Ruehles Paramedic Ambulance

National Labor Relations Board - Board Decisions

Jun 22, 1984

270 N.L.R.B. 1322 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ruehle's Paramedic Ambulance, Inc. and Joseph
Old. Case 7-CA-20650
22 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 August 1983 Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief 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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions2 and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set out in full below and
orders that the Respondent, Ruehle's Paramedic
Ambulance, Inc., Mt. Clemens, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Cease and desist from
(a) Interfering with, restraining, or coercing em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act by suspending and/or
laying them off for engaging in activities on behalf
of United E.M.T.'s or any other union or because
they have given testimony under the Act.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
i In view of our findings that the Respondent violated Sec. 8(a)(4), (3),
and (I) of the Act by suspending and laying off Joseph Old in retaliation
for his union activities and his participation in an unfair labor practice
proceeding, we find it unnecessary to reach the question of whether
Old's conduct on 8 February 1982 was protected concerted activity and
served as an additional unlawful basis for the Respondent's action against
him. Accordingly, we do not adopt the judge's analysis on this issue.
Further, we find it unnecessary to pass on the judge's finding that the
allegation in par. 8 of the General Counsel's complaint as to the concert-
ed nature of Old's 8 February conduct must be deemed to be admitted
because of the nature of the Respondent's answer to that paragraph. The
remedy is not affected by this action. However, the Order and notice are
modified in accordance with our findings.
In its brief in support of exceptions the Respondent suggests that the
judge's determination of the issues in this case indicate a bias in favor of
the General Counsel. Upon careful review of the record in this proceed-
ing we find no support for the Respondent's allegation.
I The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
270 NLRB No. 208
exercise of the rights guaranteed them in Section 7
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act.
(a) Offer Joseph Old reinstatement to his former
job, or to a substantially equivalent job, without
prejudice to his seniority or other rights and privi-
leges previously enjoyed, and make him whole for
any loss of pay he may have suffered as a result of
the 11 February 1982 suspension and layoff com-
puted in the manner set forth in the section of the
judge's decision entitled "The Remedy."
(b) Expunge from its files any reference to the
suspension and layoff of Joseph Old and notify him
in writing that this has been done and that evi-
dence of these unlawful actions will not be used as
a basis for future personnel actions against him.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Mt. Clemens, Michigan facility
copies of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Re-
gional Director for Region 7, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by' any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
3 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
1322
RUEHLE'S PARAMEDIC AMBULANCE
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of their rights guar-
anteed by Section 7 of the Act, by discharging
them for engaging in activities on behalf of United
E.M.T.'s or any other union, or because they give
testimony under the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Joseph Old reinstatement to his
former or substantially equivalent job, without
prejudice to his seniority or other rights and privi-
leges previously enjoyed, and make him whole for
any loss of pay he may have suffered as a result of
the discrimination of 11 February 1982, plus inter-
est.
WE WILL expunge from our files any reference
to the suspension and layoff of Joseph Old on 11
February 1982, and WE WILL notify him that this
has been done and that evidence of these unlawful
actions will not be used as a basis for future per-
sonnel actions against him.
RUEHLE'S PARAMEDIC AMBULANCE,
INC.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. The
trial of this matter was held before me on March 14-15,
1983, at Detroit, Michigan, pursuant to an unfair labor
practice charge filed on May 11, 1982, by Joseph Old, an
individual, against Ruehle's Paramedic Ambulance, Inc.
(Respondent) and a complaint issued by the Regional Di-
rector for Region 7 on June 30, 1982. The complaint al-
leges that Respondent suspended and laid off employee
Joseph Old because of his union and other concerted ac-
tivities protected by the Act and because he had given
testimony in an unfair labor practice hearing, and thus
violated Section 8(a)(1), (3), and (4) of the Act.
Respondent filed an answer which denied the commis-
sion of unfair labor practices. Respondent argued orally
at the hearing, and the General Counsel filed a written
brief after the close of the hearing.
On the entire record, and on my observation of the
witnesses' demeanor, and after careful consideration of
the brief and oral argument, I make the following
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing
by virtue of, the laws of the State of Michigan and has
maintained its principal office and place of business at
191 N. Gratiot in the city of Mt. Clemens and State of
Michigan, herein called Respondent's main station. Re-
spondent maintains another station located in Clinton
Township, Michigan. Respondent is, and has been at all
times material herein, engaged in providing emergency
medical transportation and services to individuals, hospi-
tals, and businesses. During the year ending December
31, 1981, which period is representative of its operations
during all times material herein, Respondent, in the
course and conduct of its business operations, performed
services valued in excess of S400,000, of which in excess
of $50,000 was received from Medicare and Medicaid,
agencies of the United States Government, as payment
for services provided to clients of said agencies.
It is admitted, and I find, that Respondent is now, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
11. LABOR ORGANIZATION
The United E.M.T.'s (the Union) is now, and has been
at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
nII. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Issues
The General Counsel alleges that Joseph Old was sus-
pended and laid off because of his activities on behalf of
the Union, because of his testimony in a previous unfair
labor practice proceeding, and because he and his ambu-
lance team partner Dave Barrios, as described in para-
graph 8 of the complaint, "concertedly questioned and
protested a job assignment given to them by the dis-
patcher" on February 8, 1982.
Respondent contends that Old was suspended for 1
week because of misconduct engaged in on February 8
consisting of a job assignment disputation, and that he
was laid off at the end of that week because economic
circumstances dictated that certain employees be laid off
and Old was selected to be among that group because of
his past disciplinary record. Respondent in its answer
neither admitted nor denied paragraph 8 of the com-
plaint, nor amended its answer thereafter. Paragraph 8
must therefore be deemed admitted pursuant to Section
102.20 of the Board's Rules and Regulations.' At the
hearing Respondent argued that Old is not entitled to the
protection of the Act because he engaged in a concerted
work stoppage without having complied with Section
8(g) of the Act respecting concerted work stoppages at a
health care institution. Moreover, Respondent also
argued that Old's conduct of February 8, 1982, was not
See also Walnut Creek Hospital. 208 NLRB 656 (1974).
1323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted but constituted individual activity. It did not
amend its answer.
B. Facts
1. Background
Respondent, prior to January 1982,2 operated at three
locations adjacent to the outer suburbs of the Detroit,
Michigan metropolitan area at which places it provided
ambulance services which involved the transportation of
sick and injured persons to health care facilities. Some of
these services entailed life-threatening emergencies, and
others involved transfer or "shuffle" runs where patients
were transferred from one facility to another on a none-
mergency basis. From the main station, Respondent, by a
dispatcher, assigned runs to full-time ambulance teams,
each of which worked three 24-hour shifts per week on
an alternating basis of 24 hours on duty and 24 hours off
duty. The dispatcher is in communication with the cli-
ents and ambublance teams by telephone and by radio
communication. Those drivers assigned to the main sta-
tion are accessible directly by the dispatcher as they are
located in a rest area in close proximity to the dispatch
office. The dispatcher decides which team is to be as-
signed each run.
The ambulance teams consist usually of two EMTs
(i.e., emergency medical technicians). One of these is a
"basic E.M.T." of limited skills and experience. The
other is a more advanced EMT whose status is deter-
mined by the level of skills possessed, education, and cer-
tification by state authority. There are two levels of ad-
vanced EMTs, i.e., "specialist" and the highest level, i.e.,
advanced EMT (or paramedic). Old occupied the posi-
tion of the highest advanced EMT. Respondent's teams
consisted of about 25 employees at its peak level.
In late May 1981, Respondent commenced the oper-
ation of its third station, i.e., Roseville, pursuant to a
contract with the city of Roseville, Michigan. After 3
months of operation, Respondent lost its contract with
that city, and thereafter engaged in litigation with that
municipality concerning the loss of the contract. Re-
spondent had acquired a building and equipment to oper-
ate the Roseville station. A limited crew was retained at
Roseville despite the loss of work previously provided
by the city. In November 1981, Respondent decided to
retain only one ambulance at Roseville instead of two,
and it laid off three EMTs. In January 1982, the Rose-
ville station was closed, and the remaining EMTs trans-
ferred to the main station.
Old was hired in October 1979, long before any hiring
necessitated by the Roseville contract. He participated in
organizational activities on behalf of the Union from July
1980 until October 6, 1980, when it was certified by the
Board as exclusive collective-bargaining agent. Old was
elected the union president and participated as chief
spokesman in 12-14 collective-bargaining negotiations on
behalf of the Union with Respondent's representatives,
General Manager Ray Ruehle and Attorney Thomas
Oehmke. These negotiations occurred over a period of
time from about November 1980 through April 1981. No
I All dates herein are 1982 unless otherwise stated.
contract was executed. Between January 1981 and April
1981, the Union filed three separate unfair labor practice
charges against Respondent which culminated in the is-
suance of a consolidated complaint in Cases 7-CA-28729
and 7-CA-19211 against Respondent involving allega-
tions of bad-faith bargaining. Pursuant to the complaint,
a trial was held before Administrative Law Judge James
Rose on February 10 and 11, 1982. Although several em-
ployees were called to testify at that trial, it is stipulated
that Old was the primary witness on behalf of the Union.
On February 10, Old was not scheduled to work. On
February 11, Old was scheduled to work but pursuant to
explict approval of Ray Ruehle he remained at the hear-
ing until it closed. Old arrived at this station about I
p.m. but found that his assigned ambulance was on dis-
patch. Shortly thereafter, he received a message to visit
Ray Ruehle. There was no advance explanation for the
summons. When Old complied he was informed by the
presentation of a memorandum from Ruehle that he was
suspended for I week because of alleged misconduct en-
gaged in on February 8 involving an argument with the
dispatcher concerning an assignment and informed that
he was indefinitely laid off thereafter. It is Old's credible
and uncontradicted testimony that the following conver-
sation occurred. Old asked Ruehle whether he wanted to
hear Old's version of the February 8 incident but Ruehle
stated that he saw no reason to do so. Old accussed
Ruehle of retaliating against Old because of his participa-
tion in the unfair labor practice litigation. In response
Ruehle merely shrugged and gave Old the option of re-
signing with 2 week's pay or of being laid off. Old took
the suspension notice and departed.
2. The February 8 incident
Ray Ruehle testified that he made the decision to sus-
pend Old on a receipt of dispatcher Colleen Chastain's
report. That receipt occurred on the evening of Febru-
ary 8. Ruehle further testified that prior to the February
10-11 trial he had decided to lay off additional employ-
ees because of the loss of the Roseville business and that
Old was already under consideration as a candidate for
layoff based on his past disciplinary record and that, on
awareness of the February 8 incident, his decision "was
[made] conclusive after the conversation with Collen
Chastain." Ruehle testified that his attorney advised him
to avoid effectuating that decision until the resolution of
the then outstanding charge, but he testified that eco-
nomics demanded action but he at least waited until after
the hearing closed. Clearly, Old was given no advance
warning.
Ruehle testified that his only information of the Febru-
ary 8 incident came from Colleen's report. Colleen testi-
fied on behalf of Respondent. s According to her, she
presented Ruehle with a written report of the alleged
misconduct on the evening of February 8, and only in-
formed Ruehle orally that what had transpired was con-
tained in that report. Thus, he heard no other informa-
tion other than that report which states:
3 She testified as a witness called by the General Counsel at the Febru-
ary 10-11 trial.
1324
RUEHLE'S PARAMEDIC AMBULANCE
4:28 p.m.
2-8-82 Called Station 2
Advised Dave B that he and Joe were up for 4 runs
(Back & forth from Dalcoma). He was advised they
had one run all day & they were up. The run was
dispatched and received accordingly. Within one
minute Dave B called back asking why they had to
take these calls. I advised him that I was the dis-
patcher and they were up in my opinion. The mes-
sage was relayed to Joe. Joe then got on the phone
yelling at me that they were not up for the calls.
That it was after 4:00 and South end does not do
Dalcoma after 4:00 pm per the main boss! I ex-
plained again, the situation and told him that was
per Ray. After a pause he said "Is that right?" I
said yes that he was up and dispatched and the card
was punched. He said he didn't give a f-! and I
hung up.
[SI CC
NOTE: He also felt since he only had one run they
shouldn't be up for the next 4 runs.
In fact Old did not refuse an assignment and Ruehle
testified that it was his impression from reading the
report that Old did not refuse to take the run. From the
record I conclude that the amount of time expended by
Old in questioning and protesting the assignment caused
no more than a 2- or 3-minute delay. The runs, i.e.,
double runs to and from hospitals and an x-ray clinic
(Delcoma), were of a nonemergency nature. There is no
evidence that the delay caused any degree of inconven-
ience.
The notice of suspension tendered to Old by Ruehle
on February 11 states:
On Monday Feb. 8. 1982, at approx, 4:28 P.M.
You were given a number of west to Dalcoma calls
by the dispatcher on duty.
Rather than take the calls as requested, you en-
gaged in arguement [sic] with the dispatcher regard-
ing the calls & used profane & abusive language
during the conversation.
You will be given one week suspension without
pay starting at 3:30 P.M. Feb 11, 1982 and ending
Feb 18 at 8:00 A.M.
Ruehle testified that he considered Old's February 8
job assignment protest to be an individual action and not
concerted. However, the only evidence he had of what
occurred was Chastain's report. Despite the testimony of
Old's February 8 partner, Joseph Barrios, which tends to
suggest, by way of hesitant, uncertain demeanor, that
Barrios did not wholeheartedly support Old's protest, the
Chastain report clearly indicates concerted activity, i.e.,
Barrios initiated the inquiry as to why "they had to
take" the multiple assignment rather than another team.4
4 Barrios admitted in his testimony that the nature of the assignment
was a matter of concern to him and that he would rather have not taken
it and that he was disappointed in receiving it and that he informed Old
of the assignment in a sarcastic manner so as to let Old know his feelings.
After he called Chastain the second time to question her basis for the se-
Chastain testified as to the events of February 8 and
embellished greatly on the report she actually composed
immediately after the event had been submitted to
Ruehle. These embellishments were not, however, con-
veyed to Ruehle and could not have served as a basis for
his decision.
According to Chastain, she decided to give Old's team
a multiple run because prior to 4 p.m. he had received
only one other run from the 8 a.m. start of his shift and
she had decided to aportion the work more evenly.5 Old
had been available for runs from 8 a.m. with the excep-
tion of a 15-minute duration from 10 a.m. wherein, with
Ruehle's permission, he participated in a pretrial tele-
phone conference call with the General Counsel, Re-
spondent, and Judge Rose. Old testified credibly and
without contradiction that he had never been assigned
multiple runs in the past. He testified that he thought
Chastain was acting unfairly. Chastain testified that when
she decided to assign multiple runs to Old and Barrios,
who were located at station 2, 6 miles away from the
destination, several available EMTs were present with
her at the main station which was physically closer by 3
miles to the destination but, because of the layout of the
road pattern, about the same distance in route miles. She
testified that she told them of her intention to telephone
Old and to inform him of the multiple assignment and
stated aloud, "I'll give 60 seconds for Joe to call back."
When pressed in examination for an explanation for this
remark, which on its face suggests something provoca-
tive of the nature of the assignment, she testified nerv-
ously and guardedly that it was "not unusual" for Old to
call back and argue about a run. She was unable to testi-
fy with any detail as to the frequency of these arguments
and variously testified that it was not "very often," but
"moderately to often," and "not uncommon."
According to Chastain, Barrios received the first call,
but it was he who called back and, despite her assertion
that the dispatcher's assignments are to be accepted, it
was Barrios who insisted that she give assurance that
they were "up" for those runs and/or insisted on an ex-
planation for the runs. She authoritatively reminded him
of her discretion as dispatcher and at that point Old took
the telephone. According to Chastain, Old yelled and
screamed, "Why are we up for these [expletive deleted]
calls," and "this is [expletive deleted] not fair," and in-
sisted that they were not up, and that further, his station,
the south station, is not, according to Respondent's
policy, to be assigned that type of run after 4 p.m. Ac-
cording to Chastain, after she responded that she did not
know who informed him of such policy but that she had
been informed to use her own discretion in the utilization
of the south station (i.e., station 2.) To that, she testified
that Old responded with an obscene expletive and he
hung up. However, in subsequent testimony, she asked
lection of their team, Barrios threw the telephone at Old saying, "(Ylou
tell her."
s On that date 5 teams received the following number of runs: team
4-10 runs; team #6-1 run; team #9-5 or 6 runs; team #7-7 runs; and
team #10 (Old-Barrios)--7 runs.
a Barrios testified that he threw it at Old because Barrios did not wish
to pursue the argument.
1325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him directly during the conversation whether he was re-
fusing the runs, he stated that he was not refusing to
accept the runs. In fact she ended the conversation by
informing him in effect that he had received his assign-
ment and that there was to be no further conversation,
and she hung up. He then called back and stated that he
and Barrios were en route to the destination.
Old's recollection was vague as to the use of obsceni-
ties but he conceded that he probably used such lan-
guage when he insisted on an explanation for the assign-
ment.
Ruehle testified that Old was not suspended because
he refused a run but rather because, contrary to Re-
spondent's policy as told to all EMTs, Old disputed an
assignment with the dispatcher (who works under great
stress) before taking a call, rather than waiting until after
the run to protest. Moreover, he testified, Old used abu-
sive language to the dispatcher. The evidence in the
record does not support this testimony. It is undisputed
that EMTs commonly protest and/or question assign-
ments, particularly on being awakened by the dispatcher,
and that EMTs commonly complain of the type of runs
assigned to Old on February 8, i.e., shuffle runs.7 Indeed,
Chastain testified that it was not uncommon for Old and
others to protest upon notification of assignment. Despite
this testimony, she stated that it was not Old's foul lan-
guage that upset her on February 8, but rather Old's
challenge to her authority. She did not explain why,
then, she was more upset on February 8, that at any time
in the past inasmuch as Old had never received a prior
warning about disputing the dispatcher's assignments.
Furthermore, EMTs who had engaged in more severe
misconduct were treated far less harshly than Old. Thus
EMTs who had actually refused a run outright received
either a 1-day suspension or mere warnings.
With respect to the use of profanity, the evidence re-
veals that the type of language used by Old toward
Chastain on February 8, was commonly used by most of
Respondent's employees, and utilized subsequently by
Chastain herself toward a Respondent manager, Danny
Chastain. 8 In that confrontation Chastain became en-
raged when Manager Chastain refused to volunteer to
take a run. Her conduct included not merely vituperative
obscene language but also included the hurling of physi-
cal objects about the dispatch room according to a me-
morialization of that event by Manager Chastain dated
March 22, 1982. Colleen Chastain was not disciplined
about the event, nor was she aware that it had been me-
morialized in her personnel file.
Repsondent, however, has warned employees about
abusive language but no context was adduced for these
situations. No employee was terminated or suspended for
such conduct but merely "warned." Old was never given
a written reprimand concerning use of abusive language.
One incident did occur in October 1981 where during
the course of a conversation Manager Danny Chastain
told him to stop using obscene language. A memoran-
dum in Old's personnel file indicates that a memorializa-
? Old's testimony of the unusual nature of a multiple shuffle run is un-
rebutted,
a He is the brother of her former husband.
tion was made by Danny Chastain of a purported con-
frontation between himself and Old who, in the capacity
of union representative, was protesting an alleged dis-
criminatory layoff of a unit employee. Although that
report reflects the use of vulgarity and profanity by Old,
the thrust of the document is not a complaint about pro-
fanity but rather a report to Ray Ruehle of Old's protest
and how Chastain attempted to convey the message to
the union president that the employee in question was
not discriminated against but was economically laid off.
There is no evidence that Old was formally reprimanded
or "warned" about the use of foul lanaguge on that occa-
sion.
3. The layoffs
Ray Ruehle testified that the loss of the Roseville con-
tract necessitated an economic layoff. His testimony as to
the economic necessity was generalized, conclusionary,
and unsupported by documentation. It is undisputed,
however, that the Roseville station was closed down.
Ruehle testified, also in conclusionary and generalized
terms, that Respondent followed the layoff policy as set
forth in a proposed clause to a collective-bargaining
agreement that never came to fruition. That clause set
forth that the determination of a candidate for layoff will
be based on a multiplicity of factors, including seniority,
past job performance, experience, skills, fitness, ability,
disciplinary and attendance records, educational ad-
vancement in the EMT field, and the ability of remaining
employees to properly perform the available work. that
policy, however, also sets forth that "Employees shall be
recalled in the reverse order in which they were laid off,
provided the recalled employee is able to perform the
available work." The first round of layoffs occurred in
November. Three employees were laid off. On February
11, four more unit employees, including Old, were laid
off. Finally, in March, two secretaries were laid off be-
cause of a reduction in "paper work" due to the loss of
Roseville, and Ruehle accepted a voluntary layoff.
Prior to the Roseville operation, Respondent main-
tained about 17 employees. With the Roseville operation
it rose to 24 or 25. Ruehle testified that the number of
runs after the loss of the Roseville contract was at the
same level as before that contract. However, Ruehle ad-
mitted that subsequent to the Roseville closure Respond-
ent has purchased five new ambulances and related
equipment. Moreover, Respondent actually hired new
EMTs subsequent to Old's layoff and reinstated one of
the February laid-off employees. These admissions
remain in the record unexplained. The economic justifi-
cation for the layoff of Old and his nonrecall is therefore
based on inconclusive evidence of a dubious probative
value.9 However, Respondent's evidence that these lay-
offs did occur and that there was a loss of $300,000 per
annum attributed to the Roseville closing is not rebutted.
With respect to the first round of layoffs, Ruehle se-
lected EMTs Dziuber and Koskinnen because they had
I I found Ray Ruehle to be a less than convincing witness who was
given to inconsistencies, evasions, generalities, and whose demeanor re-
vealed a lack of spontaneity and certitude.
1326
RUEHLE'S PARAMEDIC AMBULANCE
only been employed 4 months. A third EMT was select-
ed, according to Ruehle, because of his inability to work
under the stress of the job which, in turn, caused poor
job performance and an "attitude problem" toward Re-
spondent and the public which resulted in numerous rep-
rimands. With respect to the second round of layoffs,
Ruehle testified that employee M.W. was selected be-
cause, although he was an advanced EMT, his own lack
of confidence in his own abilities and reports of other
employees' lack of confidence in him created problems.
He further testified that employee C.S., a basic EMT of
limited abilities, was selected because other employees
questioned her ability and refused to work with her. In-
explicably, Respondent subsequently reinstated her. Em-
ployee S. was selected because a severe medical problem
prevented him from performing his EMT duties effec-
tively.
Ruehle testified that Old was selected for the layoff of
February II because of his "past performance." By this,
he explained that he meant "his disciplinary record, his
attendance record, the continuous problem that manage-
ment had with him with respect to taking runs, the argu-
mentative nature of his personality." Although Ruehle
testified that the February 8 incident was "conclusive" of
Old's selection for layoff, he elsewhere in testimony
denied that it was a "major" factor. He characterized it
as a "final factor." and admitted it to be a "last straw"
and "significant factor,"
No evidence was adduced that Old's performance of
his duties was unsatisfactory or that he failed to meet the
skills of an advanced EMT. It is admitted that other
EMTs of lesser seniority were retained. Some evidence
of Old's tardiness was adduced, but in the absence of
comparative evidence of other employees' punctuality it
is meaningless. It is admitted that other employees had
worse attendance and punctuality records for which they
were reprimanded more than once and in a progressive
fashion and that Old was never reprimanded nor for for-
mally warned about his tardiness. I have already noted
Respondent's past tolerance of Old's tendency to com-
plain and to question assignments, as well as its tolerance
level of other employees' similar complaints.
With respect to Old's actual disciplinary record, the
October confrontation memorialized by Danny Chastain
does not on its face appear to constitute a reprimand.
Old was, however, formally and clearly disciplined on
one occasion. On October 26, 1981, he was given a 3-day
disciplinary layoff because he, as union president, was
held responsible by Ray Ruehle for allegedly conducting
a union meeting during working hours, at which he and
some union employees left their work stations to assem-
ble at one station, and that he allegedly failed to per-
suade employees not to leave their assigned stations, and
that the meeting was called in breach of an agreement
whereby Ruehle was to be given advance notification for
the purpose of business accomodation. Ruehle testified
that he based his conclusions on the reports of unidenti-
fied persons. Old testified credibly, without contradic-
tion, that he told employees not to leave their assigned
station but rather to participate by telephone. He did not
deny that he breached an agreement with Ruehle to dis-
cuss in advance timing of a meeting during working
hours, but it is not clear that he would have been repri-
manded had some employees not left their stations. Thus
Old was held liable for the conduct of other employees
by virtue of his union position.
No evidence was adduced as to the comparative level
of Old's "disciplinary record" with that of other employ-
ees. The record, as already noted, reveals that other em-
ployees at least received more formal discipline with re-
spect to such areas as attendance, actual refusal to accept
runs, and foul language. The record therefore fails to
reveal that Old's "disciplinary record" was so much
worse than other employes so as to justify his inclusion
with clearly incompetent employees in a limited layoff.
Rather, it indicates that in many areas he had a better
record, even assuming that the business of the unauthor-
ized union meeting constituted misconduct.
C. Analysis
As Respondent perceived Old in its closing argument,
he was "just a complainer . . . a bitcher and a bel-
lyacher." Whatever the extent of his "argumentative
nature," the record evidence reveals that he stood out no
more than any other employee on February 11 from the
standpoint of discipline, foul language, attendance, dispu-
tations with dispatcher, except for three factors: his
union activity, including presidency and contract negoti-
ations; his patently concerted activity of February in
questioning the basis for a decision affecting a condition
of employment; and his testimony at a Board proceeding.
With respect to the February incident, it concerned an
inquiry and protest of a matter of employment of con-
cern to both Barrios and Old. Clearly the assignment
was not onerous, but the issue of concern to Old was the
justification, i.e., rationalization for the assignment, not
its difficulty. Barrios' conduct clearly implied his consent
to the decision to question and protest the assignment.
His conduct, unknown to Respondent, in throwing the
telephone at Old is not a clear retraction of that com-
ment, but rather indicates on its face, at most, his dis-
pleasure at being the one who was voicing the objection
and bearing the brunt of Chastain's reminders of her au-
thority. Whatever his private thoughts, Barrios' overt ac-
tions to both Old and Respondent were indicative of
consent and, at the very least, not indicative of a with-
drawal of consent. Where an individual employee seeks
an objective of concern to other employees, this consent
may be implied. °0 I find that the concerted activty of
February 8 did not violate any consistently enforced
policy of Respondent. There was no concerted refusal to
perform work and thus no work stoppage. At most, 2 or
3 minutes were consumed in the questioning and protest.
A brief intrusion into worktime by employees engaged in
protected activities does not forfeit the protected nature
of such activity, particularly in the absence of evidence
of the extent, if any, of the impairment of Respondent's
operations, and furthermore such brief intrusion is not
equivalent to a strike when the purpose is largely infor-
'o Alleluia Cushion Co., 221 NLRB 97 (1975); Air Survey Corp., 229
NLRB 1064 (1977), enf. denied where there was no evidence of employ-
er awareness of the concerted nature of the protected activity.
1327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mational, as it was herein. Empire Steel Mfg. Co., 234
NLRB 530, 532 (1981). A final question arises as to
whether Old's use of obscene language was so egregious
as to forfeit the protection of the Act. With respect to
protected activities, the Board held:
[O]ffensive, vulgar, defamatory or opprobious re-
marks uttered during the course of protected activi-
ties will not remove activities from the Act's pro-
tection unless they are so flagrant, violent or ex-
treme as to render the individual unfit for further
service.
The use of obscene and foul language by Old constituted
nothing more than vulgarity commonly expressed in his
work environment and of the type to which the dis-
patcher was commonly exposed and utilized herself.
Clearly, the objection of the dispatcher was to the chal-
lenge to her rationale for the assignment and not to the
vulgarity utilized. In this context, I find that Old's vulgar
language did not constitute that type of misconduct to
have forfeited the protected nature of the activity.
I conclude that all the factors that distinguished Old's
work record from all other employees consisted of con-
certed protected activities. The suspension and layoff of
Old occurred in rapid sequence after the concerted activ-
ity of February 8 and his testimony at a Board proceed-
ing and in the absence of definitive evidence for the pre-
cise timing of economic need.
Respondent's proffered reasons for the suspension and
the inclusion in the layoff have been demonstrated to be
false and pretextuous. The degree of punishment accord-
ed to Old has been established to be disparate and con-
trary to Respondent's past practice. From the sequence
of events, it must be inferred that Respondent was moti-
vated because of a hostility toward Old's protected ac-
tivities.
As stated in Shattuck Denn Mining Co. v. NLRB, 362
F.2d 266, 470 (9th Cir. 1966):
Actual motive, a state of mind, being the question,
it is seldom that direct evidence will be available
that it is not also self-serving. In such cases, the self-
serving declaration is not conclusive; the trier of
fact may infer motive from the total circumstances
proved. Otherwise no person accused of unlawful
motive who took the stand and testified to a lawful
motive could be brought to book. Nor is the trier of
fact-here the trial examiner-required to be any
naif than is a judge. If he finds that the stated
motive for a discharge is false, he certainly can infer
that there is another motive. More than that, he can
infer that the motive is one that the employer de-
sires to conceal-an unlawful motive-at least
where, as in this case, the surrounding facts tend to
reinforce that inference.
The Board stated in the Wright Line case:' 2
X Dreis & Krump Mfg, Inc., 221 NLRB 309, 315 (1975), enfd. 544 F.2d
320 (7th Cir. 1976).
12 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 622 F.2d 887 (Ist
Cir. 1981); cert. denied 455 U.S. 989 (1982).
[W]e shall henceforth employ the following causa-
tion test in all cases alleging violation of Section
8(a)(3) or violations of Section 8(aX1) turning on
employer motivation. First, we shall require that the
General Counsel make a prima facie showing suffi-
cient to support the inference that protected con-
duct was a "motivating factor" in the employer's
decision. Once this is established, the burden will
shift to the employer to demonstrate that the same
action would have taken place even in the absence
of the protected conduct.
Very recently the Supreme Court was presented with
the question of "whether the burden placed on the em-
ployer in Wright Line is consistent with Sec. 8(aX)(1) and
8(a)(3) as with Sec. 10(c) of the [Act] which provides
that the Board must prove an unlawful labor practice by
a 'preponderance of the evidence"' [citation of Sec. 10(c)
omitted.] 13
The Court answered that question affirmatively and
thus approved of the Wright Line test of proof. The
Court concluded that in the application of that test in the
case before it that the Board's finding of violation "was
supported by substantial evidence on the record consid-
ered as a whole."
In the instant case, I conclude that the General Coun-
sel has adduced a preponderance of evidence to necessi-
tate an inference that Old was suspended and terminated
solely because of activities protected by the Act and that
the proffered reasons were false and pretextuous. At the
very least, I find that the General Counsel has adduced
overwhelming evidence that the protected activities
were a motivating if not sole factor, and I further find
that Respondent has not sustained the burden of demon-
strating that the same actions would have taken place
even in the absence of the protected activity. According-
ly, I find that Respondent violated Section 8(a)(1), (3),
and (4) of the Act as alleged in the complaint.
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. Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1),
(3), and (4) of the Act by suspending and laying off
Joseph Old on February 11, 1982, because of his union
and concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and because
he testified at the unfair labor practice hearing before the
Board in Cases 7-CA-28729 and 7-CA-1921 1.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
Ia NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
1328
RUEHLE'S PARAMEDIC AMBULANCE
the Act. Having found that Respondent unlawfully sus-
pended and laid off Joseph Old, I shall recommend that
Respondent be ordered to offer him reinstatement to his
former or substantially equivalent job, without prejudice
to his seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of earnings
that he may have suffered thereby with interest thereon
to be computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977).14 I shall also recommend
that the Respondent expunge from its records any refer-
ence to the unlawful suspension and layoff on February
11, 1982, and notify him in writing that this has been
done and that evidence of these unlawful actions will not
be used as a basis for future personnel actions against
him.
[Recommended Order omitted from publication.]
14 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
1329