came by mail or were hand delivered, none with
covering letters; and that he was not certain when he
received them over a period possibly of months, or whether
it was before or after these people were reinstated but he
presumed it was after. None of these letters was placed in
evidence. Randle also asserted that it was never company
policy to require returning strikers to resign from the
Union, and he never inquired if they had done so.
The Respondent was permitted to place in evidence an
"Affidavit," dated June 15, prepared by Randle for the
hearing. It states that 47 permanent replacements had been
hired, of whom "several have indicated that they have no
desire to be represented by the union," naming 6 who
"indicated their disinterest in the union or were the victims
of union violence"; that 46 strikers crossed the picket line
and were reinstated, of whom 19 named employees
informed the Respondent they had resigned from the
Union, and some indicated others who were reinstated had
also resigned; and that 10 named strikers had formally
resigned from theirjobs with the Respondent.
It also states that "at least" five strikers would not be
reinstated because of "serious misconduct during the
strike," naming Kelleher, Stewart, Bonilla, Pujol, and
Sohlin. Randle first testified he would have to look at the
files to name the five involved, then that he could recall
four, naming Bonilla, Stewart, Pujol, and Lucuyer. Randle
stated in his testimony and affidavit that none would be
reinstated because of the misconduct, then testified
Lecuyer had returned to work and was still employed. He
also testified none had as of June 7 been convicted of the
conduct charged by the Respondent.
Randle, who states in the affidavit that Redford had said
"that he had information . . . that 'somewhere between
509% to 25% of the strikers were not coming back-they had
just gone off,' " testified that this was a factor in his
doubting the Union's majority. The affidavit also states
that 10, not named, have requested reinstatement and were
placed on a preferential hiring list; and that, because of
economic considerations including the reduction in county
calls, the Respondent was fully staffed, and new employees
or strikers would be added only "on an occasional and
infrequent basis."
The Respondent operates both private ambulance
service and a service under contract with the county.
Randle testified that, when the strike began, the county
suspended the contract and provided that fire chiefs would
implement the service when the Respondent was inade-
548
RANDLE-EASTERN AMBULANCE SERVICE
quately staffed to handle it, and that there was a sharp
decrease in the Respondent's business during April and
May. Randle also testified that he requested resumption of
the contract in early May, and that he was at the county
meeting on June 3 when resumption of the contract was
approved.
C. The Provenzano Interview
Turek, who was employed by the Respondent as an
ambulance attendant for about 8 years, went on strike on
March 31, and had obtained another job prior to the
hearing. He testified that he and two other strikers, Duffe
and Haney, met as they were going to Provenzano's office
on about June 3 to ask for reemployment; that Provenzano
used to do the hiring but Turek did not know if he was
doing it at that time; that Provenzano said they had to take
a polygraph test, were expected to resign from the Union,
would be recommended by him for reemployment, and
would be called; and that he responded that he was "aware
about the Polygraph and resigning from the Union." He
denied on cross-examination that Provenzano was asked if
they had to resign from the Union and said he did not
know, and that Provenzano said they had to speak to
Randle or O'Conner about this. Turek also testified on
cross-examination that O'Conner later got in touch with
him; that he raised the subject with O'Conner of resigning
from the Union, and asked if this was still required; that
O'Conner responded, "I didn't say it"; and that when he
said Provenzano told him this, O'Conner merely repeat-
ed,"I didn't say it," but never expressly answered whether
Turek could stay in the Union or had to resign. Turek
denied that O'Conner said it was entirely up to Turek what
organizations to belong to, or said he and Randle handled
these matters and Provenzano could not answer for them.
Turek admitted he was not aware of any other employee
who was told by the Respondent he had to resign from the
Union.
Haney, who was an ambulance driver for the Respon-
dent about 5 or 6 years, testified, as a witness for the
Respondent, that he was one of the three strikers who went
to Provenzano's office in early June.6 Haney testified that
Provenzano said they had to see Randle or O'Conner and
had to take a lie detector test, but that there was no
mention of the Union or resigning. He also testified that he
knew of none of those previously reinstated who was
required to resign from the Union. Haney also testified that
he was rehired about June 15; that he received a message
that Randle called him the same day as the talk with
Provenzano; that he called back and was told to come in;
that he did so and saw Randle and O'Conner; that Randle
said there were no hard feelings about the strike, Haney
had a good record and could come back to work, and he
was glad to have Haney back; that Randle said nothing
about resigning from the Union; that he went back to work
the next day; and that he was still a member of the Union
as were some of the other strikers reinstated before and
after he was.
Provenzano testified that he has been in charge of the
Respondent's ambulance service operations since 1961;
that his functions had included being in charge of hiring
personnel, of equipment, and of crew scheduling; and that,
after the strike began, he continued to be in charge of
hiring new employees, but was directed to refer to Randle
or O'Conner any strikers seeking to return to work, and did
so. He also testified that "many" strikers spoke to him
about reinstatement but he could not recall the dates or the
names except one, Ferguson, he met outside the building
"Maybe" 5 or 6 weeks after the strike began; that "There
was numerous people who had requested on the tele-
phone"; that "Very few people came to see me" and, at
another point, that "No one came into my office specifical-
ly"; and that he recalled the three strikers requesting
reinstatement on about June 3 as they were the only ones
who came to the office to do so. He testified that Duffe
came in first alone and asked what he had to do to get back
to work, and he told Duffe to leave "his name and phone
number" which he would give to Randle or O'Conner; that
Haney and Turek joined them and asked to get their jobs
back; and that he told them he had their telephone
numbers and would give them to Randle. On cross-
examination, however, Provenzano testified that Duffe
talked about fishing, and reinstatement was not mentioned
while they were alone; that he thought the other two "did
indicate that they would like to come back to work" but
Duffe, while the other two were present, "said 'we,'
meaning plural, 'would like to know what do we have to do
in order to come back to work' "; that he stated once the
same answer as to all three; and that all three gave him
their telephone numbers and he wrote them down, but did
not give him their names, which he had.
Provenzano also testified that nothing was said in this
interview about a polygraph test, and that he was certain
there was no mention of the Union or of resignations.
Asked by counsel for the Respondent whether he recalled
any striker seeking reinstatement who asked "whether
resignation from the union was a condition of employ-
ment," Provenzano answered, "Oh, yes, sir. There was a
few. .... I don't recollect their names, but there had been
a few inquiries made by personnel.... I told them I
didn't know; that they would have to take this conversa-
tion up with either Mr. Randle or Mr. O'Conner." On
cross-examination, however, the following colloquy took
place:
Q. And who else do you recall that came to see you
in your office and said, "I would like to go back to
work"?
A. No one came into my office specifically.
Q. Well, okay. You said, in direct testimony, and
stop me if I'm wrong, a few strikers inquired about
whether they had to resign from the union.
A. Yes sir.
Q. Okay. I ask you who they are. Tell me one
name, and tell me where the inquiry took place. Like
Ferguson, for instance, did he inquire about resigna-
tion?
I The third. Duffe, was not called as a witness.
549
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. No. He just wanted to know what he had to do
to come back to work.
Q. Okay. He didn't ask whether he had to resign
from the union.
A. Nobody has asked me that.
Q. Well, you said a few strikers inquired about
resigning from the union. You testified on direct
testimony. Don't you recall that?
A. But no one, sir, directly come into my office to
ask me this.
Q. Okay. Forget about the office. Anyplace, Mr.
Provenzano, any conversation you had with any striker.
Tell me about any conversation where the striker said
A. (Interposing) There were a few indications, a
few cases of employees who had returned back to work,
who are back working, had asked, and I told them they
would have to discuss this with Mr. O'Conner or Mr.
Randle. I have had no conversations with anybody
other than that.
Q. All right. There were employees, then, that
asked you if they had to resign from the union.
A. Yes, sir.
Q. That's clear.
A. Mm-hmm.
Q. Okay. And your answer to them was?
A. To either speak to Mr. O'Conner or Mr. Randle.
Q. You also said that you didn't know whether
they have to resign or not. Isn't that a fact?
A. That is correct.
Q. You said, "I don't know."
A. I don't know.
O'Conner testified that Provenzano told him Turek
requested reinstatement; he got in touch with Turek in late
June or early July through Duffe, who delivered the
message for him; and their conversation was as follows:
I told Turek that I understood that he wanted to come
back to work. I asked him what his intentions were. He
didn't respond to that, but he began asking me
questions about the work schedule and where he would
be assigned. I told him I didn't have the schedule in
front of me, I didn't know, but he would be assigned to
whatever position was vacant. He then made the
statement to the effect, "I guess I'll have to quit the
union." I asked him who had told him that. He said
that several days ago he had talked to Provenzano, and
Provenzano had implied to him that he would have to. I
told Turek that he could take it straight from me that it
didn't make any difference what organization he
belonged to, and that I was only interested in filling an
ambulance service position. Turek then said that he
would have to discuss the matter with his wife, and I
asked him to call me back.
O'Conner testified further that he called Duffe a few days
after calling Turek; that Duffe said he was not interested in
coming back because of the travel distance and the work
schedule; that Duffe said nothing about having to resign
from the Union; and that neither he nor any other official
of the Respondent said anything about this to Duffe.
As noted above, Randle testified that it was never
company policy to require returning strikers to resign from
the Union, and that he never inquired if they had done so.
He did not testify as to any instructions in this regard given
to Provenzano or other supervisors. In fact, although
Provenzano testified that he continued to hire new
employees after the strike and referred only returning
strikers to Randle or O'Conner, and O'Conner testified
that Provenzano referred to him or to Randle strikers who
were seeking reinstatement, Randle testified that he and
O'Conner "handled . .. any strikers who wanted to return
to work, any replacements that had to be hired," and that
Provenzano was not responsible for this after commence-
ment of the strike.
D. Contentions of the Parties
The General Counsel maintained in his closing argument
that the Respondent bargained in good faith from the first
negotiation session on February 2 through the session on
March 29, when the parties reached tentative agreement on
a new contract, subject to ratification by the union
membership; that the membership, in disregard of the
union committee's recommendations, rejected the agree-
ment and voted to go on strike; and that the Respondent
resumed good-faith bargaining on April 8, about a week
after the strike began. The General Counsel also contended
that, at the next negotiation session on April 22, the
Respondent withdrew all proposals and agreements then
on the bargaining table, economic and noneconomic, and
that the Respondent, after several more negotiation
sessions, on June I submitted new proposals which in some
respects offered the Union less than was in the tentative
agreement and in the expired contract. These proposals
provided for a broader management rights clause than the
parties previously agreed on, for seniority upon rehire to
date from the rehire rather than from the original hire as in
the expired contract, and for annual 5-cent wage increases
instead of 6-cent increases every 6 months as in the expired
contract, and Respondent added a provision that neither
the Union nor the employees it represents would "honor
any picket sign or line at any location." The General
Counsel argued that this was an offer the Union could not
accept, and that the Respondent's conduct dating from
April 22, when it withdrew all proposals and agreements,
constituted bad-faith bargaining, in violation of Section
8(a)(5) and (1) of the Act.
The General Counsel also argued that the copies of
resignation letters about which Randle testified indicated
only withdrawal from membership, not disavowal of union
representation; that the Respondent's asserted good-faith
doubt of the Union's continuing majority status was not
warranted in all the circumstances of this case; that the
Respondent, by withdrawing recognition and refusing, on
and after June 7, to bargain with the Union, further
violated Section 8(aX5) and (1) of the Act; and that an
economic strike that began at midnight on March 31 was
by the foregoing conduct prolonged and converted into an
unfair labor practice strike. The General Counsel also
argued that Provenzano told strikers applying for reinstate-
ment, as Turek testified, they had to resign from the Union
550
RANDLE-EASTERN AMBULANCE SERVICE
before they could be rehired, in violation of Section 8(aXl)
of the Act.
The Respondent urges in its brief that it had a right to
withdraw its prestrike offers in the circumstances herein;
that the package proposal it gave the Union on June I
"reflected a withdrawal from pre-strike concessions and
was basically a return to the old contract .. ."; that it did
not before or after the strike engage in bad-faith bargain-
ing; that at all times subsequent to June 1 it properly had a
good-faith doubt that the Union represented a majority of
its employees based on striker replacements, strikers who
returned to work, copies of letters of resignation from the
Union, resignations from employment with the Respon-
dent, charges against some strikers of strike misconduct,
and the Redford remark that 25-50 percent of the strikers
would not return. The Respondent also argues that the
evidence fails to establish that Provenzano told a striker he
must resign from the Union to be reinstated, and that,
assuming arguendo that the statement was made, it did not
constitute a violation of Section 8(aX1), as O'Conner's
repudiation and offer of a job to that striker nullified the
statement.
Concluding Findings
(1) I1 found Provenzano, whose testimony is replete with
inconsistencies and self-contradictions, an unreliable wit-
ness and discredit his testimony. Turek impressed me as a
more candid and straightforward witness than Haney.
Accordingly, I find, based upon the demeanor of the
witnesses and the evidence in its entirety, that Provenzano,
on or about June 3, told striking employees they had to
resign from membership in the Union before they could
return to work for the Respondent, and that the Respon-
dent thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8(aX)(I) of the
Act. I find further that O'Conner's equivocal responses to
Turek on the telephone did not, as the Respondent
contends in its brief, constitute an adequate repudiation of
Provenzano's coercive statement.
(2) Roberts' testimony was uncontradicted as to what
occurred in the negotiation sessions when the Respondent
was represented by Randle and O'Conner, and much of his
testimony as to the sessions after Muller became the
Respondent's spokesman was corroborated by Muller.
Where their testimony is in conflict, I found Roberts'
testimony based on his recollection more candid and
reliable than Muller's testimony based on his notes,7 and,
therefore, in those instances credit Roberts.
The record shows that on March 26 the parties
negotiated and reached agreement on a new contract
subject to membership ratification. The union negotiating
committee unanimously recommended ratification, but the
membership nevertheless refused to ratify and voted to
strike at midnight on March 31. The parties thereafter
continued to meet and negotiate. On April 22, however, the
Respondent admittedly withdrew all its offers that were on
7 See John Zink Company, 196 NLRB 942. 946 (1972); Capital Rubber &
Specialtry Co., Inc., 198 NLRB 260(1972).
s Columbia Tribune Publishing Co., 201 NLRB 538, 552 (1973); The
Gerstenslager Company. 202 NLRB 218 (1973); The General Athletic
Products Compan.v, 227 NLRB 1565 (1977).
the table and informed the Union it would submit a
complete new proposal, although, as Muller testified, the
Union objected to this withdrawal and offered to accept
the Respondent's contract proposal made on March 26,
before the strike. At a negotiation session on June 1, the
Respondent presented its new proposals, which set forth a
broader management rights clause than one to which the
parties had agreed, provided for a wage progression lower
than that contained in the expired contract, and contained
no work schedule although this was the principal issue in
the negotiations. The Respondent's representatives main-
tained on June I that they were not able to answer the
Union's questions as to what the work schedule would be,
or even as to what it was at that time. Further, as Muller
testified, the Union's position on June 2, conveyed through
the mediator, included an offer to waive any wage increase
if the progression of 6 cents every 6 months, as provided in
the expired contract, was restored.
The Respondent maintains that it had a right to
withdraw its prior proposals after the membership refused
to ratify the tentative agreement and went on strike. This
action did not follow immediately after the strike, however,
and was not shown to be necessary in order to continue the
Respondent's operations during the strike. It occurred
when negotiations, resumed after the strike with the aid of
a mediator, were making progress toward reaching an
agreement and ending the strike. And it was followed by
the Respondent's presentation of proposals considerably
less advantageous to the membership than those offered by
the Respondent prior to the strike. I am convinced, and
find, in all the relevant circumstances, that the Respondent
on April 22 withdrew all offers on the table and, on June 1,
substituted proposals less beneficial to the employees than
those in the old contract and in the tentative agreement, in
order to prevent resolution of the contract issues and to
undermine the Union's status as bargaining representative.
Accordingly, I find, on the evidence in its entirety, that the
Respondent thereby, on April 22 and June 1, failed and
refused to bargain in good faith, in violation of Section 8(a)
(5) and (1) of the Act.8
(3) The Respondent maintains that it was warranted on
June 7 in withdrawing recognition and refusing to
negotiate further because of its reasonable doubt that the
Union continued to represent a majority of its employees.
It is a well-established Board principle that an incumbent
union enjoys a presumption of continuing majority status,
which may be rebutted; that an employer's refusal to
bargain with such union based on an assertion of a good-
faith doubt of majority status must be supported by
evidence establishing that the union has in fact lost its
majority status or that the employer has sufficient objective
bases for reasonably doubting the union's continuing
majority status;9 and that "the employer bears the burden
of proving the union's loss of majority and the presumption
9 James W Whitfield d/b/a Cutten Supermarket, 220 NLRB 507 (1975);
Tahoe Nugget, Inc. d/b/a Jim Kelley5 Tahoe Nugget, 227 NLRB 357 (1976).
551
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of majority must be rebutted by clear, cogent, and
convincing evidence."'0 I find, therefore, that there is in
this case a presumption of continuing majority status on
which the Union, as the certified and, for years, the
contractual representative of the Respondent's employees,
could rely, and that the Respondent, to rebut this
presumption properly, must show either that the Union in
fact no longer enjoys majority status or that its refusal to
bargain was predicated on a reasonably grounded doubt as
to the Union's continuing majority status. This I find, on
the entire record, the Respondent failed to do.
The Respondent presented Randle's testimony and
affidavit as the evidence in this matter. I found Randle,
however, a vague, hesitant, and unconvincing witness, and
his testimony and affidavit were in many respects inconsis-
tent. Moreover, the record shows that some employees
were still on strike. There is a presumption that strikers
retain their employee status1" and that strikers who were
union members continue to support the Union.' 2 In
addition, the record shows that some of the strikers who
returned to work continued their membership in the
Union.
The Respondent points to the fact that a number of
strikers crossed the picket line to return to work and that a
number of new employees were hired. The Board holds,
however, that "it is a well-settled principle that new
employees are presumed to support the union in the same
ratio as those whom they have replaced. Furthermore,
there is no presumption that an employee has rejected the
union as collective-bargaining representative when the
employee elects not to support the strike." 13
Randle's testimony and affidavit refer to employees who
will not be reinstated because of strike misconduct, contain
variances as to the named individuals involved, and
indicate one had been reinstated. Moreover, the Respon-
dent presented no evidence as to the nature or circum-
stances of this alleged misconduct,' 4 and admitted none
had been convicted of such conduct as of June 7.
Randle claimed that, of 47 permanent replacements
hired, 19 named individuals volunteered that they resigned
from the Union, some said others had also, and a number
sent him copies of their letters of resignation from the
Union. None of these letters was produced at the hearing.
Moreover, the evidence does not establish whether these
individuals renounced their desire for collective representa-
tion or decided to be free riders, accepting collective
representation without paying dues. 15 Although Randle's
affidavit asserts that, of the 47 replacements, "several have
indicated they have no desire to be represented by the
union," it names only 6 individuals who "indicated their
disinterest in the union or were the victims of union
violence." Furthermore, although Randle testified that the
copies of union resignation letters came in at various times
over a period of months, the Respondent never discussed
'° N.L.R.B. v. Vegas Vic, Inc., d/b/a Pioneer Club, 546 F.2d 828 (C.A. 9,
1976); Gulfmont Hotel Company, 147 NLRB 997, 1001 (1964); Jim Kelley's
Tahoe Nugget, supra.
" The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(C.A. 7, 1969); Bralco Metals, Inc., 227 NLRB 973 (1977).
12 Cutten Supermarket, supra.
13 Cutten Supermarket, supra at 509; King Radio Corporation, 208 NLRB
578, 583 (1974): Surface Industries, Inc., 224 NLRB 155 (1976).
the letters, or any other factors on which it relies to show
loss of majority, with the Union until June 7, when it
abruptly withdrew recognition and cut off any further
contract negotiations.
I do not credit Redford's denial and find, on all the
evidence, that Redford made a remark about a number of
strikers not returning to work for the Respondent. Muller
testified that the remark, as he reported to Randle, referred
to about "Fifty to 25 or 20 T%." It is apparent that these
figures were given as an estimate, in support of the Union's
argument that those still on strike should be reinstated on
the basis of seniority as of June 1, after the Respondent had
argued that the reinstatement issue had to be settled before
continuing the discussion of contract issues. Furthermore,
there is no evidence of the extent to which the strikers
referred to in the Redford estimate duplicated individuals
included in Randle's figures. Finally, the record does not
show how many union members decided to resign their
membership as a result of the Respondent's conduct found
to be in violation of Section 8(a) (1) and (5) of the Act.
In conclusion, therefore, I find, based upon the entire
record, that the evidence adduced by the Respondent as to
the union status of strikers and replacements does not
rebut the presumption of the Union's continuing majority
status, does not warrant a reasonable belief that such status
had been lost, and does not provide a sufficient basis to
justify the abrupt termination of negotiations and refusal to
bargain.' 6 Accordingly, I find that the Respondent, by
withdrawing recognition and refusing to negotiate further
with the Union on and after June 7, has failed and refused
to bargain with the Union in good faith, in violation of
Section 8(a)(5) and (1) of the Act.
(4) When the union committee presented its tentative
agreement with the Respondent and recommended ratifi-
cation, the membership rejected the agreement and voted
to strike. The strike that began at midnight on March 31 in
an attempt to obtain more advantageous contract terms
was, as the General Counsel concedes, an economic strike.
I have found above, however, that the Respondent on
April 22 withdrew all its prior contract proposals, over the
Union's objection, and replaced them on June I with
proposals reducing benefits previously offered or available,
including a reduction in the wage progression rates
provided in the expired contract; on June 3 told strikers
they had to resign from union membership to be reem-
ployed; and on June 7 withdrew recognition and refused to
bargain further with the Union because of an asserted
doubt, found not warranted by the evidence, of the Union's
continuing majority status, in violation of Section 8(a)(I)
and (5) of the Act.
I find that these unfair labor practices broadened the
issues between the parties, and showed that the Respon-
dent was attempting not to resolve these issues but to
preclude reaching final agreement and to undermine the
14 See Moore Business Forms, 224 NLRB 393 (1976), 226 NLRB 688
(1976).
'5 The court of appeals stated in N.LRB. v. Vegas Vic, supra at 829,
"The fact that 14 of 24 members of the bargaining unit were not members of
the union does not mean that the union does not have their support."
16 King Radio Corporation, supra, Pride Refining, Inc., 224 NLRB 1353
(1976).
552
RANDLE-EASTERN AMBULANCE SERVICE
Union's representative status. I find further that the
Respondent's conduct on June 7 in withdrawing recogni-
tion and refusing to negotiate further with the Union
"impeded successful negotiations and . . . prevented even
the possibility of the parties reaching agreement," that this
conduct was by its nature a factor in prolonging the strike,
and, therefore, that it converted the economic strike on and
after June 7 into an unfair labor practice strike.' 7 I shall
therefore recommend that the Respondent be ordered,
upon application,1 s to reinstate the unfair labor practice
strikers, who were not permanently replaced during the
economic strike prior to June 7, when the Respondent
unlawfully withdrew recognition and refused to negotiate
further with the Union.'9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
v. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(aX l)
and (5) of the Act, I shall recommend that the Respondent
be ordered to cease and desist therefrom and from in any
like or related manner infringing upon its employee's
Section 7 rights, and to take certain affirmative action
designed to effectuate the policies of the Act.
I have found that the Respondent unlawfully refused to
bargain with the Union, which had been the certified and
contractual representative of its employees for a number of
years. I shall therefore recommend that it be ordered to
bargain collectively with the Union, upon request, concern-
ing rates of pay, wages, hours, and other terms and
conditions of employment, and embody in a signed
agreement any understanding reached.
I have also found that an economic strike was prolonged
and converted into an unfair labor practice strike on June
7, 1976, by the Respondent's conduct in violation of the
Act. I shall therefore recommend that the Respondent be
ordered to offer, upon application, to all the striking
employees who were not permanently replaced while
economic strikers, reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, discharging, if necessary, any replace-
ments hired on or after June 7, 1976, when the economic
strike was prolonged and converted into an unfair labor
practice strike, and to make each of these striking
employees whole for any loss of earnings they may suffer
17 Hawaii Meat Company, Limited, 139 NLRB 966 (1962).
i' Marathon-Clark Cooperative Dairy Association, 137 NLRB 882 (1962).
19 See Southern Beverage Companv, Inc.. 171 NLRB 926; Moore Business
Forms, supra.
20 Bush Hog, Inc.. 176 NLRB 815 (1969), Davis & Hemphill, Inc.. 177
NLRB 282 (1969).
by reason of the Respondent's failure, if any, to reinstate
them within 5 days after the date on which they apply for
reinstatement to the date of the Respondent's offer of
reinstatement, by payment to each of them of a sum of
money equal to the amount he normally would have
earned during said period, less his net earnings, if any,
during such period,20 with backpay computed on a
quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolwvorth Company, 90 NLRB 289,
(1950) and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Randle-Eastern Ambulance Ser-
vice, Inc., and Randle Medical Sales & Rentals, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Transport Workers Union of America, Local 500,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By telling striking employees applying for reinstate-
ment they had to resign from membership in the Union
before they could return to work for the Respondent, and
by other conduct interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices in violation of Section
8(a)(1) of the Act.
4. By refusing to bargain collectively in good faith with
the above-named Union on April 22, June 1, and June 7,
1976, and thereafter, the Respondent has engaged in and is
engaging in unfair labor practices in violation of Section
8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER21
The Respondent, Randle-Eastern Ambulance Service,
Inc., and Randle Medical Sales & Rentals, Inc., Miami,
Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Telling striking employees applying for reinstatement
they have to resign from membership in Transport
Workers Union of America, Local 500, AFL-CIO, before
they can return to work for the Respondent, or in any like
or related manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
21 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 waived for all purposes.
553
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Refusing to bargain collectively with the above-
named Union as the exclusive collective-bargaining repre-
sentative of its employees in the unit found appropriate.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon application, offer to all the employees engaged
in an unfair labor practice strike, who were not permanent-
ly replaced while economic strikers, reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, discharging, if necessary, any
replacements hired on or after June 7, 1976, when the
economic strike was prolonged and converted into an
unfair labor practice strike.
(b) Make each of these striking employees whole for any
loss of earnings they may suffer by reason of the
Respondent's failure, if any, to reinstate them, upon
application, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Upon request, bargain collectively with the above-
named Union as the exclusive representative of the
employees in the appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions of
22 In the event that the Board's 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
employment, and embody in a signed agreement any
understanding reached. The bargaining unit is:
All ambulance drivers and ambulance attendants, all
mechanics (regular and part-time), all rental and
service employees, all medical examiner drivers and
attendants, and all hearse and limousine drivers, at the
Respondent's Miami, Florida, location, excluding all
office clerical employees, guards, professional employ-
ees, chief mechanic, dispatchers, and all supervisors as
defined in the Act.
(d) Post at its place of business in Miami, Florida, copies
of the attached notice marked "Appendix." 2 2 Copies of
said notice, on forms provided by the Regional Director for
Region 12, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
554