Medic Ambulance Service, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 10, 2014

20-CA-109532 (N.L.R.B. Jun. 10, 2014)

JD(SF)–25–14
Vallejo, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
MEDIC AMBULANCE SERVICE
and Cases 20-CA-109532
20-CA-111325
UNITED EMERGENCY MEDICAL
SERVICES WORKERS, LOCAL 4911,
AFSCME, AFL-CIO
Cecily Vix, Esq. and Marta I. Novoa, Esq. for
the General Counsel
Patrick Jordan, Esq. for the Respondent
Jeffrey A. Misner for the Charging Party
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge: In Alan Ritchey, Inc., 359 NLRB
No. 40, slip op. at 1-2, 8-10 (2012), the Board held, inter alia, that during the period after a union
is recognized but before a first contract or an interim grievance procedure is in place, an
employer must bargain with the union before exercising its discretion to impose certain
discipline such as suspension, demotion, or discharge. The holding in Alan Ritchey is applicable
prospectively only; that is, only after the date of its issuance on December 12, 2012. Id. slip op.
at 11.
The General Counsel alleges that during the interim between recognition of United
Emergency Medical Services Workers, Local 4911, AFSCME, AFL-CIO (the Union) and
agreement upon a first contract or an interim grievance procedure, Medic Ambulance Service
(Respondent) violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act)1 by
failure to provide notice and an opportunity to engage in preimposition bargaining about the
discharge of 12 employees.2 Although there is no dispute regarding the lack of preimposition
notice, Respondent defends the allegation claiming an interim grievance procedure was in place
and, in any event, the discipline did not involve the exercise of discretion. The General Counsel
further alleges that one of the twelve dischargees was denied a Weingarten representative.3

1 29 U.S.C. §158(a)(5) and (1).
2 The unfair labor practice charge in Case 20-CA-109532 was filed by the Union on July 19, 2013. The charge
in Case 20-CA-111325 was filed by the Union on August 13, 2013. The consolidated complaint and notice of
hearing (the complaint) issued on November 19, 2013. The complaint was amended prior to hearing and further
amended at hearing. Hearing was held in San Francisco on February 25, March 12 and 19, 2014.
3 In NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256-257 (1975), the Court held that an employee who
reasonably believes that an investigatory interview will result in discipline is entitled to representation at the
interview.
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No collective-bargaining agreement was in effect at the time of the discharges.
Nevertheless, at all times the parties honored certain of the terms of an expired collective-
bargaining agreement. That agreement contained a three-step grievance and arbitration process.
The parties agreed to be bound by the first two steps in the grievance process and they further
agreed that there would be no right to arbitration of grievances, the third step, until a new
contract was signed. Under these circumstances, I find that the first two steps of the expired
contract constitute an agreed-upon interim grievance procedure. Thus I find that even though
Respondent exercised discretion regarding the 12 discharges, it was not under an obligation to
provide advance notice and opportunity to bargain before imposing the discipline. I further find
that there was no violation of Weingarten rights in the March 29, 2013 interview of employee
Lisa Wilson because the purpose of the meeting was solely to announce previously determined
discipline.
On the entire record, including my observation of the demeanor of the witnesses,4 and
after considering the excellent briefs filed by counsel for the General Counsel5 and counsel for
the Respondent, I make the following findings of fact and conclusions of law.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent is a corporation with offices in Vallejo, California. It provides ambulance
and medical transportation services. Respondent admits that it meets the Board’s jurisdictional
standards and further admits that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Respondent further admits that the Union is a labor
organization within the meaning of Section 2(5) of the Act. Thus I find that this dispute affects
commerce and that the Board has jurisdiction of this case pursuant to Section 10(a) of the Act.
II. CORPORATE AND COLLECTIVE-BARGAINING BACKGROUND
Respondent provides paramedic service, 911 emergency service, and non-emergency
transport for Solano County, California. On March 16, 2012, the following unit of employees,
appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act,
was certified by the Board:
All full-time and regular part-time Paramedics, EMTs, Dispatchers, and SSTs
employed by Respondent working at or from its facilities in Solano County,
excluding all other employees, guards and supervisors, as defined in the Act as
amended.

4 Credibility resolutions have been made based upon a review of the entire record and all exhibits in this
proceeding. Witness demeanor and inherent probability of the testimony have been utilized to assess credibility.
Testimony contrary to my findings has been discredited on some occasions because it was in conflict with credited
testimony or documents or because it was inherently incredible and unworthy of belief.
5 Counsel for the General Counsel’s motion to correct a minor typographical error in her brief is granted.
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Based on Section 9(a) of the Act, since the certification the Union has been the exclusive
collective-bargaining representative of unit employees.
Prior to the Union’s certification on March 16, 2012, the approximately 140-150 unit
employees were represented by the National EMS Association (NEMSA). The most recent
NEMSA contract was effective December 1, 2006 through November 30, 2011. Since expiration
of the NEMSA contract, Respondent has generally adhered to the terms and conditions in this
expired agreement. Although the parties began bargaining after the Union’s certification, no
agreement has been reached.
III.DISCRETIONARY ASPECT OF IMPOSITION OF DISCIPLINE
Respondent argues that its disciplinary system does not require the exercise of discretion
and thus it did not violate the Act by failure to provide preimposition notice and opportunity to
bargain to the Union. I find that Respondent retains discretion and may utilize discretion on a
case by case basis within the broad contours of its disciplinary system. I further find that
Respondent did in fact exercise discretion with regard to the 12 discharges at issue.6
Facts
There is no progressive disciplinary policy set forth in the expired NEMSA agreement.
Respondent’s employee handbook identifies “some types of conduct that are impermissible and
that may lead to disciplinary action, possibly including immediate termination.” (Emphasis
added.) Various actions are cited as grounds for immediate discharge without warning. Other
offenses are listed as grounds for suspension. “The second or subsequent violation of any of the
rules may result in discharge. Such second subsequent violation need not be of the same rule
originally violated.” Violation of other rules will result in “appropriate disciplinary action, either
in the form of a verbal warning or a written warning. The second or subsequent violation of any
of these rules may lead to suspension.” (Emphasis added.)
In addition to the handbook explanation, there is another level of oversight through
quality assurance. These offenses are labeled QA levels 1 through 4 with level 4 being the most
serious offenses. QA level 1, for example, might consist of a minor lapse in protocol compliance
such as failing to put a monitor on a patient in a timely manner. Respondent’s Administrator Tim
Bonifay (Bonifay) explained that this level of offense would be relatively minor with no danger
to the patient. QA level 2 is a more serious but non-life-threatening offense which results in a
verbal warning. QA level 3 offenses usually warrant a written disciplinary action and involve a
more egregious violation, perhaps administering the wrong medication or the wrong dosage of a
medication. QA level 4 involves a potentially life-threatening misinterpretation or omission.
Administrator Bonifay explained that the discipline model utilized by Respondent was
based on just cause. He stated,

6 Respondent objected to amendment of the complaint at hearing to add 11 additional alleged discharges in
violation of Alan Ritchey. I adhere to my ruling allowing amendment for the reasons set forth in Sec. VI of this
decision.
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It’s not strictly progressive discipline. If we felt that progressive discipline fell
under just cause, that’s what we would use. If we felt that there were some issues
that warranted immediate terminations, then that’s what would happen while the
overlying or the overarching methodology would be to follow just cause.
He explained that some offenses warrant immediate termination. Minor offenses warrant
something less. Respondent uses the language “up to termination,” a discretionary descriptive, to
refer to future actions which may be taken following a lesser disciplinary sanction.
Further, Respondent utilizes discretion on some occasions in that it determines not to
discharge employees for dischargeable offenses. For example, in December 2012, an employee
failed to call in or show up for his scheduled shift. His record indicated multiple incidents of
absenteeism and tardiness as well as a prior suspension for a “no call/no show.” Respondent
asserted that these offenses provided grounds for termination but, “we desire to not terminate
your employment at this time.” Instead, Respondent forwarded a “non-precedent setting”
disciplinary agreement to the Union instituting a final warning with six months probation and
administrative relocation of the employee. The Union signed this document. Labor
Representative Jeffrey Misner (Misner) characterized the document as a “last chance”
agreement. Bonifay explained that the use of “non-precedent setting” disciplinary agreements
originated in dealings between Respondent and NEMSA and he continued utilizing the practice
when the Union began representing employees
A similar use of discretion was employed in February 2013 when an employee received a
termination letter for deviation from protocol after a suspension for the same offense two months
before. During the termination discussion, the employee stated she would take responsibility for
her actions and asked for an opportunity to prove herself, assuring Respondent that the offense
would not recur. The employee was returned to work pursuant to an agreement signed by the
Union with a one-year probationary period. The parties agreed that the Union would not process
a grievance regarding the discharge and that the agreement was a “non-precedent setting”
disciplinary agreement.
Non-precedent setting agreements were made on other occasions. In late March 2012, an
employee lost a glucometer and failed to notice its loss therefore continuing operation without
the required equipment. A similar incident earlier that month had already led to suspension of the
employee. Respondent noted that historically it terminated employees due to such a recurrence of
a similar event. “However, due to your tenure, it is not our desire to terminate you.” The Union
signed the “non-precedent setting” agreement to impose a 3-shift suspension rather than a
termination. Again, in late March 2012, another employee’s termination for loss of equipment
without timely reporting or replacing it for the remainder of the shift was converted to
suspension in a non-precedential agreement with the Union.
In July 2013, a “disturbing pattern of [quality assurance] errors, work rule violations, and
safety issues” warranted termination but “in lieu of termination” a final warning and extension of
probation were administered. In November 2013, although Respondent has “the absolute right to
terminate your employment due to the circumstances surrounding the above-referenced call, due
to your longevity with [Respondent] we have decided to not pursue termination but rather
remediation.” This non-precedential agreement was signed by the Union after a meeting with the
Union to draw the contours of a remediation plan. In late January 2014, an employee’s false
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claim for overtime was handled as a suspension rather than a termination because the employee
had just returned from a prolonged leave of absence and was having difficulty completing work
on time. In February 2014, falsification of a document by signing a patient’s name in the
financial responsibility section, a first time terminable offense, was converted by a non-
precedential agreement waiving future “grievance and arbitration” of future violations to a
suspension. The Union withdrew a pending grievance pursuant to this agreement. None of these
agreements were negotiated with the Union. Misner testified that he signed them because
otherwise the employees would have been terminated. Nevertheless, Respondent exercised its
discretion in proposing them to the Union.
However, on another occasion, according to Bonifay, there was absolutely no discretion
involved. An employee who was involved in a witnessed ambulance accident and failed to
timely report the accident and was repeatedly dishonest during investigation of the accident was
discharged immediately.
Bonifay testified that the conduct of employee Ryan Birch (complaint par. 8(b))
constituted a nondiscretionary discharge. “Well, some of the actions that he had, in my opinion,
didn’t warrant a second chance. He was completely unprofessional and unsafe.” Further, Birch
admitted that he lied during the ensuing investigation. Employee Lisa Wilson (complaint par.
8(a)) was given two final “last chance” warnings. One in January 2013 and another in March
2013.
Bonifay testified that the discharge of employee Katrina Burton (complaint par. 8(d)) was
based on grounds for immediate termination, that is, repeated failure to follow dispatch protocol.
Employee Aaron Schreieck (complaint par. 8(h)) was discharged for “one of the most egregious
offenses you can have as a paramedic, refusing to respond to an emergency call,” an immediately
terminable offense. Employee Jen Wright (complaint par. 8(j)) made numerous dispatch errors
and was repeatedly warned and suspended. Her failure to correct those errors resulted in her
dismissal. Employee Erick Angulo (complaint par. 8(l)) was terminated for failure to submit
proof of current and valid license. Respondent requested proof on four occasions without
receiving a response from Angulo. None of these discharges involved the exercise of discretion
according to Respondent.
Analysis
In Alan Ritchey, supra, 359 NLRB No. 40, slip op. at 1, the Board referred to
discretionary discipline as that occurring “when the employer does not alter broad, preexisting
standards of conduct but exercises discretion over whether and how to discipline individuals.”
Analogizing to the exercise of discretion in the context of a merit increase program, the Board
quoted Oneita Knitting Mills, 205 NLRB 500 (1973):
What is required is a maintenance of preexisting practices . . . however the
implementation of that program (to the extent that discretion has existed in
determining the amounts or timing of the increases), becomes a matter as to which
the bargaining agent is entitled to be consulted.
Alan Ritchey, supra, 359 NLRB No. 40, slip op. at 5.
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Further, the Board noted that in the disciplinary context, discretion may exist:
Accordingly, where an employer’s disciplinary system is fixed as to the broad
standards for determining whether a violation has occurred, but discretionary as to
whether or what type of discipline will be imposed in particular circumstances,
we hold that an employer must maintain the fixed aspects of the discipline system
and bargain with the union over the discretionary aspects (if any), e.g., whether to
impose discipline in individual cases and, if so, the type of discipline to impose.
The duty to bargain is triggered before a suspension, demotion, discharge, or
analogous sanction is imposed, but after imposition for lesser sanctions, such as
oral or written warnings.
Alan Ritchey, supra, 359 NLRB No. 40, slip op. at 6.
It is undisputed that Respondent provided postimplementation notice for many but not all
of the discharges. The grounds for the 12 discharges at issue were stealing time; dishonesty in an
investigation, and violation of multiple work rules including unsafe and unprofessional conduct;
dishonesty regarding the completion of timecard, insubordination to a supervisor, falsification of
hours on timecard, and negligence of job duties; repeated failure to follow proper dispatch
protocol; failure to properly inventory and restock inventory thus delaying provision of
emergency medical treatment to patient; refusal to respond to a call for service and dishonesty to
a supervisor; dishonesty and unprofessionalism; failure to respond to a 9-1-1 call; reporting for
work tardy and deviating from protocol by making unauthorized stop on the way to call;
incurring unnecessary and unauthorized overtime; failure to stop at the scene of an ambulance-
involved accident with stable patient on board; and failure to maintain license in current and
valid status.
Some of the terminated employees had received prior discipline with the admonition that
future failure to adequately perform the job might result in discharge. In one case the employee’s
prior disciplinary notice stated that subject to the sole discretion of Respondent any further
offense will result in termination.
Although discretion may not be utilized in each and every instance of discharge, it is
clear that Respondent retained discretion and could utilize discretion on a case-by-case basis
within the broad standards of its disciplinary system to determine whether just cause for
discharge exists or, alternatively, whether the employee deserves a second chance. Respondent
utilizes a range of discipline “up to termination” for offenses. As Bonifay stated, Respondent’s
system is not strictly progressive discipline but more akin to just cause. Although Bonifay
described some of the 12 discharges as constituting immediately terminable offenses,
Respondent’s actions indicate that it retained discretion, even in cases of severe dereliction of
duty, to give employees a non-precedent setting last chance. Thus, I find that within
Respondent’s system, there is the potential for utilization of discretion with regard to any
dischargeable offense.
Examples of Respondent’s specific implementation of its disciplinary system are also
consistent with this finding. Generally, discretion was utilized in application of the disciplinary
system. On numerous occasions, Respondent found that specific offenses provided grounds for
termination but Respondent nevertheless made a decision not to terminate. For example, a lesser
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discipline was imposed due to an employee’s admission of past mistakes and a promise that the
mistakes would not recur. In another instance, an employee’s longevity with the company was
cited as a reason for imposition of a lesser discipline than discharge even though discharge was
warranted. Similarly, return from a prolonged leave of absence was the basis for a lesser
discipline than discharge. The decision not to terminate for a terminable offense obviously
involves the exercise of discretion.
Sometimes Respondent exercised its discretion to forego discharge in the face of
dischargeable offenses. On these occasions, Respondent entered into a non-precedent setting
agreement with the Union. On other occasions, Respondent opted to discharge employees for
dischargeable offenses. Both of these situations indicate exercise of a degree of discretion.
Indeed, in Alan Ritchey the Board acknowledged that “discretion is inherent – and perhaps
unavoidable” in the context of discipline. Id., slip op. at 10.
On the record as a whole, I find that after carefully considering serious dischargeable
offenses, Respondent exercised thoughtful analysis and discretion on a case-by-case basis and
determined to either give the employee another chance or to discharge the employee. This
thoughtful consideration was given to each of the 12 discharges at issue.Thus, absent an agreed-
upon grievance procedure, once Respondent investigated the situation and made a decision to
impose discipline but prior to implementing the discipline, Respondent was obligated to notify
the Union and afford it an opportunity to bargain. Accordingly, I find that because the exercise of
discretion was utilized in Respondent’s actions in application of its disciplinary system to
discharge the 12 employees, the duty to provide preimposition notice and an opportunity to
bargain with the Union was triggered absent an agreed-upon interim grievance procedure.
IV. INTERIM GRIEVANCE PROCEDURE
Respondent claims failure to provide preimposition notice and opportunity to bargain
over the 12 discharges was excused because the parties were operating pursuant to an agreed-
upon interim grievance procedure, that is, two of the three-steps in the expired NEMSA contract.
The General Counsel disagrees arguing that the parties did not negotiate an interim grievance
procedure. The General Counsel further asserts that any interim grievance procedure must
incorporate arbitration in order to provide safe harbor to an employer. In agreement with
Respondent, I find that the parties agreed to utilize the first two steps of the expired NEMSA
contract as an interim process and that this process, which does not contain an option for
arbitration, satisfies that requirements set forth in Alan Ritchey.
Facts
The expired NEMSA agreement provides for three steps in its grievance and arbitration
clause. At the first step, the union representative and the department or division director meet
with the grievant to resolve the complaint. If no resolution occurs, the matter may proceed to step
two. At step two, the operations manager becomes involved and the parties once again attempt to
resolve the dispute. If step two is unsuccessful, the expired NEMSA contract provides that the
Union may refer the matter to final and binding arbitration as a third and final step.
Shortly after the Union was certified, Misner met with Bonifay. Misner and Bonifay were
both former NEMSA union representatives and had been acquainted for a number of years. They
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and other personnel routinely referred to the parties’ current status under the expired NEMSA
agreement as a status quo period. According to Misner, shortly after the Union’s certification,
Bonifay told him that he wanted to make sure they both understood that there would be no
arbitration until a new agreement was in place. In other words, there would be no recourse past a
level two grievance. Misner responded that he did understand.7 Bonifay recalled the meeting but
denied making the no recourse past level two statement. Bonifay’s recollection was that he and
Misner discussed their service with NEMSA and various personalities in that organization.
Bonifay denied that there was any substantive discussion about grievance and arbitration in the
meeting.
Noting that both Misner and Bonifay were highly articulate, credible witnesses with years
of professional service representing employees, I nevertheless credit Misner and find that
Bonifay stated the general rule that arbitration does not survive expiration of a contract. Misner
described the procedure that remained as retaining an ability to file grievances as a process
which could lead to resolution of disputes as long as a third party was not needed. Misner’s
recollection of Bonifay’s statement is in accord with the actions of the parties. The Union
certainly acted according to their understanding that arbitration did not survive expiration of the
NEMSA contract in that they filed grievances but did not demand arbitration of any grievance
filed since their certification.
The parties began bargaining for a new agreement in the summer or fall of 2012. The
Union is represented at the bargaining table by Chief Negotiator Kurt Ostrander, Labor
Representative Misner, and Chief Steward Casey Vanier. Respondent’s representatives include
Lead Negotiator Bonifay, President Rudy Manfredi, Vice-President James Pierson, and CFO
Helen Pierson. There have been 35 or 36 bargaining sessions. At the time of hearing, the parties
had not reached agreement for a new contract.
However, the parties reached a tentative agreement on grievance and arbitration (G&A
TA) on October 24, 2012. The G&A TA was initialed on that date by both Respondent and
Union representatives. The G&A TA is not a carbon copy of the language in the expired
NEMSA contract. However, both contain three steps and in both, the third step is arbitration. By
its literal terms, the G&A TA does not state that it will go into effect immediately upon being
tentatively agreed upon.
Misner attended the bargaining session on October 24, 2012. He testified that all tentative
agreements reached were utilized to build a new memorandum of understanding between
Respondent and the Union subject to ratification and implementation after negotiation was
completed. Misner specifically testified that there was no agreement that the tentative agreement
reached on October 24, 2012, regarding grievance and arbitration would be effective
immediately or at some specific future time. This testimony was not rebutted and I credit it.
Since the Union’s certification, it has filed four grievances. In October 2012, a grievance

7 Certainly, such an understanding would be in accord with the general rule that grievance procedures must be
continued post-expiration but grievances not arising under an expired collective-bargaining agreement are not
subject to arbitration. Litton Financial Printing Division v. NLRB, 501 U.S. 190, 198 (1991). See also, Indiana &
Michigan Electric Co., 284 NLRB 53, 58 (1987); Hilton-Davis Chemical Co., 185 NLRB 241, 242 (1970).
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was filed for a written warning and suspension involving a delayed response. The parties met and
the grievance was denied in November 2012. Two grievances were filed in June 2013. The
parties met on these grievances in July. One of the grievances was settled and withdrawn and the
other was denied. In January 2014, the Union filed a grievance regarding a discharge. It was
denied as untimely.
In the absence of grievances, two potentially dischargeable actions, one in July 2013 and
one in November 2013, were discussed preimposition between the Union and Respondent. In
both instances, Respondent agreed to remediate rather than discharge. Another informal
discussion in November 2013 resulted in discharge of an employee. On numerous other
occasions, in the absence of grievances, there was no discussion between the Union and
Respondent when Respondent determined it would attempt remediation rather than discharge an
employee. In those instances, Respondent sent the remediation agreement to the Union for
signature. In each instance, the Union signed these agreements and no grievances were filed
regarding these disciplines.
Analysis
The parties agree that Alan Ritchey is applicable. At the hearing, Respondent claimed it
had an agreed-upon interim grievance process because it never said it would not arbitrate post-
expiration of the NEMSA contract and, in any event, the G&A TA took immediate effect and
provided for an agreed-upon grievance and arbitration procedure. On brief, Respondent
abandoned these positions and argued instead that the first two steps of the expired NEMSA
contract constitute an agreed-upon interim grievance procedure.
Citing Alan Ritchey, Id. at slip op. at 9, fn. 20, the General Counsel argues that the parties
must specifically negotiate an interim procedure “that would permit the employer to act first
followed by a grievance and, potentially, arbitration. . . .” Although the General Counsel
acknowledges that the parties agreed to honor the first two steps of the expired NEMSA contract
grievance procedure, counsel asserts that this two-step process cannot constitute an agreed-upon
interim grievance process because it was not negotiated by the parties. Rather, the NEMSA
contract was negotiated with Respondent by a predecessor union. Further, the General Counsel
argues that because no arbitration component is included, the two-step process does not satisfy
Alan Ritchey.
As to the General Counsel’s first argument, I find that the Union and Respondent did in
fact negotiate agreement to abide by the first two steps of the grievance procedure in the expired
NEMSA contract. Bonifay offered adherence to the first two steps of the grievance procedure but
not to arbitration, the third step. Misner accepted this offer. Their agreement to honor the
grievance procedure in the first two steps of the expired NEMSA contract was negotiated
between the Union and Respondent. A meeting of the minds occurred8 and an agreed-upon

8 While the technical rules of contract law are not necessarily controlling in labor relations
negotiations, the normal rules of offer and acceptance in contract law are applicable to determine whether
an agreement was reached. Kasser Distiller Products, 307 NLRB 899, 903 (1992), enfd 19 F.3d 644 (3rd
Cir. 1994).
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interim grievance procedure was in place and was utilized by the parties.9
Regarding the General Counsel’s second argument, I find that Alan Ritchey does not
mandate arbitration as a component of an interim grievance procedure. In Alan Ritchey, it was
unnecessary for the Board to determine the contours of an interim grievance procedure. Unlike
the instant situation in which the parties were bound to provisions of an expired agreement, there
was no agreement of any kind in place in Alan Ritchey. Moreover, the Board did not apply its
holding to the facts in Alan Ritchey because application was prospective only. Nevertheless,
throughout its decision, the Board referred to use of an interim grievance procedure. In its first
statement regarding an interim grievance procedure, the Board did not include a reference to
arbitration:
The question [of whether an employer whose employees are represented by a
union must bargain with the union before imposing discretionary discipline on a
unit employee] will usually arise only during the period after the union has
become the employees’ bargaining representative, but before the parties have
agreed upon a first contract, and only if the parties have not agreed upon an
interim grievance procedure. (Slip op. at 1, emphasis added.)
The second reference to an interim grievance procedure utilizes grievance-arbitration as
an example but does not mandate arbitration as a component of an interim grievance procedure:
We now conclude that it [the established doctrine that an employer must bargain
with the union over exercise of discretion regarding terms and conditions of
employment] does [apply to unilateral discipline of individual employees], and
that an employer must provide its employees’ bargaining representative notice
and the opportunity to bargain with it in good faith before exercising its discretion
to impose certain discipline on individual employees, absent a binding
agreement with the union providing for a process, such as a grievance-
arbitration system, to resolve such disputes. (Slip op. at 2, emphasis added.)
The third comment regarding an interim grievance procedure is, in my view, ambiguous,
at least in the context of the facts in this case:
An employer seeking a safe harbor regarding its duty to bargain before imposing
discipline may negotiate with the union an interim grievance procedure that
would permit the employer to act first followed by a grievance and,
potentially, arbitration as is typical in most complete collective-bargaining
agreements. (Slip opinion at 9, fn. 20, emphasis added).
The sentence refers to negotiation of an interim grievance procedure of “grievance and,
potentially, arbitration.” As applied here, the sentence might be construed to mean that a safe

9 Moreover, even had Misner not stated that he understood, in agreement with Bonifay’s assertion
that there would be no arbitration, the Union’s conduct manifested an intention to be bound consistent
with the offer and is sufficient to constitute acceptance. See, e.g., Capitol-Husting Co. v. NLRB, 671 F.2d
237, 243 (7th Cir. 1982).
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harbor is provided by an interim grievance procedure which might potentially contain an
arbitration provision. Alternatively, it could mean that a safe harbor is provided by an interim
grievance procedure like those contained in most complete collective-bargaining agreements
which give the Union an option to potentially exercise discretion to request arbitration. However,
even if the second reading of this sentence is correct, it falls short of mandating arbitration.
Surely if the Board intended to mandate arbitration as a part of an interim grievance
procedure, its decision would have clearly provided such guidance. Thus, in disagreement with
the General Counsel, I find that Alan Ritchey does not specifically require that an interim
grievance procedure contain an arbitration component. Further, I find that the two-step process
agreed upon by the parties constitutes an interim grievance procedure in compliance with Alan
Ritchey. Thus, Respondent did not violate Section 8(a)(5) and (1) of the Act by failure to provide
notice and an opportunity to engage in preimposition bargaining about the discharge of 12
employees
V. WEINGARTEN RIGHTS – DISCHARGE OF LISA WILSON
Facts
The General Counsel alleges that on March 29, 2013, Respondent violated Section
8(a)(1) of the Act by denying the request of paramedic Lisa Wilson (Wilson) to be represented
by the Union at an interview which she reasonably believed could result in disciplinary action
against her. Both Respondent and the Union supported strong training programs regarding an
employee’s right to representation at an investigatory interview. In July 2012, the Union
conducted a Weingarten campaign in which it passed out Weingarten cards summarizing their
rights. The cards state,
Weingarten Rights – Request for a Steward
If you are called into a meeting with a management representative and you have
reason to believe that disciplinary action against you may result, you have the
right to have a steward present during this meeting. Read the statement below to
the management representative, and contact your steward immediately.
“If this discussion could in any way lead to my being disciplined or terminated, or
affect my personal working conditions, I request that my union representative,
officer or steward be present at the meeting. Without representation, I choose not
to answer any questions. This is my right under a U.S. Supreme Court decision
called Weingarten.”
In addition to the cards, the Union also orally advised employees, telling them “if they
feel that they’re going to be disciplined or brought into a meeting that they should give the shop
steward a call and make sure that one of us is present.” Chief Shop Steward Vanier specifically
recalled advising Wilson of her rights in July 2012 and as an ongoing topic at subsequent
meetings.
Similarly, Administrator Bonifay, a former Union representative, trained management in
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Weingarten rights and procedures and authored a company policy incorporating Weingarten
rights. Bonifay also modified discipline forms to include an acknowledgment of waiver of
Weingarten rights after a July 2013 incident in which an employee initially requested a union
representative and then changed his mind when the meeting was reconvened in order for
attendance of a union representative.
Wilson began working for Respondent in November 2007 as an EMT. She became a
paramedic in February 2011. She was working two 24-hour shifts, one on Fridays and one on
Sundays.
Quality Assurance Supervisor Brian Meader (Meader) runs daily random audits of calls
from the previous day to ensure compliance with protocols and policies. For instance Meader
sometimes monitors all calls for a heart attack, known as a STEMI (ST elevation myocardial
infarction) call. His audit involves going through each call with the STEMI code to ensure
compliance with protocols and policies. According to Meader, the protocols are not only
company policies but they are mandated by Solono County Emergency Medical Services and
must be followed without exception. On March 29, 2013,10 his random STEMI audit revealed
that on March 24, Wilson failed to “trauma activate a patient that clearly met activation criteria.”
After making this discovery on March 29, Meader encountered Wilson later that day and
called her into a meeting. He told Wilson that he needed to discuss a call. She followed Meader
to a meeting room.
Wilson had received a prior quality assurance warning letter on January 21 and knew the
drill. As she passed Paramedic Supervisor Roger Aikman, she asked him if she needed to turn in
her narcotics keys, which is Respondent’s policy when employees are sent home. He shrugged
and did not join the meeting. According to Wilson, Administrator Bonifay and James Pierson
(Pierson), Vice President of Operations, were present in the meeting room. Meader testified that
only he, Wilson, and Pierson were present in the room. Meader did not recall Bonifay coming
into the meeting. Bonifay denied, or alternatively, did not recall that he was at this meeting.
As to who was present in the room, I credit Wilson. Such a meeting is a more singular
event for an employee and, accordingly, Wilson likely retained an accurate recollection of who
was present. Meader could not recall that Bonifay was present. Pierson did not testify. For the
same reason, I also credit Wilson’s recollection of what was said at the meeting. Meader was a
straight forward, articulate witness with an excellent understanding of quality assurance policies
and procedures. However, Meader admitted that he has conducted 40-50 quality assurance
meetings and his recollection of this specific meeting was very vague, according to him. For
these reasons, I specifically discredit his testimony regarding what was said at the meeting.
According to Wilson, when she entered the room she said she would like a union
representative if this was a disciplinary meeting. Pierson responded, according to Wilson, stating
that no investigation was going to be conducted at the meeting. The investigation had already
occurred. Meader testified that at no time during the meeting did Wilson request a union
representative. Meader further testified that he was familiar with employee Weingarten rights

10 All further dates are in 2013 unless otherwise referenced.
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through company training on the subject. Pierson did not testify and Bonifay testified that he was
not present. I credit Wilson and find that she requested a union representative and was told by
Pierson that she did not need one because the investigation had already occurred. In making this
credibility resolution, I draw an adverse inference in Respondent’s failure to call Pierson as a
witness.11
The following factual statement is based on Wilson’s credited testimony. Meader handed
Wilson a quality assurance discipline. It stated that Wilson had failed to follow a trauma
algorithm and as result, she would be placed on a six-month full quality assurance audit to ensure
that she followed all protocols and she would be required to take four hours of remedial training.
The quality assurance discipline concluded that due to Wilson’s quality assurance history, the
matter would be forwarded to administration for further action.
After reading the document, although she was not asked to explain her actions, Wilson
told Respondent’s management why she had deviated from the standard trauma algorithm in this
particular instance. Wilson testified, “I read the report and then responded to the statements in
the letter. . . I explained my reasoning for transporting the patient to the location that I chose.”
When asked, “Did any manager ask you questions about that decision?” Wilson responded that
Pierson and Meader told her the patient should have been transported to a trauma center. In other
words, they did not question her. Discussion ensued regarding whether independent thinking or
blindly following the rules was called for. Wilson initiated this stating that she, “believed that
they would all be happy if I followed the chart on the trauma protocol rather than independently
thinking.” According to Wilson, Bonifay agreed. Wilson was told that she must adhere to the
protocols. Meader also told her that she would receive additional communication from
administration after the meeting.
Although no evidence of questioning of Wilson was adduced on direct examination, on
cross-examination, Wilson testified that Pierson asked her a question:
Q During the course of that meeting what do you recall Mr. Pierson saying to
you?
A I recall him asking me why I chose to transport the patient to the facility
that I chose. I recall him again making the statement regarding that I in my
infinite wisdom don't need to make independent decisions regarding transport of
trauma patients. And I recall him sending me back to shift as I stated previously.
Q Anything else that he said?
A That he was done with me and to go back to work.
Q Have you told me everything you can recall Mr. Pierson said during the
course of the meeting?
A The only other statement that I think I left out was that he made a
comment that I wasn't getting it on the trauma calls. Nothing other than that.
Based on Wilson’s demeanor, I credit her testimony on direct. On direct examination,
Wilson appeared to be living and breathing the conversation as if she were literally reliving it.

11 See, e.g., Parksite Group, 354 NLRB 801, 804 (2009) (judge did not abuse discretion in drawing adverse
inference to failure of respondent to call its manager who evaluated alleged discriminatees for rehire).
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She testified sequentially to each statement made during the meeting. On cross-examination, she
was asked about what a particular participant in the meeting said, that is, she was asked to make
a piecemeal analysis of the conversation. It was at this point that she testified that Pierson asked
why she transported the patient to a particular facility. There was no follow-up regarding
Wilson’s statement on cross-examination that she recalled Pierson asking why she chose to
transport the patient to a particular facility.
On direct examination, Wilson testified that she explained transport immediately after
reading the disciplinary letter which states, “Therefore this patient should have been taken to the
closest appropriate trauma hospital.” Wilson was a strong, assertive witness. Her demeanor was
more consistent with explaining to management why this particular trauma patient did not fit the
trauma algorithm and why transport to a different facility was thus warranted. Indeed, given
Wilson’s forthright demeanor during direct testimony, her rendition of the conversation indicates
that it would have been difficult for management to propound a question to her after she read the
quality assurance disciplinary letter and began her explanation of her actions. Thus, I specifically
discredit Wilson’s testimony on cross-examination that Pierson asked her a question.
After the meeting, Meader, Pierson, and Bonifay met. The purpose of their meeting was
to assess Wilson’s overall disciplinary situation after she had received the quality assurance
discipline referred to above. They determined that given Wilson’s two prior quality assurance
offenses as well as the new quality assurance offense, there were adequate grounds to justify
termination. However, they decided to give Wilson a “last chance” instead of termination.
By email following the meeting, Bonifay advised Wilson that her failure to follow trauma
criteria on this and two prior occasions was unacceptable. The email reiterated the six-month full
audit and the four hours of remedial training which had already been set out in the quality
assurance letter that Wilson was given in the meeting and advised that her multiple failures to
follow trauma protocol were unacceptable. The email concluded,
However, in lieu of immediate termination for repeated protocol violations, we
are hereby advising you that this is your final opportunity to be compliant with
protocol in all aspects of your duties as a paramedic.
To be clear: You are hereby notified that you must follow all protocols and
company standards in the future. Your failure to comply with the above
requirements or failure to follow appropriate protocols and/or company standards
will result in the termination of your employment with Medic Ambulance.
Analysis
Weingarten, supra, holds that an employee’s request for a union representative at an
investigatory interview which the employee reasonably believes may result in disciplinary action
is protected activity. However when the purpose of a meeting is merely informative, that is to
announce discipline which has already been determined, there is no right to union representation.
Baton Rouge Water Works Co., 246 NLRB 995, 997 (1979)(no right to the presence of union
representative at a meeting held solely for the purpose of informing the employee of, and acting
upon, a previously made disciplinary decision).
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In Baton Rouge Water Works, id., the Board reasoned that if an “employer has reached a
final, binding decision to impose certain discipline prior to the interview based on facts and
evidence obtained prior to the interview,” there is no right to a Weingarten representative.
[I]f the employer engages in any conduct beyond merely informing the employee of a previously
made disciplinary decision, the full panoply of protections accorded the employee under
Weingarten may be applicable. Thus, for example, were the employer to inform the employee of a
disciplinary action and then seek facts or evidence in support of that action, or to attempt to have the
employee admit his alleged wrongdoing or to sign a statement to that effect, or to sign statements
relating to such matters as workmen's compensation, such conduct would remove the meeting from
the narrow holding of the instant case, and the employee's right to union representation would
attach. In contrast, the fact that the employer and employee thereafter engaged in a conversation at
the employee's behest or instigation concerning the reasons for the previously determined discipline
will not, alone, convert the meeting to an interview at which the Weingarten protections apply.
[Footnote omitted.]
Id. See also Success Village Apartments, 347 NLRB 1065, 1071 (2006) (Weingarten not
violated where purpose of meeting was to impose discipline previously decided upon);
Brunswick Electric Corp., 308 NLRB 361, 399-400 (1992), enfd. mem. 991 F.2d 790 (4th Cir.
1993) (meeting conducted only for reading and award of discipline does not give rise to
Weingarten right).
On March 29, after being told by Meader that he wanted to discuss a call with her,
Wilson asked for a union representative. I find that Wilson reasonably believed the disciplinary
action might be taken at the time she made the request. Vice President Pierson, who joined
Meader and Wilson in the conference room, denied her request telling her that no investigation
was going to be conducted.
Thus, according to Pierson, the stated purpose of the meeting was merely informative. In
fact, Respondent did not deviate from the stated purpose. Wilson was given her third quality
assurance discipline for failure to follow proper protocol. According to Wilson, she was asked no
questions during this meeting. However, she argued with Meader and Pierson about the efficacy
of blindly following rules versus thinking for oneself. After the meeting, Wilson received an
email giving her a “last chance” instead of termination.
The General Counsel argues that the purpose of the meeting was not just to inform
Wilson but to ascertain further information about the incident. Further, the General Counsel
asserts that because the last chance agreement followed on the heels of the meeting, Respondent
had not made a final determination at the time of the interview.
In disagreement, I find that Respondent did not stray beyond its stated informational
purpose for the meeting. Respondent did not question Wilson about the incident. Rather, Wilson
voluntarily defended herself after reading the quality assurance discipline. Further, there is no
evidence that the meeting was used as an underpinning for the email which followed giving
Wilson a “last chance.” Rather, the email merely reiterated the predetermined discipline set out
in the previously discussed quality assurance disciplinary letter. It warned Wilson that any
further failures to follow protocol would result in her termination. Thus, the record establishes
that the investigation was completed, the decision was made to issue a quality assurance
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discipline, and the disciplinary notice was prepared prior to the meeting. Respondent did not
explicitly or implicitly seek further information during the meeting.
Accordingly, I find that Respondent did not violated Section 8(a)(1) of the Act by
refusing Wilson’s request for union representation at a meeting she reasonably believed might
result in disciplinary action because the purpose of the meeting was informational and the
meeting was in fact conducted as informational only.
VI. AMENDMENT OF COMPLAINT AT HEARING
The original complaint alleged a single Alan Ritchey violation based on the underlying
unfair labor practice charge in Case 20-CA-111325: “On or about April 4, 2013, [Respondent]
terminated Lisa Wilson from employment . . . without affording notice or a meaningful
opportunity to bargain with [the Union].” On the second day of hearing, the General Counsel
moved to add 11 further Alan Ritchey discharge allegations based upon records made available
by Respondent on the previous evening. I allowed the amendment of the complaint and further
afforded Respondent a one-week recess in order to prepare its defense to the new allegations.
Paragraph 8 of the complaint, as amended at the hearing to add the 11 new Alan Ritchey
discharge allegations, avers as follows:
a) About April 4, 2013, Respondent, by Tim Bonifay, at its Vallejo, California facility,
discharged Lisa Wilson from employment.
b) About June 19, 2013, Respondent, by Tim Bonifay, at its Vallejo, California facility,
discharged Ryan Birch from employment.
c) About July 8, 2013, Respondent, by Tim Bonifay, at its Vallejo, California facility,
discharged Dustin Brumfeld from employment.
d) About March 26, 2013, Respondent, by Tim Bonifay, at its Vallejo, California facility,
discharged Katrina Burton from employment.
e) About August 14, 2013, Respondent, by Tim Bonifay, at its Vallejo, California facility,
discharged Luz Daniels from employment.
f) About September 17, 2013, Respondent, by Tim Bonifay, at its Vallejo, California
facility, discharged Andrew Dorris from employment.
g) About December 2, 2013, Respondent, by Tim Bonifay, at its Vallejo, California facility,
discharged Cal Jones from employment.
h) About October 18, 2013, Respondent, by Tim Bonifay, at its Vallejo, California facility,
discharged Aaron Schreieck from employment.
i) About July 31, 2013, Respondent, by Tim Bonifay, at its Vallejo, California facility,
discharged Brandon Whitney from employment.
j) About April 8, 2013, Respondent, by Tim Bonifay, at its Vallejo, California facility,
discharged Jen Wright from employment.
k) About October 9, 2013, Respondent, by Tim Bonifay, at its Vallejo, California facility,
discharged Remy Jordan from employment.12
l) About August 22, 2013, Respondent, by Tim Bonifay, at its Vallejo, California facility,
discharged Erick Angulo from employment.

12 At Remy Jordan’s request, his discharge was converted to a resignation.
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Paragraph 9 follows paragraph 8, alleging that the discharges were a mandatory subject
of bargaining and that Respondent failed to afford the Union prior notice and an opportunity to
bargain regarding imposition of the discipline. The Union was notified of these discharges at the
time they occurred and did not file unfair labor practice charges regarding lack of notice and
opportunity to bargain. The discharges of Jones, Schreieck, and Jordan are within six months of
the date of the amendment. The others fall outside the six-month 10(b) period.13
Even though eight of the allegations were not the subject of a timely filed unfair labor
practice charge, I nevertheless find that the amendments were warranted because these
allegations are “closely related” to the timely filed unfair labor practice charge in Case 20-CA-
111325. In Redd-I, Inc., 290 NLRB 1115, 1116 (1988), the Board held that time-barred
allegations may be litigated if they are “closely related” to allegations in the original, timely-filed
charge. To determine whether the time-barred allegations satisfy the “closely related” test, three
factors are considered: (1) whether the otherwise untimely allegations involve the same legal
theory as the allegations in the timely charge, (2) whether the otherwise untimely allegations
arise from the same factual situation or sequence of events as the allegations in the timely
charge, and (3) whether a respondent would raise the same or similar defenses to both the timely
and the untimely allegations.
It is clear that the new allegations contained in subparagraphs 8(b)-(l) are closely related
to the timely filed charge in Case 20-CA-111325. The same individual, Bonifay, allegedly
engaged in identical sequential activity to the activity set out in the charge. The legal theory is
identical and Respondent raises the same defenses to all of these allegations. The allegations
constitute a series of discharges over a period of 9 months. Thus I find that the allegations
contained in subparagraphs 8(b)-(l) are closely related to the original timely filed charged.
Additionally, Respondent argues that the Union is estopped from pursuing unfair labor
practice charges regarding employees Daniels, Dorris, Jones, Schreieck, Jordan, and Angulo
because the Union received postimplementation notice of these discharges but did not pursue
grievances for these employees.14 Respondent claims that the interim grievance procedure
constitutes the Union’s sole remedy. Just as the grievance procedure provides safe haven for
failure to give preimposition notice, Respondent argues it also estops the Union from seeking to
impose substantial backpay obligations for these employees because Respondent has relied to its
detriment on the Union’s selective use of the interim two-step grievance procedure.
However, Respondent’s equitable estoppel argument conflates different principles. Just
cause is the foundation for determining whether an employee seeks to file a grievance and
whether a union determines to process the grievance. On the other hand, the determination of

13 Sec. 10(b) of the Act, 29 U.S.C. §160(b), provides that “no complaint shall issue based upon any
unfair labor practice occurring more than six months prior to the filing of the charge with the Board and
the service of a copy thereof upon the person against whom such charge is made.”
14 The record reflects that the Union received postimplementation copies of the termination letters for
six individuals who were subjects of the amendments. Three of the six were discharged were within six
months of the date of the amendment to the complaint.
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whether a union is owed notice and an opportunity to bargain depends upon the collective-
bargaining relationship, whether there is an interim procedure for dispute resolution, and whether
discretion is utilized in determining the disciplinary action. These issues are analyzed pursuant to
Alan Ritchey. Finally, determination of whether a grievance process offers the sole remedy for
discharge is analyzed through deferral principles. In the end, equitable estoppel does not
preclude a union which has an interim grievance procedure from filing an unfair labor practice
charge regarding the duty to bargain.
Finally, citing Stagehands Referral Service, LLC, 347 NLRB 1167, 1171 (2006), enfd
after remand, 315 Fed.Appx. 318 (4th Cir. 2009), Respondent argues that it was unjust to allow
amendment of the complaint due to lack of a valid excuse for delay. Stagehands incorporates
Board Rule 102.17 which provides that the judge may allow amendment of the complaint at
hearing “upon such terms as may be deemed just.” In Cab Associates, 340 NLRB 1391, 1397
(2003), relied upon in Stagehands, the Board determined that three factors should be evaluated to
determine whether amendment is just: (1) whether there was surprise or lack of notice; (2)
whether the General Counsel offered a valid excuse for its delay in moving to amend, and (3)
whether the matter was fully litigated.
Indeed, there was surprise and lack of notice. Initially, I ruled that the amendment would
not be allowed. One and one-half days of litigation had already taken place and not a word had
been mentioned regarding potential amendment to add 11 additional discharges to the complaint.
All parties assumed that only one discharge was at issue.
However, on further consideration, I reversed my ruling because in my view the General
Counsel offered a valid excuse for delay in seeking to amend. The General Counsel stated that it
had no knowledge of the 11 additional discharges until Respondent provided the discharge
documents the evening before the amendment was offered. There is no reason to doubt this
assertion and, indeed, Respondent does not dispute it. Rather, for its part, Respondent claimed
that it had not previously believed the discharge documents were subpoenaed because the
subpoena used the term “discipline,” not “discharge.”15 On further consideration, Respondent
determined it should produce the documents even though the documents were for “discharge.”
Thus, on reconsideration I found the General Counsel’s excuse valid and the delay due, in
large part, to Respondent’s failure to produce the documents in a timely manner. Thereafter, the
parties were given a week to prepare for litigation of the 11 additional discharges. The matter
was thereafter fully litigated. I further note that administrative resources were conserved in
litigation of the 11 additional discharges along with the one discharge originally at issue.
Respondent claims that the Union knew of some of these discharges shortly after they
occurred and could have brought them to the General Counsel’s attention during the thorough
investigation of the unfair labor practice charge. Thus, Respondent asserts there could be no
surprise or valid excuse for delay in adding the 11 additional discharges to the complaint. There
is no evidence, however, that any other discharges came to light during the investigation of the
unfair labor practice charge and, thus, I find on balance that it was just to allow amendment of
the complaint.

15 The subpoena requested documents reflecting all discipline issued to employees since January 1, 2012.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:16
The complaint is dismissed.
Dated, Washington, D.C. June 10

16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order, as provided in Sec. 102.48 of the Rules, shall be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
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ORDER
, 2014
____________________
Mary Miller Cracraft
Administrative Law Judge
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