American Medical Response Mid-Atlantic, Inc.

National Labor Relations Board - Board Decisions

Jul 17, 2020

369 N.L.R.B. 125 (N.L.R.B. 2020)

369 NLRB No. 125
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
American Medical Response Mid-Atlantic, Inc. and
Mosiah O. Grayton. Case 05‒CA‒221233
July 17, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On July 18, 2019, Administrative Law Judge Arthur J.
Amchan issued the attached decision, and on July 19,
2019, he issued an errata. The Respondent filed excep-
tions and a supporting brief, the General Counsel filed an
answering brief, and the Respondent filed a reply brief.
In addition, the General Counsel filed cross-exceptions
with supporting argument.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order as modified and set forth in full below.3
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
We agree with the judge that the Respondent’s Sec. 10(b) defense
was not timely raised and, in the alternative, that the defense lacked
merit.
In addition, we agree with the judge that, consistent with the Meyers
Industries cases, Charging Party Mosiah Grayton engaged in protected
concerted activity at the December 6, 2017 meeting. See Meyers In-
dustries, 268 NLRB 493 (1984) (Meyers I), remanded sub nom. Prill v.
NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948
(1985), on remand Meyers Industries, 281 NLRB 882 (1986) (Meyers
II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988). In reaching this conclusion, we rely on
the judge’s findings that, during the December 6 meeting, Grayton
joined fellow employee Briana Hampleton in protesting Hampleton’s
suspension for violating the Respondent’s fuel policy and complained
about the Respondent’s inconsistent application of its fuel policy. We
therefore find it unnecessary to rely on the judge’s additional finding
that Grayton concertedly complained about supervisor Stephen Pawlak
during the meeting.
In evaluating Grayton’s conduct under Atlantic Steel Co., 245 NLRB
814 (1979), we find, contrary to the judge, that the fourth factor (prov-
ocation) does not weigh in favor of protection. We nonetheless find
that Grayton did not lose the protection of the Act because the other
three Atlantic Steel factors weigh in favor of protection. See, e.g.,
Postal Service, 364 NLRB No. 62, slip op. at 4 (2016). Accordingly,
we agree with the judge that the Respondent violated Sec. 8(a)(1) by
suspending Grayton, issuing her a last-chance agreement, and discharg-
ing her because she engaged in protected concerted activity at the meet-
ing.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Respondent violated Section 8(a)(1) of the Act
by engaging in the following conduct:
(a) placing Mosiah Grayton on unpaid administrative
leave on December 7, 2017;
(b) issuing Grayton a last-chance agreement on De-
cember 15, 2017;
(c) converting Grayton’s unpaid administrative leave
to an unpaid suspension on December 15, 2017; and
(d) discharging Grayton on May 22, 2018.
3. The above violations are unfair labor practices that
affect commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, American Medical Response Mid-Atlantic,
Inc., Washington, D.C., its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging, suspending, or otherwise discriminat-
ing against employees, including by placing them on
unpaid administrative leave or issuing them last-chance
agreements, because they engage in protected concerted
activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Mosiah Grayton full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
The General Counsel has excepted to the judge’s failure to pass on
the complaint allegation that the Respondent violated Sec. 8(a)(1) by
placing Grayton on unpaid administrative leave on December 7, 2017,
because of her conduct at the December 6 meeting. We find merit in
this exception. As the judge found, the last-chance agreement convert-
ed Grayton’s unpaid administrative leave to an unpaid suspension.
Because we find that the last-chance agreement and the unpaid suspen-
sion violated Sec. 8(a)(1) for the reasons stated above, we find that the
unpaid administrative leave also violated Sec. 8(a)(1).
2 The judge neglected to include Conclusions of Law in his deci-
sion. We shall correct this inadvertent omission.
3 We shall modify the judge’s recommended Order to conform to
the violations found, the amended remedy, and the Board’s standard
remedial language, and in accordance with our decisions in Excel Con-
tainer, Inc., 325 NLRB 17 (1997), and Danbury Ambulance Service,
Inc., 369 NLRB No. 68 (2020). We shall also substitute a new notice
to conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Mosiah Grayton whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against her, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(c) Compensate Mosiah Grayton for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 5,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful admin-
istrative leave, suspension, last-chance agreement, and
discharge of Mosiah Grayton, and within 3 days thereaf-
ter, notify her in writing that this has been done and that
the administrative leave, suspension, last-chance agree-
ment, and discharge will not be used against her in any
way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Post at its Washington, D.C. V Street NE facility
copies of the attached notice marked “Appendix.”4 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 5, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
4 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have
returned to work, and the notices may not be posted until a substantial
complement of employees have returned to work. Any delay in the
physical posting of paper notices also applies to the electronic distribu-
tion of the notice if the Respondent customarily communicates with its
employees by electronic means.
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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. The Respondent shall take reasonable
steps to ensure that the notices are not altered, defaced,
or covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since December 7, 2017.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 5 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. July 17, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL 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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
AMERICAN MEDICAL RESPONSE MID-ATLANTIC, INC. 3
WE WILL NOT discharge, suspend, or otherwise dis-
criminate against any of you, including by placing you
on unpaid administrative leave or issuing you a last-
chance agreement, for engaging in protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Mosiah Grayton full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Mosiah Grayton whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest, and we will
also make Grayton whole for her reasonable search-for-
work and interim employment expenses, plus interest.
WE WILL compensate Mosiah Grayton for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and we will file with the Regional Director
for Region 5, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful administrative leave, suspension, last-chance agree-
ment, and discharge of Mosiah Grayton, and WE WILL,
within 3 days thereafter, notify her in writing that this
has been done and that the administrative leave, suspen-
sion, last-chance agreement, and discharge will not be
used against her in any way.
AMERICAN MEDICAL RESPONSE MID-ATLANTIC, INC.
The Board’s decision can be found at
www.nlrb.gov/case/05-CA-221233 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Christy E. Bergstresser, Esq., for the General Counsel.
John M. Barr, Esq. (Richmond, Virginia), for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, ADMINISTRATIVE LAW JUDGE. This
case was tried in Washington, D.C., on May 22‒23, 2019.
Mosiah O. Grayton, filed the initial charge on May 24, 2018.
She filed amended charges on June 4, 2018 and January 9,
2019. The General Counsel issued the complaint on February
4, 2019.
The General Counsel alleges that Respondent, American
Medical Response (AMR), violated the Act by suspending and
issuing Mosiah Grayton a last chance agreement in December
2017 and then by discharging her in May 2018 because she
violated the terms of the last chance agreement. The General
Counsel does not allege that the May 2018 conduct for which
Ms. Grayton was discharged was protected. However, the dis-
charge was predicated upon the last chance agreement, which
he alleges was issued for conduct that is protected by Section 7
of the Act.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent AMR is a corporation which operates ambulanc-
es in Washington, D.C. and elsewhere in the United States.2
AMR admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the American Federation of State, County and
Municipal Employees (AFSCME), District Council 20, which
represented Mosiah Grayton when she was employed by AMR,
is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Mosiah Grayton worked for Respondent as an emergency
medical technician (EMT) for 3 ½ years. Her employment with
AMR was not continuous. Grayton’s last period of employ-
ment was from March 2016 to May 24, 2018, when she was
terminated. As an EMT, Grayton transported low priority pa-
tients, for example taking them by ambulance from a nursing
home to a doctor’s appointment. Respondent’s EMTs work in
pairs. Throughout her last period of employment, Grayton’s
partner most of the time was Briana Hampleton.3
The events of November 2017
Generally, when EMTs return to their base of operations on
V Street N.E., a supervisor is present to meet them. One of
1 At Tr. 235, line 13, I either said or meant to say hearsay with re-
gard to matters asserted by Ms. Johnson, rather than Mr. Rohde.
2 Respondent operated in Washington, D.C. throughout 2018.
3 Grayton’s disciplinary record prior to November 2017 is not rele-
vant to this case. However, prior to November 2017, Respondent dis-
ciplined Grayton on 3 occasions for being tardy. In October 2017, it
suspended her for 2 days for tardiness. In June 2017, Respondent is-
sued Grayton discipline for speeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
things the supervisors check is the level of fuel in the ambu-
lances’ tank. The supervisor who meets them is not the same
person every time.
At the end of a shift on November 8, 2017, Grayton, who
was driving, and Hampleton, who was in the passenger seat of
the ambulance, returned to the base. They were met by Super-
visor Stephen Pawlak. Pawlak told them they must completely
fill the gas tank before clocking out. This is consistent with
Respondent’s Standard Operating Procedures. However, other
supervisors required the tank to be no more than ¾ full.4 Addi-
tionally, a white board on which supervisors left messages,
directed the EMT’s to ensure that the fuel tanks were ¾ full.
Grayton argued with Pawlak and refused to fill the tank to the
top.5
The events of December 6, 2017
In December Respondent suspended both Grayton and
Hampleton for 2 days, December 4 and 5, 2017, for misconduct
on November 8. On December 6, Grayton and Hampleton
went to the office of Paige Johnson, then Respondent’s Region-
al Administrative Supervisor.6 Johnson’s account of the meet-
ing and Grayton’s account are fairly similar and credited. Bri-
ana Hampleton’s account is somewhat different. I do not credit
Hampleton’s account to the extent it differs from that of John-
son and Grayton because it is apparent to me that Hampleton’s
overriding concern since December 6, has been to ensure that
she did not get into any more disciplinary trouble with Re-
spondent.7 What occurred is as follows (GC Exh.5) [December
6, 2017 notes of Paige Johnson and email of those notes to
Sonsaraye Byers, then AMR’s HR generalist].
Brianna Hampleton approached me about decision to suspend
her for refusal to refuel a truck. She indicated that Stephen
statement provided to management was incorrect because she
was never driving the unit and did not park unit. She also ex-
pressed concern that she was issued a suspension when she
has never received any previous write up. I explained to her
that progressive disciplinary action are in place for Attend-
ance & Punctuality violations but not for any other company
violations. While speaking to Ms. Hampleton Mosiah Gray-
4 The testimony of Grayton and Hampleton on this point is uncon-
tradicted. Pawlak, who is still a supervisor for AMR, did not testify.
Although Respondent represented that Pawlak was on military leave at
the time of this hearing, it made no representation regarding efforts to
have him testify. There is no evidence that he could not have done so.
5 In September 2017, Grayton complained to Paige Johnson that
Pawlak was displaying favoritism on the basis of race and asked that
Johnson investigate. Prior to Grayton’s complaint, another employee
complained to Johnson about Pawlak displaying favoritism in carrying
out his duties.
6 Johnson no longer worked for AMR at the time of this hearing. I
regard her account of the December 6, 2018 meeting, GC Exh. 5, to be
an admission of a party under Federal Rule of Evidence 801(d) and
therefore not hearsay and therefore credible.
7 Respondent had already suspended Hampleton for conduct which,
according to Hampleton, was solely Grayton’s. In her incident report
form, GC Exh. 8, Hampleton reticence is shown by her unwillingness
to mention the subject of the question she had for Paige Johnson. I
infer that Hampleton was afraid that she would be disciplined for Gray-
ton’s outburst on December 6.
ton burst into the conversation with high pitched tone stating
“How come its acceptable for some supervisor’s for units to
be brought at ¾ but not others” she indicated Mr. Siegel had
just asked about their fuel level coming off shift and he
deemed ¾ adequate. I tried to inform her that she should raise
that concern to management and she began to yell and say
“for what yall don’t look into our concerns and yall don’t
care, the same way I submitted a write up on Stephen Pawlak
being bias to crews and nobody looked into this” I tried to
speak again and she continued to cut me off so I told her to
back away from my office.
Ms. Hampleton remained in my doorway and Ms. Grayton
started to walk away I made statement “that I would not toler-
ate disrespect to which Ms. Grayton turned around and yelled
some more about how HR does nothing and other things.”
Again I verbalized “I would not tolerate any disrespect and
she could have a nice day.” After Ms. Grayton left out I print-
ed and provided Ms. Hampleton with the Grievance policy
and told her she should follow policy if she truly disagreed
with companies decision and she said Ms. Paige I don’t have
nothing to do with what just happened with Ms. Grayton and
thank you and left out of my office.
This is not the first time Ms. Grayton has displayed this type
of behavior at all.
I would like to make sure these accounts are documented and
provided to you in timely fashion to be addressed as this is not
the first time a provider has yelled or been combative or ar-
gumentative with me with no recourse!
(GC Exh. 5.)
I also credit Grayton’s testimony at Transcript 91‒92 which
adds details not contained in Johnson’s emails. Grayton com-
plained to Johnson that Hampleton’s suspension was unfair
because Hampleton never refused to fill the tank as directed by
Pawlak. She asked that Respondent rescind it. Grayton also
complained that supervisors were inconsistent with regard to
whether the fuel tank was to be full or ¾ full. When Johnson
asked her to document this inconsistency, Grayton started yell-
ing that human resources did not take her complaints, such as
her bias complaint about Pawlak seriously and never did any-
thing about them. Johnson also raised her voiced or yelled (Tr.
91‒95).
Respondent puts Mosiah Grayton on unpaid administrative
leave, suspends her and then has her sign a last chance agree-
ment
After receiving Johnson’s email of her notes on the afternoon
of December 6, Human Resources Generalist Sonsaraye Byers
placed Grayton on unpaid administrative leave on December 7.
She then investigated Paige Johnson’s complaint about Gray-
ton. She interviewed Johnson and Grayton and obtained a
statement from Hampleton, who denied remembering very
much about the incident.
AFSCME District Council 20 was certified in March 2017 to
represent Respondent’s EMTs. In December 2017 Respondent
and the Union were engaged in collective bargaining negotia-
AMERICAN MEDICAL RESPONSE MID-ATLANTIC, INC. 5
tions for a first contract.8 During negotiations Sonny Garibay,
staff representative for the Union, asked Byers to step outside
the negotiating room to give him an update on what level of
discipline Respondent was considering for Grayton.
Byers suggested at hearing that the initiative for a last chance
agreement came from Garibay. However, it is absolutely clear
that Respondent, by Byers, gave Grayton and the Union a
choice between agreeing to a last chance agreement or termina-
tion (Tr. 98‒100, 138‒139, 164‒166, 289‒290, GC Exh. 16).
Grayton and Gariby agreed to a last chance agreement because
they understood that Grayton would not be allowed to return to
work without signing such an agreement.Grayton and Gariby
signed a last chance agreement on December 15, 2017, (GC
Exh. 9). The agreement provided that:
Should Ms. Grayton have another issue related to her behav-
ior during this Last Chance Period [6 months], Ms. Grayton’s
employment shall be terminated without recourse to any
grievance and arbitration procedures set forth in any then ap-
plicable collective bargaining agreement…
The Union and Ms. Grayton agree that upon execution of this
Agreement by all Parties, all matters set forth herein shall be
considered and deemed to be fully and finally resolved, and
that neither the suspension nor Last Chance Period, nor this
Agreement shall be subject to the Company’s grievance pro-
cess as defined in the employee handbook.
As a result of this agreement, Respondent changed Grayton’s
unpaid administrative leave into an unpaid suspension (GC
Exh. 9). In December 2017, the Union and Respondent did not
have an interim agreement regarding discipline. Respondent
had its own internal grievance procedure. The last chance
agreement, however, as stated above, provided that it would not
be subject to that process.
Between December 2017 and May 2018, there were several
unsubstantiated allegations of misconduct by Grayton for which
she was not disciplined.9 However, on May 7, a social worker
complained to Respondent about his or her interaction with
Grayton and Hampleton relative to their transport of a psychiat-
ric patient to the United Medical Center in Southeast Washing-
ton, D.C. Respondent also learned that Grayton and Hampleton
had ordered food for themselves and the patient while at the
hospital (GC. Exh. 10).
As a result of this incident, Respondent terminated Grayton
for violating the terms of her last chance agreement. Grayton
unsuccessfully invoked Respondent’s grievance procedure at
steps 1 and 2. AMR issued Hampleton a final written warning.
8 Respondent and the Union did not reach agreement on a collective
bargaining agreement until August 2018.
9 An employee named Joshua Moody made several harassment
complaints against Grayton. Grayton testified she was placed on un-
paid administrative leave as the result of one or two of these com-
plaints. The record indicates that she was not disciplined and paid for
one such leave period. While the record is unclear, I infer that she was
ultimately paid for the second leave (assuming there was a second) as
there is no indication in the record that Respondent ever disciplined
Grayton as the result of Moody’s complaints, Tr. 139‒140, 260‒262.
ANALYSIS
Mosiah Grayton engaged in protected concerted activity on
December 6, 2017.
Section 7 provides that, “employees shall have the right to
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection . . .
(Emphasis added).”
In Myers Industries (Myers 1), 268 NLRB 493 (1984), and in
Myers Industries (Myers 11) 281 NLRB 882 (1986), the Board
held that “concerted activities” protected by Section 7 are those
“engaged in with or on the authority of other employees, and
not solely by and on behalf of the employee himself.” Howev-
er, the activities of a single employee in enlisting the support of
fellow employees in mutual aid and protection is as much con-
certed activity as is ordinary group activity.
Additionally, the Board held in Amelio’s, 301 NLRB 182
(1991), that in order to present a prima facie case that an em-
ployer has discharged an employee in violation of Section
8(a)(1), the General Counsel must establish that the employer
knew of the concerted nature of the activity.10
Grayton’s conduct was protected and concerted in that she
was making common cause with Hampleton in protesting
Hampleton’s suspension. Assisting other employees affected
by the employer’s action, i.e., Hampleton’s suspension, falls
within the Act’s “mutual aid and protection” clause of Section
7, even if the assisting employee is not personally affected,
Butler Medical Transport, LLC, 365 NLRB No. 112 (2017);
Richboro Community Mental Health Council, 242 NLRB 1267,
1267‒1268 (1979); Delta Health Center, 310 NLRB 26, 43
(1993). Moreover, Grayton’s outburst concerned Respondent’s
application of its fuel gage policy, which was an obvious mutu-
al concern of Grayton and Hampleton, who had both been dis-
ciplined for violating that policy.11
10 Also see, Lou’s Transport, Inc., 361 NLRB 1446, 1447 (2014);
Correctional Medical Services, 356 NLRB 277 (2010).
11 Respondent ascribes a great deal of significance to the fact that
Grayton was standing in the doorway of Johnson’s office rather being
inside the room when Hampleton started her conversation with John-
son. This is completely irrelevant. Johnson’s statement establishes that
she was aware that Grayton was complaining about the application of
Respondent’s fuel policy to herself and Hampleton.
Respondent also ascribes a great deal of significance to Hampleton’s
statement to Johnson that she did not have anything to do with what
just happened and her apparent initial refusal to give Respondent a
statement [Nope, that has nothing to do with me., GC Exh. 6]. It is
crystal clear that Hampleton was referring to Grayton’s tone in her
outburst as opposed to the subject matter of Grayton’s outburst. At that
time and even at the instant hearing, Hampleton was very worried about
receiving additional discipline as the result of Grayton’s conduct.
Johnson’s statement establishes that Hampleton already believed that
she was being disciplined for alleged misconduct on the part of Gray-
ton, i.e., refusing to refuel the ambulance on November 8.
Also irrelevant to the resolution of this case are statements by Gray-
ton and union representative Gariby that some form of discipline was
appropriate for Grayton’s December 6 outburst. Either her conduct in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
In addition, Grayton’s complaint about supervisor Pawlak
was concerted and not simply a matter of personal concern.
Respondent knew that Grayton’s complaints about Pawlak were
a group concern because it had received at least one other com-
plaint about him, prior to September 2017 (GC Exh. 4).
Mosiah Grayton’s conduct on December 6, 2017 did not forfeit
the protections of the Act.
An employer’s imposition of discipline violates the Act if it
relies on prior discipline that violated the Act and fails to show
it would have issued the same discipline even without reliance
on the prior unlawful discipline, Southern Bakeries, LLC, 366
NLRB No. 78 (2018); Dynamics Corp., 296 NLRB 1252,
1252‒1255 (1989), enfd. 928 F.2d 609 (2d Cir. 1991); Celotex
Corp., 259 NLRB 1186, 1186 fn. 2, 1190‒1193 (1982).12 The
Board has long held that employers should not be “permitted to
take advantage of their unlawful actions, even if employees
may have engaged in conduct that in other circumstances-might
justify discipline,” Postal Service, 367 NLRB No. 142 (2019).
In the instant case, Respondent concedes that it would not
have terminated Mosiah Grayton had she not violated the De-
cember 2017 last chance agreement. Thus, the question is
whether the last chance agreement was unlawful.
One issue in this case is whether Grayton’s conduct in her
December 6 meeting with Paige Johnson was of such a nature
that she forfeited the protection of the Act. The criteria for
evaluating whether an employee’s conduct while engaging in
protected activity forfeits the protection of the Act depends in
part on when and where the allegedly protected conduct oc-
curred. In the case of direct communications between an em-
ployee and manager or supervisor, the criteria is set forth in
Atlantic Steel Co., 245 NLRB 814 (1979). In making this de-
termination the Board balances four factors: 1) the place of
discussion; 2) the subject matter of the discussion; 3) the nature
of the employee’s outburst and 4) whether the outburst was
provoked by an employer’s unfair labor practice; Also see
Overnite Transportation Co., 343 NLRB 1431, 1437 (2004).
Grayton’s outburst occurred at Respondent’s facility in Paige
Johnson’s office. It did not disrupt Respondent’s operations.
The subject under discussion was Respondent’s suspension of
Hampleton and Grayton’s perception that Respondent was not
responding to her complaints, including complaints about fa-
voritism and inconsistent application of its rules regarding the
gas tanks. Grayton did not curse and did not threaten Johnson.
Moreover, although her outburst was not provoked by an unfair
labor practice, it was provoked by what she perceived to be
Respondent’s inaction regarding her prior concerted com-
Johnson’s office was protected or it wasn’t. If it was protected, no
form of discipline would have been legal.
Respondent also suggests that Grayton outburst was made in bad
faith because Respondent had investigated her complaints about super-
visor Pawlak. There is no evidence that Respondent made Grayton
aware of any investigation or follow-up on her complaints.
12 In Celotex, as in the instant case, there had not been a prior de-
termination that the initial discipline was unlawful until the Board
adjudicated the subsequent discipline (a suspension) and the discipline
upon which it was predicated (a warning).
plaints.13
In St. Margaret Mercy Health Care Centers, 350 NLRB
203, 204‒205 (2007), the Board citing Dreis & Krump Mfg. v.
NLRB, 544 F. 2d 320 (7th Cir. 1976), stated the test as follows:
Otherwise protected activity remain[s] protected unless found
to be ‘so violent or of such serious character as to render the
employee unfit for further service.’
Raising one’s voice and an insolent manner, are insufficient
to forfeit the protections of the Act, Firch Baking Co., 232
NLRB 772 (1977); Postal Service, 251 NLRB 252, 259 (1980)
enfd. 652 F. 2d 409 (5th Cir. 1981). Other factors that weigh in
favor of protection are that this was a single incident, not a
sustained course of action, that Grayton did not threaten John-
son and that Johnson herself yelled or raised her voice, Cadillac
of Naperville, Inc., 368 NLRB No. 3 (2019). In sum, I find that
the totality of Board precedent leads me to conclude that Gray-
ton did not forfeit the protection of the Act. Thus, Respondent
violated the Act in suspending her and giving her a last chance
agreement in December 2017. Due its reliance on the Decem-
ber 2017 last chance agreement in May 2018, Respondent vio-
lated the Act in terminating her employment.
The issue of whether Grayton’s December 2017 suspension and
last chance agreement are barred by Section 10(b) of the Act is
not properly before me.14
Section 10(b) of the Act prohibits the General Counsel from
issuing a complaint based on an unfair labor practice occurring
more than six months prior to the filing of the charge with the
Board. However, an employer must raise this statute of limita-
tions defense either in its answer or at trial, Newspapers and
Mail Delivers (New York Post), 337 NLRB 608, 609 (2002). If
raised for the first time in its post-trial brief, the Section 10(b)
argument cannot be considered, Paul Mueller Co., 337 NLRB
764 (2002). Although at trial Respondent alluded to the fact
that Grayton did not specifically mention the last chance
agreement in her initial charge and first amended charge, it
never argued that consideration of the last chance agreement
was time-barred. Thus, this argument is not properly before
me.
However, assuming that I could consider a 10(b) argument, I
would reject it. On May 24, 2018, Mosiah Grayton filed an
unfair labor practice alleging that Respondent violated Section
8(a)(3) and (1) in discharging her. The Board served this
charge on Respondent on June 1, 2018. On June 4, 2018, she
filed an amended charge alleging that Respondent disparately
disciplined and subjected her to increased scrutiny to discour-
age employees from engaging in union or other protected activ-
ity. She also alleged Respondent violated the Act in terminat-
13 Erik Rohde’s testimony that Paige Johnson told him that she was
afraid of a physical altercation is not credible. Johnson, in her Decem-
ber 8 interview with Byers, stated that Grayton was not being com-
bative; merely that she was yelling. Johnson stated that she did not feel
threatened, (GC Exh. 18).
14 The General Counsel’s brief addresses the issue as to whether the
General Counsel is somehow barred from litigating the last chance
agreement by virtue of the fact that Grayton agreed to it. However,
Respondent did not plead this as a defense or assert this as a defense in
its brief. This issue is also not properly before me.
AMERICAN MEDICAL RESPONSE MID-ATLANTIC, INC. 7
ing her for her union activities. The first amended charge was
served on June 5.
Both the initial charge and the first amended charge were
filed and served upon Respondent within 6 months of Respond-
ent issuing Grayton a last chance agreement. However, it was
not until January 9, 2019, that Grayton specifically alleged in
her second amended charge that Respondent violated the Act in
issuing her the last chance agreement on December 15, 2017.
The United States Supreme Court in NLRB v. Fant Milling
Co., 360 U.S. 301, 307‒308 (1959) held that a charge merely
sets in motion the NLRB’s inquiry; it need not be as specific as
a judicial pleading. The General Counsel’s complaint can
therefore deal with any unfair labor practice related to those
alleged in the charge and which grow out of the allegations in
the charge while the proceeding is pending before the Board.
In Redd-I, Inc., 290 NLRB 1115 (1988) and Nickles Bakery
of Indiana, 296 NLRB 927 (1989), the Board held that a com-
plaint allegation satisfies the Fant Milling criteria if it involves
the same legal theory as that contained in a pending timely
charge, arises from the same factual circumstances or sequence
of events as a timely charge and if a respondent would raise
similar defenses to those in the charge.
I find that the complaint in alleging that the last chance
agreement violated the Act is sufficiently related to the timely
filed initial and first amend charge to pass muster under Section
10(b). The last chance agreement was part of the sequence of
events leading to Grayton’s discharge, which she specifically
mentioned in the timely filed charges.
REMEDY
The Respondent, having illegally suspended and later dis-
charged Mosiah Grayton, must offer her reinstatement and
make her whole for any loss of earnings and other benefits.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). Respondent shall compensate her for her
search-for-work and interim employment expenses regardless
of whether those expenses exceed her interim earnings, com-
puted as described above.
Respondent shall file a report with the Regional Director for
Region 5 allocating backpay to the appropriate calendar quar-
ters. Respondent shall also compensate Mosiah Grayton for the
adverse tax consequences, if any, of receiving one or more
lump-sum backpay awards covering periods longer than 1 year,
AdvoServ of New Jersey, 363 NLRB No. 143 (2016).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, American Medical Response, its officers,
agents, successors, and assigns, shall
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
1. Cease and desist from
(a) Discharging, suspending, or otherwise discriminating
against any employee for engaging in protected concerted ac-
tivity.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Mosiah Grayton full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Mosiah Grayton whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her (including her unpaid suspension in December 2017
and her termination), in the manner set forth in the remedy
section of the decision.
(c) Compensate Mosiah Grayton for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
file with the Regional Director for Region 5, within 21 days of
the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the ap-
propriate calendar years.
(d) Compensate Mosiah Grayton for her search-for-work
and interim employment expenses regardless of whether those
expenses exceed their interim earnings.
(e) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the suspension, unlawful
last chance agreement and discharge and within 3 days thereaf-
ter notify Mosiah Grayton in writing that this has been done
and that the suspension, last chance agreement and discharge
will not be used against her in any way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its
Washington, D.C. V street N.E. facility copies of the attached
notice marked “Appendix”.16 Copies of the notice, on forms
provided by the Regional Director for Region 5, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical post-
ing of paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
16 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since December 15, 2017.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. July 18, 2019
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge, suspend, or otherwise discriminate
against any of you for engaging in protected concerted activity.
WE WILL NOT give you a last chance agreement in retaliation
for your protected concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Mosiah Grayton full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Mosiah Grayton whole for any loss of earn-
ings and other benefits resulting from her discharge, December
2017 suspension and last chance agreement, less any net inter-
im earnings, plus interest compounded daily.
WE WILL compensate Mosiah Grayton for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and WE WILL file a report with the Regional Director for Region
5 allocating the backpay award to the appropriate calendar
quarters.
WE WILL compensate Mosiah Grayton for her search-for-
work and interim employment expenses regardless of whether
those expenses exceed her interim earnings.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful suspension, last
chance agreement and discharge of Mosiah Grayton.
WE WILL, within 3 days thereafter, notify her in writing that
this has been done and that the suspension, last chance agree-
ment and discharge will not be used against her in any way.
AMERICAN MEDICAL RESPONSE MID-ATLANTIC, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/05-CA-221233 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273‒1940.