Regional Ambulance, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1991

298 N.L.R.B. 19 (N.L.R.B. 1991)

REGIONAL AMBULANCE 19
Regional Medical Systems d/b/a Regional Ambu-
lance, Inc. and Hospital & Health Care Work-
ers Union, Local 250, Service Employees Inter-
national Union, AFL-CIO. Case 32-CA-9577
March 30, 1991 -
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 7, 1989, Administrative Law
Judge William L. Schmidt issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a state-
ment in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adlopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Regional
Medical Systems, d/b/a Regional Ambulance, Inc.,
Fremont, California, its officers , agents, successors,
and assigns , shall take the action set forth in the
Order.
1 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law ,fudge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 The judge inadvertently referred to the unfair labor practice found in
his Conclusion of Law 3, as Sec. 8(a)(1) and (5) instead of Sec. 8(a)(1)
and (3). We correct this error.
Virginia L. Jordan, Esq., for the General Counsel.
Fred Long, Esq. (West Coast Industrial Relations Associa-
tion), of Los Gatos, California, with Wayne J. Peterson,
Esq. on the brief, for the Respondent.
Paul Supton and William Sokol, Esq. (Van Bourg, Wein-
berg, Roger & Rosenfeld), of San Francisco, California,
for the Charging Party.
spondent or Company) on April 21, 1988. The charge al-
leges that the Company engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act).
Based on that charge, the Regional Director for
Region 32 of the National Labor Relations Board (the
Board) issued a complaint and notice of hearing before
an administrative law judge. The gravamen of the com-
plaint is that Respondent discriminated against Richard
Newton, a paramedic, for reasons related to his union ac-
tivities by refusing to offer him on-call assignments and
by requesting that authorities of Alameda County, Cali-
fornia, refuse to assign Newton as a field evaluator of
Respondent's employees.
Respondent filed a timely answer to the complaint
wherein it admitted that it was subject to the Board's ju-
risdiction but denied that it had engaged in the unfair
labor practices alleged. At the hearing, Respondent
amended its answer to admit that it had refused to utilize
Newton as an on-call employee but continued to deny
that it engaged in an unfair labor practice by doing so.
I heard this matter on July 15 and 22, 1988, at Oak-
land, California. Having now carefully reviewed the
record, considered the credibility of the witnesses who
appeared before me, and studied the posthearing briefs
filed on behalf of the General Counsel and the Respond-
ent, I conclude that the Respondent engaged in the
unfair labor practices alleged and make the following
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings
The complaint alleges that-since on or about Novem-
ber 27, 1987, Respondent has refused to offer Newton
on-call assignments as a paramedic and in mid -February
or early March 1988, Respondent requested that a repre-
sentative of Alameda County not assign Newton as a
field evaluator of Respondent's employees. This action,
the complaint charges, was motivated by Newton's union
or concerted activities in violation of Section 8(a)(1) and
(3) of the Act.I
As noted, Respondent admits that it refused to provide
Newton with on-call work. Although 'its answer denies
any request of Alameda County officials that they not
assign Newton as a field evaluator for its employees, Re-
spondent's posthearing brief concedes that it took such
action. Respondent, however, does not concede that its
actions were motivated by an intention to discriminate
against Newton because of his union activity. Rather,
Respondent contends that its actions pertaining to
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge.
Hospital and Health Care Workers Union, Local 250,
Service Employees International Union, AFL-CIO
(Local 250 or the Union) filed a charge against Regional
Medical Systems d/b/a Regional Ambulance, Inc. (Re-
1 Sec. 8(a)(1) provides that it is an unfair labor practice for an employ-
er to "interfere with, restrain, or coerce employees in the exercise of
rights guaranteed in Sec. 7 of the Act." Sec 7 provides that employees
have the right to "form , join, or assist labor organizations... and to
engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid and protection " Sec. 8(a)(3) provides that it is 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 en-
courage or discourage membership in any labor organization "
298 NLRB No. 5
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Newton were for cause. Respondent asserts no affirma-
tive defenses.
B. The Evidence
1. Background
Respondent, a California corporation with an office
and place of business in Fremont, California, is engaged
in the operation of an ambulance service and provides
related medical services.2 To perform its service, Re-
spondent also maintains several satellite locations
throughout Alameda and Contra Costa Counties to facili-
tate its emergency call response time. The ambulances
are staffed with employees certified as paramedics and
emergency medical technicians (EMTs).
Newton, the alleged discriminatee, began work for Re-
spondent as a paramedic in March 1985. In May 1986,
Newton was promoted to the nonsupervisory crew chief
position which he retained for the remainder of his em-
ployment.
No serious question exists about Newton's competence
as a paramedic. Apart from promoting Newton to the
crew chief position, Respondent paid Newton extra com-
pensation to train and retrain other paramedics and in-
terns. Moreover, Newton served as a contract field eval-
uator for the Alameda County Emergency Medical Serv-
ices District (EMSD). In that capacity, he provided
EMSD with reports concerning provider paramedics
seeking county certification. Finally, Newton also
worked as an instructional aide in the paramedic pro-
gram at Chabots College in Hayward, California.
Some of Newton's superiors and fellow employees,
however, viewed Newton as a demanding and overbear-
ing individual. Respondent's president, Earl Riggs, de-
scribed Newton as a disgruntled, negative employee. Ac-
cording to Riggs, Newton' "complained" a lot about
wages, working conditions, the benefit structure, the
management structure, and supervisors.
Field Supervisor Mike Ragone, whose routine duties
included daily inspections of the ambulance units, studi-
ously avoided Newton during his last 4 or 5 months of
employment because of Newton's complaints. He re-
called one incident when 'Newton demanded that an
EMT driver be relieved from duty on his shift because
he got lost enroute to a hospital in an emergency situa-
tion.
Scheduling Supervisor Steve Ewing said he had diffi-
culty finding partners to assign with Newton because
some employees found it difficult to work with him.
EMT Paul Patenaube testified that Newton had a
tendency to become angry over petty matters and that
he was an overbearing and intimidating coworker.
Paramedic Stephanie Buller described Newton as
being so confrontational as to make it difficult for them
to work together as a team. Buller claimed that she re-
quested the scheduling supervisor not assign her with
Newton.
2 Respondent admits that it meets the Board's dollar volume standard
for exercising jurisdiction under the Act and that it purchased and re-
ceived goods exceeding a de minunis amount which originated outside
California I find on that basis that it would effectuate the Act for the
Board to exercise its jurisdiction to resolve the labor dispute in this case.
Anthony Patch, a paramedic evaluated and failed by
Newton for county certification, claimed that Newton
was biased against him because he opposed unioniza-
tion.3
There is no evidence that any disciplinary action of
any kind was ever taken against Newton during his em-
ployment by Respondent. Ragone, in effect, described
Respondent's paramedics as high calibre people who per-
form very stressful work and often strongly disagree
about approaches to patient treatment. Unquestionably
the work here involves life and death matters in the liter-
al sense. Newton very clearly took the work seriously.
2. The organizing drive
Early in 1987, the Union commenced an organizing
drive among Respondent's nonprofessional employees.
This drive led to the filing of a NLRB election petition
in mid-July and an election on September 17 and 18. The
tally issued immediately after the election disclosed 145
votes for the Union, 150 votes against the Union, and 12
determinative challenged ballots. Following a resolution
of the challenged ballots, a revised tally issued on No-
vember 30 showing that 150 votes were cast for the
Union and 150 votes cast against. Consequently, the
Union was not certified as the bargaining representative.
Newton was a leading and vocal supporter of the
Union's effort. At the election, Newton was designated
by the Union as one of its official observers. Prior to the
election, Newton's support of the Union's cause was
equally open and known. For example, on one occasion
during the campaign Newton attended and addressed a
meeting of the Alameda County Board of Supervisors in
support of unionizing Respondent's employees. Earl
Riggs, Respondent's president, was in attendance at the
same meeting and overheard Newton's remarks.
Other evidence shows that Newton was known to
Riggs as a leading union proponent. Thus, on one occa-
sion either shortly before or shortly after the above-ref-
erenced board of supervisors meeting, an inquiry was di-
rected to Riggs about the Union at-an employee meeting.
Riggs replied:. "You'd have to ask Rich Newton or Steve
Dorst what they think the union will do for you."
Not all of the reactions by Respondent's officials
toward Newton's union activities were innocuous. On
September 18 (the second day of the 2-day NLRB elec-
tion held among Respondent's employees) Newton at-
tended a Health Officers Advisory Committee meeting
for the EMSD.4 Following the meeting, Newton talked
with Respondent's training officer concerning methods
to involve Respondent's paramedics in the process of
changing county protocols. During their discussion, Re-
spondent's operations director, Dave Fryman, ap-
8 Notwithstanding Patch's feelings, there seems to be little question
concerning the validity of Newton's observations of patient treatment by
Patch and the fact that county certification was justifiably denied at that
time. It is evident county officials were consulted and concurred in each
of Newton's individual evaluations submitted in the Patch certifica thon
process. Patch was later certified after counselling by the Respondent's
medical trainer and a second field evaluation by another county evalua-
tor.
4 Newton was a member of that committee and regularly attended its
meetings.
REGIONAL AMBULANCE 21
proached and asked (rhetorically) why Newton did not
get the Union to change the protocols.
Shortly thereafter Newton and Fryman had a further
exchange. As they were leaving the building where the
EMSD meeting was held, Newton asked Fryman not to
make the union matter "personal." Fryman responded
that as far as he was concerned it was personal because
of all of the "lies" Newton had spread about him during
the campaign . According to Newton, Fryman was visi-
bly agitated and was clenching his fists. Newton claims
that he asked Fryman if there was someway to resolve
the matter between them. Fryman said he would resolve
it after the election was over. When Newton asked
Fryman to explain, Fryman told him that "if you win the
vote I won't be able to do anything but if we win the
vote I'll take care of you."5
Fryman did not testify nor was his failure to testify ex-
plained.
After the election results were known on the night of
the election, Newton claims that Ewing called him late
at night to express elation over the results saying that he
was attending a victory celebration at Rigg's home.6
Ewing recalls that he telephoned Newton late that night
but claimed that he had been assigned to call all employ-
ees to advise them about the election result.
3. Newton's resignation
The last shift Newton worked was on November 22.
He was next scheduled to work shifts on November 24
and 29 and December 1. Newton notified the Respond-
ent that he was too ill to work the November 24 shift.
The time between November 25 and 29 were Newton's
regularly scheduled days off.
On November 27 Newton went to Respondent's head-
quarters and tendered a letter to Operations Supervisor
Mike Ragone requesting a change in status from a full-
time paramedic to a part-time on-call paramedic. The
letter requests that his status be changed after December
1.
The letter, in effect, constituted Newton's resignation
as a full-time employee. The Respondent, however,
maintains an on-call list of paramedics which it uses fre-
quently to staff shifts where full-time employees are
absent, on vacation; or where the shift cannot be staffed
because of the chronic shortage of qualified paramedics.'
Because Newton planned to return to school in January
1988, he was seeking to reduce his workload to accom
modate his school schedule.8
The testimony is varied about what transpired when
Newton submitted his resignation to Ragone. According
to Newton, when Ragone read the letter he appeared
somewhat distraught and remarked, "Oh no, not another
5 No allegation was made in the complaint that Fryman 's remark on
this occasion was unlawful interference
6 One can surmise that even though there were enough challenged bal-
lots to affect the outcome of the election, the parties were aware of what
the eventual outcome would be on the night of September 18.
7 An emergency ambulance must be staffed with at least one paramedic
to respond to emergency calls. If no paramedic is available , the ambu-
lance is effectively removed from emergency service
8 Newton's full-time schedule required that he work 56 hours per
week. At the time Newton was seeking courses to fulfill his ambition to
become a nurse.
one!" or words to that effect. Newton says he then asked
Ragone if he could use the 2 weeks' vacation he had ac-
crued in lieu of giving 2 weeks' written notice.9 By
Newton's version, Ragone provided a vacation request
form which Newton completed.
Newton says that Scheduling Supervisor Steve Ewing
arrived in Ragone's office at that point and Ragone
handed Ewing the resignation letter. According to
Newton, Ewing was visibly upset-he began stomping
his feet and told Ragone that they needed people to
work. Purportedly, Ragone told Ewing not to make such
a big deal about it because they were always shorthand-
ed. Ewing then asked Newton to work the following
night but Newton refused saying that he really needed
the time off. By this time, Newton had completed the
paid-time-off form and handed it to Ewing. Ragone then
took Newton to the personnel office where arrangements
were made concerning his final checks.
When Newton concluded his affairs in the personnel
office, Ragone asked to speak privately with him about
his sudden departure. During this exchange, Newton as-
serted that although his schooling was the primary moti-
vation, other factors were involved. When Ragone asked
about the other factors, Newton cited his dissatisfaction
about the exchange on the last day of the election with
Fryman, a phone call from Ewing shortly after the origi-
nal tally issued, rumors which were being spread about
union involvement in the sabotage of ambulances at an-
other company, and some substandard and incompetent
personnel with whom he worked.
Newton gave no indication that his exchange with
either Ragone or Ewing on the day of his resignation
was viperous or otherwise uncomfortable. He claims that
neither Ragone nor Ewing said anything which would
lead him to believe that he would not be put on the on-
call list or that his vacation request would be denied.
When he departed, Newton assumed that it would not be
necessary for him to report for the November 29 and
December 1 shifts.
Although both Ragone and Ewing acknowledge that
Newton requested (or demanded) to use his vacation
time in lieu of the required 2 weeks' notice, Ragone
denies that he provided Newton with a vacation request
form or approved vacation in lieu of notice as requested
by Newton. Ewing denies that he was given a vacation
request form by Newton. Both said that Newton ada-
mantly declined their requests that he work his two re-
maining shifts. Ragone further said that he did not ap-
prove Newton for on-call work. Such decisions, i.e., ap-
proving the vacation-in-lieu request and placement on
the on-call list, were Fryman's prerogative according to
Ragone . Additionally, Riggs stated that review of per-
sonnel actions was a part of the duties of the operations
director.
9 Respondent's personnel policy No. 121 defines a resignation with
notice as "notification of intent to resign . given at least two (2) weeks
in advance of the last day worked." " The same policy also warns that
"[rlesigning without notice or with inadequate notice may affect your eli-
gibility for rehire." The policy provides that employees discharged for
cause are not eligible for rehire.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On November 30, Fryman completed an employee
action form to process Newton's resignation. Among
other things, the form notes that Newton resigned with-
out notice and that Newton was not eligible for part-time
status or rehire. The form continues: "Rich has been re-
quested to return all company issued property and uni-
forms when he picks up his final paycheck." Finally, the
form notes that Newton had accumulated 150 vacation
hours but makes no mention of any vacation-in-lieu re-
quest.
Ragone, who succeeded Fryman as the operations di-
rector in February 1988, said that Newton's failure to
give adequate notice of his resignation was the sole
reason his name was not placed on the on-call list. Cindy
Bates, Respondent's personnel administrator, perused
personnel records for other employees who failed to give
adequate notice of voluntary termination in 1987. She
found 11 in addition to Newton. In all instances, the indi-
vidual was deemed ineligible for rehire or part-time
work. However, only two individuals other than Newton
made a request for part-time employment and none of
the individuals-other than Newton-requested to use
their vacation time to fulfill the notice requirement.
Riggs acknowledged that the Respondent has no
policy concerning the use of vacation time in lieu of
notice of voluntary termination. 10 However, personnel
policy No. 109 provides that vacation requests must be
submitted 2 weeks in advance and are not considered ap-
proved until the employee receives the pink copy of the
request form. Contrary to the implication in the testimo-
ny of Ragone and Ewing, Newton claimed that neither
the request lead time nor the approval procedure was
rigidly adhered to in the past. Field Supervisor Mark
Caplan corroborated Newton's assertions about adher-
ence to the vacation policy.
In December, Newton commenced employment on a
reduced schedule with Allied Ambulance in Oakland, an-
other provider in the EMSD. At an EMSD providers'
meeting in mid-December, Riggs "jabbed" Allied co-
owner, Arthur Crow, by publicly thanking him for
taking Newton off his hands.
In January and February 1988, Newton placed calls to
Ewing to inquire about on-call assignments. In each in-
stance, Newton was told that Ewing was unavailable so
he left a message asking for a return call. Ewing did not
return Newton's calls.
In March 1988, Newton had a conversation with Su-
pervisor Caplan in which Caplan mentioned that Re-
spondent had an acute shortage of paramedics. Newton
stated that he would be willing to work for Respondent
occasionally. Caplan agreed to pursue that possibility.
Later, Caplan relayed Newton's willingness to work
occasionally if Respondent needed paramedics to
Ragone, then the operations director. Caplan reported
that Ragone told him he did not have any problem but
Caplan would have to first obtain Riggs' approval. When
Caplan approached Riggs with Newton's offer, Riggs re-
fused without explanation to Caplan. Caplan's subsequent
10 Ewing testified that he told Newton on November 27 that use of
vacation time to satisfy the resignation notice requirement was not per-
mitted.
report to Newton appears to be the first indication to
Newton that he would not be utilized as an on-call para-
medic.
4. Respondent's requests to EMSD
Effective in January 1988, EMSD returned primary re-
sponsibility for field evaluations connected with the
county certification of paramedics to the emergency pro-
viders as had been the case until mid-1986. Thereafter,
county field evaluators, such as Newton, were utilized
only in those instances where there would be an inherent
conflict for provider personnel to perform the field eval-
uation.
It is undisputed that in February 1988, Fryman spoke
with EMSD official Mike Osur concerning an evaluation
which would have to be performed by the county in-
stead of the Respondent. In March 1988, Ragone spoke
to Osur about another field evaluation which required a
county assignment. In both instances Osur was asked to
assign an evaluator other than Newton if possible but, if
that was not possible, there would be no problem.
According to Osur, such requests occur on occasion.
In this instance , however, Osur testified that the request
had no effect as Newton would not have been assigned
in either instance . In this period, Respondent needed an
outside evaluator for two cases; one was the original cer-
tification of Riggs' son and the other was the recertifica-
tion of the operations director. Because of the individuals
involved Osur said that it would have been inappropriate
to assign a current or former employee for those evalua-
tions.
There is no evidence that either Fryman or Ragone, in
making their requests to Osur, alluded in anyway to
Newton's union activities as a basis for the request.
5. Further findings and conclusions
To establish unlawful discrimination under Section
8(a)(3) of the Act, the General Counsel has the initial
burden of showing that an employee's protected activity
was a motivating factor in the employer's decision to
take adverse action against the employee. Where the
General Counsel makes a prima facie case of discrimina-
tion, an employer can still avoid liability under the Act if
it goes forward with evidence showing that the adverse
action was for legitimate reasons notwithstanding the
employee's protected activity. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). And see NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983), approving
the Board's Wright Line test.
I am satisfied that the General Counsel has made a
strong prima facie case here. Newton was undoubtedly a
vocal and active supporter of the Union's organizing
effort whose activities and sympathies were well known
to the Respondent. Newton's testimony that Fryman
threatened to "get" him if the Union lost the election-
which it did-stands uncontradicted and is credited. It is
admitted that Respondent did not honor Newton's re-
quest to change his status from a full-time employee to
that of an on-call employee. The evidence establishes
REGIONAL AMBULANCE
that this decision was made by Fryman, the official who
threatened to "get" Newton.
Moreover, it is my conclusion that Riggs' dissatisfac-
tion with Newton relates primarily-to his protected ac-
tivity. Riggs' description of Newton as a disgruntled em-
ployee with a negative attitude, when fleshed out, cen-
tered principally around issues about pay, benefits, and
working conditions which were undoubtedly significant
issues in the organizing campaign. This evidence suggests
that Riggs choice of words in describing his dissatisfac-
tion with Newton was little other than code language re-.
Iated to Newton's strong support for effecting changes in
working conditions including unionization if necessary.
Riggs made no secret of the fact that he was glad that
Newton left. To the extent that Riggs played a role in
the decision not to,utilize Newton as an on-call employ-
ee, his involvement too is colored by an unlawful
motive.
In its defense, Respondent claims that its decision not
to use Newton as an on-call employee was grounded
solely on the consistent application of its personnel poli-
cies. Simply stated, Respondent asserts that because
Newton failed to give adequate notice of his intention to
resign, he was refused on-call employment just like other
employees who did the same thing.
There is no doubt that Respondent's written rules pro-
vide that consideration for on-call employment may be
affected by the failure to give 2 weeks' notice of an in-
tention to resign: Although the language of the policy is
cast in ambiguous terms, Riggs claims that Respondent
applied the policy rigidly, i.e., inadequate notice means
the employee is not considered for rehire or part-time
employment. There is likewise no doubt about the fact
that Respondent has ample reason for such a policy and
that it deemed several other employees ineligible for
rehire in 1987 because they failed to give the requisite
notice. If Newton' fit neatly into the pattern established
by Respondent's evidence, Respondent would obviously
win. However, it is my conclusion that Newton's actions
do not fit that pattern.
It is uncontradicted that Newton, at the time he sub-
mitted his resignation, requested to use his vacation time
to fulfill the notice period. Ewing claims that he told
Newton that could not be done. Riggs, however, testi-
fied that Respondent had no policy addressing this issue.
Ragone only claims that he did not approve Newton's
vacation request nor provide him with a vacation request
form. Indeed, a careful reading of Ragone's testimony
shows that he said nothing to Newton in response to the
request to use 'vacation time in lieu of the resignation
notice. Fryman, the supervisor who made the call on
Newton's case, did not testify at all.
Respondent argues that even Newton's vacation re-
quest was untimely as such requests likewise must be
submitted 2 weeks in 'advance of time off and written ap-
proval is required in advance of taking vacation time. On
this question, Respondent's claim is contrary to substan-
tial evidence concerning its practice. Newton's assertion
that the vacation rule was not rigidly adhered to was
corroborated by Supervisor Caplan.
Newton asserted that when he left Ragone's office on
November 27, he had submitted a vacation request and
23
had justifiably assumed that it had been approved. I
credit his claim on this point. Ragone's silence in this cir-
cumstance is inexplicable . Moreover, if this record shows
anything, it shows that if there had been any hint that
Respondent had intended to deny Newton 's request to
use vacation time in lieu of the requisite notice , the ex-
change between Ragone and Newton would have been
far, far different than it was . Newton is clearly not a
meek individual who would have let the matter pass qui-
etly. In addition , if Newton's request had been flatly
denied , he would have had the opportunity to reconsider
his position about not working on November 29 and De-
cember 1.11
These circumstances suggest one of two things. Either
Ragone intentionally misled Newton into believing that
his request for immediate placement on vacation time
was approved or Fryman reversed Ragone's decision to
permit Newton to use vacation time in lieu of notice.
Where, as here, there is evidence that Respondent ap-
plied its vacation policy in a flexible manner notwith-
standing the language of its rule and, in fact, had no
policy concerning the use of vacation time for notice
purposes, some explanation for Fryman's action with re-
spect to Newton's request is essential . Because Fryman
did not testify and the record is otherwise void of expla-
nation, I find there is ample reason to infer , as I have,
that Fryman's action with respect to Newton 's on-call
employment was motivated by hostility . toward New-
ton's union activities and sympathies.
Accordingly, I conclude that by refusing on-call em-
ployment to Newton following his resignation as a full-
time employee, Respondent violated Section 8(a)(1) and
(3) of the Act as alleged.
The February and March 1988 requests to Osur not to
assign Newton for the field evaluation of Respondent's
employees is another matter . As it is clear that Fryman
and Ragone sought to exclude only Newton from these
assignments , it is possible to infer that their motivation
for making these requests was further retaliation against
Newton for his union activities . On the other hand, it is
equally possible to infer that Respondent feared Newton
would or could retaliate against it because of his differ-
ent point of view about the Union through the use of his
authority as a county field evaluator.
In the circumstances here, I find that Respondent's re-
quests were reasonable and not unlawful Although I
have concluded that Respondent discriminated against
Newton by refusing to place him in an on-call status,
that conclusion is grounded in the main on the Respond-
ent's failure to meet its burden in overcoming the Gener-
al Counsel's strong prime facie case on that issue. The
same evidence does not ipso facto translate into a viola-
tion on this issue. Where, as here , it is equally possible to
infer that the purpose of Respondent 's requests were to
assure an unbiased evaluation, General Counsel had the
burden of establishing that Respondent '
s in
was re-
taliatory . In my judgment , the General Counsel failed to
1' Clearly Respondent did not apply its rule providing that the unex-
cused failure to work two consecutive shifts is deemed to be a voluntary
termiation. Fryman processed Newton's resignation on November 30
before Newton missed his second assigned shift.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meet that burden as the evidence shows only that Re-
spondent sought to affect Newton' s employment as a
field evaluator in the evaluation of its employees. This
fact suggests that Respondent sought primarily to protect
its own interests rather than further retaliate against
Newton.
In light of the foregoing conclusion, I find it unneces-
sary to consider the Respondent's claim concerning
Newton's status as an independent contractor status with
respect to the county field evaluation work.
Accordingly, I find that the General Counsel failed to
prove that Respondent unlawfully interfered with New-
ton's Section 7 rights by requesting that he not be as-
signed as a field evaluator in February and March 1988.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, oc-
curring in connection with Respondent's business oper-
ations, 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 ob-
structing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to place Richard Newton on its list of
on-call employees and utilize him as an on-call employee,
Respondent engaged in an unfair labor practice within
the meaning of Section 8(a)(1) and (5) of the Act.
4. Respondent did not engage in any further unfair
labor practices alleged in the complaint of the General
Counsel in this matter.
5. The unfair labor practices of Respondent affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, the recommended Order requires
Respondent to cease and desist therefrom and to take the
following affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily refused to
place Richard Newton on its list of on-call employees
and utilize him as such , it must now offer to reinstate
him to that status and make him whole for any loss of
earnings and other benefits , computed on a quarterly
basis from January 1, 1988 , 12 to the date of a proper
offer of reinstatement , less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retard-
ed, 283 NLRB 1173 (1987). Contributions due to any
12 As Newton's request was that he be placed on Respondent's on-call
list at the start of 1988, it would not be appropriate to award backpay for
any prior period
trust fund account on behalf of Newton shall be deter-
mined in accord with Merryweather Optical Co., 240
NLRB 1213 (1979).
Respondent must further expunge from any of its
records any reference to its refusal to place Newton on
its on-call list, including the personnel action form of
November 30, 1987, and notify Newton in writing that
such action has been taken and that any evidence related
to its refusal to place him on its on-call list will not be
considered in any future personnel action affecting him.
Sterling Sugars, 261 NLRB 472 (1982).
Finally, Respondent must post the attached notice to
inform employees of their rights and the outcome of this
matter. As it appears from the record in this case that
Respondent's employees work primarily at satellite loca-
tions throughout Alameda and Contra Costa Counties,
Respondent must post the attached notice at all such lo-
cations as well as its Fremont, California headquarters.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
ORDER
The Respondent, Regional Medical Systems d/b/a Re-
gional Ambulance, Inc., Fremont, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discriminatorily refusing to utilize Richard
Newton as an on-call employee.
(b) In any like or related manner interfering with, re-
straining, coercing, or discriminating against employees
because they exercise rights guaranteed by Section 7 of
the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately offer in writing to place Richard
Newton's name on its list of on-call employees and to
utilize him in that capacity in the same manner as other
on-call employees are utilized.
(b) Make Richard Newton whole for all losses in-
curred as a result of its failure to utilize him as an on-call
employee in the manner specified in the remedy section
of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to determine the backpay and trust fund reim-
bursements due under the terms of this Order.
(d) Post at its headquarters and satellite facilities in Al-
ameda and Contra Costa Counties, California, copies of
the attached notice marked "Appendix." 14 Copies of the
13 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 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
14 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 Nation-
al 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."
REGIONAL AMBULANCE 25
notice, on forms provided by the Director for Region 32,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Director in writing within 20 days from
the date of this order of the steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discriminate against employees because
of their activities or sympathies for Hospital & Health
Care Workers Union, Local 250, Service Employees
International Union, AFL-CIO or any other labor orga-
nization, by refusing to utilize them as on-call employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees because they exercise
their rights guaranteed by the National Labor Relations
Act.
WE WILL immediately offer in writing to place Rich-
ard Newton on our on-call list and utilize him as an on-
call employee in the same manner as other on-call em-
ployees are utilized.
WE WILL pay Richard Newton for the pay and bene-
fits he lost as a result of our refusal to utilize him as an
on-call employee after January 1, 1988, together with in-
terest as required by law.
WE WILL notify Richard Newton that we have re-
moved from our files any reference to the basis for our
refusal to utilize him as an on-call employee and that it
will not be used against him in any way.
To organize REGIONAL MEDICAL SYSTEMS D/B/A RE-
To form, join, or assist any union GIONAL'AMBULANCE, INC.