Metro-West Ambulance Service, Inc.

National Labor Relations Board - Board Decisions

May 30, 2014

360 N.L.R.B. 1029 (N.L.R.B. 2014)

METRO-WEST AMBULANCE SERVICES 1029
360 NLRB No. 124
Metro-West Ambulance Services, Inc. and Teamsters
Joint Council #37, International Brotherhood of
Teamsters and Teamsters Local #223, Interna-
tional Brotherhood of Teamsters.1 Cases 36–
CA–010801, 36–CA–010802, 36–CA–010835, 36–
CA–010893, 19–CA–067859, 19–CA–069371, and
19–CA–076875
May 30, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER
On November 9, 2012, Administrative Law Judge El-
eanor Laws issued the attached decision. The Respond-
ent filed exceptions and a brief in support, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed cross-
exceptions and a brief in support, and the Respondent
filed an answering brief.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge's rulings, findings,2 and conclusions, to
amend the remedy,3 and to adopt the recommended Or-
der as modified and set forth in full below.4

1 We correct the judge’s inadvertent omission of Charging Party
Teamsters Local #223, International Brotherhood of Teamsters from
the case caption.
2 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 judge’s findings.
There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) of the Act by engaging in unlawful surveillance;
enforcing its “Employee Associations” policy to prohibit employees
from wearing union pins; promulgating, maintaining, and enforcing a
rule prohibiting employees from remaining on its property after the end
of their shifts; coercively interrogating an employee; and threatening an
employee about his future prospects with the company due to his sup-
port for the Union.
We correct the judge’s inadvertent dismissal of complaint par. 10(c),
which the General Counsel withdrew at the hearing.
3 We amend the judge’s remedy to require the Respondent to make
employee Travis Schlegel whole for any loss of earnings and other
benefits caused by his unlawful discharge in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), and for any loss of earnings and
other benefits caused by his unlawful demotion and 1-day suspension in
accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
4 We will modify the judge’s Conclusions of Law and recommend-
ed Order to remedy the violations found and in accordance with the
Board’s standard remedial language. We will order the Respondent to
compensate employee Schlegel for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and to file a report with
the Social Security Administration allocating Schlegel’s backpay award
The Respondent provides emergency ground ambu-
lance services in Washington County, Oregon, and non-
emergency ambulance transport throughout the Pacific
Northwest. This case chiefly involves several adverse
actions that the Respondent took against Field Training
Officer and Senior Paramedic Travis Schlegel, the lead-
ing union adherent at the Respondent’s Hillsboro, Ore-
gon facility. We adopt the judge’s excepted-to unfair
labor practice findings and dismissals for the reasons she
stated, with the following clarifications.5
1. In adopting the judge’s finding that the Respondent
violated Section 8(a)(4), (3), and (1) of the Act by ex-
tending Schlegel’s unlawfully issued CAP on March 7,
2011,6 we agree with the judge that the General Counsel
met his initial burden under Wright Line, supra, and that
the Respondent did not show that it would have taken the
same action absent Schlegel’s protected union activities.7
The Respondent’s several unexcepted-to violations of
Section 8(a)(1) (see supra fn. 2) reflect strong antiunion
animus. In finding that this animus motivated the issu-

to the appropriate calendar quarters. We will substitute a new notice to
conform to the Order as modified and with Durham School Services,
360 NLRB 694 (2014).
5 In adopting the judge’s analyses under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), we do not rely on the Respondent’s general opposition to
unionization.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) of the Act by suspending, demoting, and issuing a cor-
rective action plan (CAP) to Schlegel in October 2010, we find it un-
necessary to pass on the judge’s findings concerning Schlegel’s Octo-
ber 11, 2010 emails. The judge did not rely on those emails to find the
suspension, demotion, and CAP unlawful, and neither do we.
In finding the October 2010 discipline unlawful, we do not rely on
the judge’s finding that Schlegel was engaged in protected concerted
activity. The judge also found that the Respondent would not have
initiated any action against him but for Schlegel’s comment to his su-
pervisor, “Geeze Kevin, are they trying to get a union out here?” We
find that the Respondent thought Schlegel was involved with the union,
although he was not involved at that time. Because of the Respond-
ent’s mistaken belief, its suspension, demotion, and issuance of a CAP
to Schlegel are unlawful. See Handicabs, Inc., 318 NLRB 890, 897
(1995), enfd. 95 F.3d 681 (8th Cir. 1996); Metropolitan Orthopedic
Assn., 237 NLRB 427, 427 fn. 3 (1978) (“discharge of 4 employees . . .
because of Respondent's belief, albeit mistaken, that the[y] had engaged
in protected concerted activities is an unfair labor practice. . . .”).
Member Schiffer agrees with the judge’s finding that Schlegel was
engaged in protected, concerted activity, including union activity, in
late October 2010, and that this conduct provoked the Respondent’s
unlawful disciplinary action against him.
In finding that the Respondent unlawfully issued Schlegel and em-
ployee Randy Watkins corrective action memoranda (CAM) for park-
ing too far from their assigned posts in August 2011, we correct the
judge’s inadvertent failure to find that Schlegel’s discipline violated
Sec. 8(a)(4) of the Act in addition to Sec. 8(a)(3) and (1).
6 Subsequent dates are in 2011, unless noted otherwise.
7 We find it unnecessary to rely on the judge’s finding that the Re-
spondent’s investigation into the January 24 patient complaint was
inadequate.
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ance of the March 7 CAP, we emphasize that there was a
delay in excess of 1 month between the January 24 pa-
tient complaint about Schlegel and the March 7 disci-
pline that the complaint purportedly triggered, and the
judge discredited Supervisor Kevin Riensche’s explana-
tion for that delay.8 In the interim, Schlegel engaged in
prounion activities, including posting prounion flyers on
his locker and picketing the Respondent’s facility; the
Union filed its first charge on Schlegel’s behalf; and
Schlegel revealed that he was the creator of a prounion
Facebook page, of which the Respondent’s managers and
supervisors were aware. The discipline was issued soon
thereafter.9 Accordingly, we find that the Respondent’s
decision to extend Schlegel’s CAP occurred because
Schlegel engaged in prounion activity and the Union
filed charges.10
2. We adopt the judge’s conclusion that the Respond-
ent violated Section 8(a)(3), (4), and (1) of the Act by
putting Schlegel on a performance improvement plan
(PIP) in July.11 The record supports an inference that

8 The judge expressed uncertainty about the date of the patient com-
plaint. The Respondent’s witness who took the complaint testified that
it was January 24.
9 In addition to the cases cited by the judge, we rely on Stevens
Creek Chrysler Jeep Dodge, 357 NLRB 633, 637 (2011) (where em-
ployer took no action against employee with performance deficiencies
until after learning of his union activity, the Board rejected as pretextu-
al the employer’s claim that it had decided to terminate him prior to
learning of that activity), enfd. sub nom. Mathew Enterprise, Inc. v.
NLRB, 498 Fed. Appx. 45 (D.C. Cir. 2012).
10 The facts underlying the January 24 complaint itself are not dis-
puted. Schlegel and his partner Lai Wah Chan responded to a 911 call
from a patient who they determined may have been near death but who
initially refused ambulance transport due to the cost. In accordance
with established protocol, Schlegel and Chan spoke frankly with the
patient about the risks of refusing transport, including the risk of death;
and hearing this, the patient’s mother and son began to cry. Chan cred-
ibly testified that she and Schlegel handled the situation in accordance
with their training and how other paramedics handle similar situations,
and that Schlegel’s tone was professional. We note that Chan and
Schlegel appear to have followed the Metro Regional EMS Consortium
protocols, which apply to the Respondent’s operations in Washington
County and are part of the record in this case, for handling a patient
with decisionmaking capacity who refuses needed treatment and/or
transport. The protocols include enlisting family members “to help
convince” the patient and informing the patient of the risks and conse-
quences of refusing transport. They also direct the rapid transport of
patients with sub-90 systolic blood pressure. (The patient here had a
systolic blood pressure of 70.)
11 Member Johnson does not find the issuance of the PIP to be un-
lawful. The PIP was issued to Schlegel mainly because, while driving
the ambulance, he struck a curb at 40 miles per hour, jarring the patient
“very hard” and causing the patient to come up off the gurney, which
resulted in a complaint and claim of injury by the patient. While the
PIP also mentions Schlegel’s involvement in two other patient mishaps
in less than a year, Member Johnson would find that the striking-the-
curb incident itself justified the PIP and that it would have been issued
to Schlegel even in the absence of his union activity.
Schlegel’s PIP was motivated by animus against Schle-
gel’s union activities and the unfair labor practice charg-
es filed on his behalf, so the burden shifted to the Re-
spondent under Wright Line, supra, to prove that Schle-
gel would have been placed on a PIP in the absence of
the charges and of Schlegel’s union activities. The Re-
spondent contends that it issued the PIP because, over the
course of a year, Schlegel was involved in three patient-
related mishaps, including one in April in which Schlegel
struck a curb at 40 miles per hour while transporting a
patient (by Schlegel’s own account, the patient was jos-
tled hard). Although these incidents might legitimately
warrant a PIP, the Respondent’s burden is to show that it
would have issued the July PIP even in the absence of
Schlegel’s union activity.12 The judge explained in
painstaking detail the basis of her finding that the Re-
spondent did not sustain this burden. For example, sev-
eral incidents were not the subject of contemporaneous
discipline when they occurred; another employee in-
volved in one incident was not disciplined at all; and the
record supports the judge’s finding that numerous de-
scriptions and explanations provided by the Respondent
were false or exaggerated. We are persuaded by the
judge’s careful and thorough analysis, and we draw an
adverse inference from the Respondent’s failure to pro-
duce accident reports for the period January 1, 2009, to
the date of the hearing, which the General Counsel sub-
poenaed to obtain evidence about the Respondent’s
treatment of similarly situated employees. In the circum-
stances presented here, the record fails to establish that
the Respondent treated Schlegel in the same manner as
other employees who engaged in comparable miscon-
duct, and the records subpoenaed by the General Counsel
directly related to potential instances where similarly
situated employees were treated more leniently. In
agreement with the General Counsel’s exception, we find
that an adverse inference is warranted that these docu-
ments, had they been produced, would be adverse to the
Respondent’s position.13

12 See, e.g., Igramo Enterprise, 351 NLRB 1337, 1340 (2007), rev.
denied 310 Fed. Appx. 452 (2d Cir. 2009).
13 The only accident report that the Respondent produced is the one
that Schlegel submitted after the curb strike. The hearing transcript
shows that on the last day of the hearing, the Respondent indicated to
counsel for the General Counsel that there may have been more acci-
dent reports, but they were not “easily available” and it would take
more than a few days to produce them. Although the General Counsel
did not ask that the record be left open beyond the last day of the hear-
ing, the Respondent does not explain or otherwise address its failure to
produce the reports. It does not claim, for example, that there are no
such reports, that they are immaterial, or that producing them would be
unduly burdensome.
In her decision, the judge acknowledged that an adverse inference
may have been warranted, but she found it unnecessary to draw it. We
METRO-WEST AMBULANCE SERVICES 1031
3. We agree with the judge, for the reasons she states,
that the Respondent lawfully suspended Schlegel in Oc-
tober 2011, and issued a CAM to junior paramedic Brent
Warburg for their failure to notify dispatch of their lunch
stop and, subsequently, their delay in notifying dispatch
of their arrival at a hospital to pick up a patient. The
delay at the hospital resulted from Schlegel engaging in a
conversation in the hospital parking area. His suspension
is consistent with the only other comparable delay in the
record, when the Respondent suspended a senior and
junior paramedic for taking a 33-minute detour on a
drive back from southern Oregon without notifying dis-
patch. Indeed, in that situation, unlike here, there is no
evidence that a patient or hospital was kept waiting.
Although Warburg received lesser discipline than
Schlegel, we disagree with the General Counsel that this
shows unlawful disparate treatment of Schlegel. As the
senior paramedic, Schlegel was responsible for the op-
eration of the ambulance. Although the Respondent im-
posed the same discipline on the junior and senior para-
medics who engaged in the 33-minute detour, the Re-
spondent has imposed heavier discipline on senior para-
medics than on junior paramedics when they have en-
gaged in misconduct together. Thus, when a senior par-
amedic directed a junior paramedic to drive at an unsafe
speed after a patient went into a crisis, the Respondent
discharged the senior paramedic, but the junior paramed-
ic was issued a CAP. Moreover, in the incident before
us, it was Schlegel who further delayed the patient
pickup by talking to his friend. Thus, we find that
Schlegel’s October 2011 suspension did not constitute an
unfair labor practice.14

draw such an inference because the subpoenaed documents would be
plainly relevant to evaluating the Respondent’s claim that it treated
Schlegel as it treated other employees in similar situations, and an
adverse inference is warranted based on the Respondent’s unexcused
failure to produce them. See McAllister Towing & Transportation Co.,
341 NLRB 394, 396 (2004) (adverse inference is permissible sanction
to deal with subpoena noncompliance), enfd. 156 Fed. Appx. 386 (2d
Cir. 2005); Auto Workers v. NLRB, 459 F.2d 1329, 1343 (D.C. Cir.
1972) (absent a valid reason for bypassing the adverse inference rule,
“the inference should actually be drawn and its impact evaluated”).
Member Johnson finds that the General Counsel has failed to show
the judge abused discretion by failing to draw an adverse inference in
the circumstances of this case. See, e.g., Tom Rice Buick, 334 NLRB
785, 786 (2001) (“the decision to draw an adverse inference lies within
the sound discretion of the trier of fact”).
14 Schlegel’s October 2011 infraction was one of the reasons the Re-
spondent cited for discharging Schlegel, and we have found that his
suspension for this incident did not constitute an unfair labor practice.
However, the Respondent admitted that it fired Schlegel for multiple
incidents, including the other disciplinary actions that were unlawful.
We agree with the judge that the October 2011 incident would not have
resulted in Schlegel’s termination, and that Schlegel’s discharge violat-
ed Sec. 8(a)(3), (4), and (1) of the Act.
AMENDED CONCLUSIONS OF LAW
Replace the judge's Conclusions of Law 2, 4, and 5
with the following paragraphs.
“2. Teamsters Joint Council #37, International Broth-
erhood of Teamsters, and Teamsters Local #223, Interna-
tional Brotherhood of Teamsters, are labor organizations
within the meaning of Section 2(5) of the Act.”
“4. The Respondent violated Section 8(a)(3) and (1)
of the Act by disciplining, suspending, and demoting
employee Travis Schlegel in October 2010, and by disci-
plining employee Randy Watkins in August 2011, as set
forth herein.”
“5. The Respondent violated Section 8(a)(3), (4), and
(1) of the Act by disciplining employee Travis Schlegel
in March, July, and August 2011, and by discharging him
in October 2011 as set forth herein.”
ORDER
The Respondent, Metro-West Ambulance Services,
Inc., Hillsboro, Oregon, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Enforcing policy 701 concerning employee asso-
ciations to prohibit employees from wearing pins or other
insignia signifying support for a union.
(b) Engaging in surveillance of employees engaged in
union activities or engaging in surveillance to discover
employees’ union or other protected, concerted activities.
(c) Promulgating and maintaining a rule against em-
ployees loitering or remaining on its property when not
scheduled to work to discourage employees from form-
ing, joining, or assisting the Union or engaging in other
protected, concerted activities.
(d) Selectively and disparately enforcing a rule against
employees loitering or remaining on its property when

Members Miscimarra and Johnson join in the finding that Schlegel’s
employment termination violated the Act. The record supports the
judge’s finding that some prior discipline of Schlegel resulted from
antiunion animus, Schlegel’s employment termination resulted in part
from this other discipline, and the Respondent did not sustain its de-
fense burden under Wright Line. As to the latter point, however, Mem-
bers Miscimarra and Johnson note that Schlegel’s documented past
performance deficiencies could reasonably warrant employment termi-
nation. For example, Schlegel cut a patient’s elbow while operating a
gurney, he struck a curb at 40 miles per hour while transporting a pa-
tient, and he was the senior paramedic when the safety latch on a gur-
ney failed to catch, causing a patient’s head to strike the mattress when
the gurney dropped 12 inches. These are legitimate reasons for dis-
charging an employee. However, if the General Counsel satisfies his
initial burden under Wright Line, the employer must persuade by a
preponderance of the evidence that it would have taken the same action
even in the absence of the employee’s protected activities. E.g., Roure
Bertrand Dupont, Inc., 271 NLRB 443, 443 (1984). In the instant case,
the Respondent has failed to establish that Schlegel’s performance
deficiencies, standing alone, would have resulted in his discharge.
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not scheduled to work by applying it only against em-
ployees engaging in union activities.
(e) Coercively interrogating employees about union
activities.
(f) Threatening employees with adverse consequences
for engaging in union activities.
(g) Issuing corrective action memoranda, corrective
action plans, or performance improvement plans to em-
ployees, or suspending or otherwise disciplining employ-
ees for engaging in union or other protected, concerted
activities or because unfair labor practice charges are
filed on their behalf.
(h) Demoting employees for engaging in union or oth-
er protected, concerted activities.
(i) Discharging employees for engaging in union or
other protected, concerted activities or because unfair
labor practice charges are filed on their behalf.
(j) 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) Rescind the rule prohibiting employees from loiter-
ing or remaining on the Respondent’s property when
they are not scheduled to work.
(b) Within 14 days from the date of this Order, rescind
employee Travis Schlegel’s October 27, 2010 suspen-
sion; his October 29, 2010 corrective action plan and
demotion; the March 7, 2011 extension of his corrective
action plan; his July 11, 2011 performance improvement
plan; his August 8, 2011 corrective action memorandum;
and employee Randy Watkins’s August 8, 2011 correc-
tive action memorandum.
(c) Within 14 days from the date of this Order, offer
Travis Schlegel full reinstatement to his field training
officer position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
(d) Make Travis Schlegel whole for any loss of earn-
ings and other benefits suffered as a result of his demo-
tion, his October 27, 2010 1-day suspension, and his dis-
charge in the manner set forth in the remedy section of
the judge’s decision as amended in this decision.
(e) Compensate Travis Schlegel for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters.
(f) Within 14 days from the date of this Order, remove
from its files the coaching memoranda issued to employ-
ees Travis Schlegel, Trish Preston, and Peter Haslett, and
any other references to the unlawful prohibition against
wearing union pins, and within 3 days thereafter notify
Schlegel, Preston, and Haslett in writing that this has
been done and that the coaching memoranda will not be
used against them in any way.
(g) Within 14 days from the date of this Order, remove
from its files all references to the suspension of Travis
Schlegel on October 27, 2010; the issuance of a correc-
tive action plan to Travis Schlegel on October 29, 2010;
the demotion of Travis Schlegel from his field training
officer position on October 29, 2010; the extension of
Travis Schlegel’s corrective action plan on March 7,
2011; the issuance of a performance improvement plan to
Travis Schlegel on July 11, 2011; the issuance of a cor-
rective action memorandum to Travis Schlegel on Au-
gust 8, 2011; the discharge of Travis Schlegel on October
27, 2011; and the issuance of a corrective action memo-
randum to Randy Watkins on August 8, 2011. Within 3
days thereafter, notify Travis Schlegel and Randy Wat-
kins in writing that this has been done and that these ac-
tions will not be used against them in any way.
(h) 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.
(i) Within 14 days after service by the Region, post at
its Hillsboro, Oregon facility copies of the attached no-
tice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical 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 Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone

15 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.”
METRO-WEST AMBULANCE SERVICES 1033
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 em-
ployees and former employees employed by the Re-
spondent at any time since October 27, 2010.
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 19 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.
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 vio-
lated 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.
WE WILL NOT enforce policy 701 concerning employee
associations to prohibit you from wearing pins or other
insignia signifying support for a union.
WE WILL NOT engage in surveillance of you when you
are engaged in union activities or to discover your union
or other protected, concerted activities.
WE WILL NOT promulgate and maintain a rule against
your loitering or remaining on our property when not
scheduled to work to discourage you from forming, join-
ing, or assisting the Union or engaging in other protect-
ed, concerted activities.
WE WILL NOT selectively and disparately enforce a rule
against your loitering or remaining on our property when
not scheduled to work by applying it only against em-
ployees engaging in union activities.
WE WILL NOT coercively interrogate you about union
activities.
WE WILL NOT threaten you with adverse consequences
for engaging in union activities.
WE WILL NOT issue corrective action memoranda, cor-
rective action plans, or performance improvement plans
to you, or suspend or otherwise discipline you for engag-
ing in union or other protected, concerted activities or
because unfair labor practice charges are filed on your
behalf.
WE WILL NOT demote you for engaging in union or
other protected, concerted activities.
WE WILL NOT discharge you for engaging in union or
other protected, concerted activities or because unfair
labor practice charges are filed on your behalf.
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 rescind the rule prohibiting employees from
“loitering” or remaining on our property when they are
not scheduled to work.
WE WILL, within 14 days from the date of the Board’s
Order, rescind Travis Schlegel’s October 27, 2010 sus-
pension; his October 29, 2010 corrective action plan and
demotion; the March 7, 2011 extension of his corrective
action plan; his July 11, 2011 performance improvement
plan; his August 8, 2011 corrective action memorandum;
and employee Randy Watkins’s August 8, 2011 correc-
tive action memorandum.
WE WILL, within 14 days from the date of the Board’s
Order, offer Travis Schlegel full reinstatement to his
field training officer position or, if that position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges
previously enjoyed.
WE WILL make Travis Schlegel whole for any loss of
earnings and other benefits suffered as a result of his
October 27, 2011 discharge, less any net interim earn-
ings, plus interest.
WE WILL make Travis Schlegel whole, with interest,
for any loss of earnings and other benefits suffered as a
result of his October 27, 2010 1-day suspension and his
October 29, 2010 demotion from his field training officer
position.
WE WILL compensate Travis Schlegel for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file a report with the Social Se-
curity Administration allocating his backpay award to the
appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files the coaching memoranda
issued to employees Travis Schlegel, Trish Preston, and
Peter Haslett and any other references to the unlawful
prohibition against wearing union pins, and WE WILL,
within 3 days thereafter, notify Schlegel, Preston, and
Haslett in writing that this has been done and that the
warnings will not be used against them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all references to the suspen-
sion of Travis Schlegel on October 27, 2010; the issu-
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ance of a corrective action plan to Schlegel on October
29, 2010; the demotion of Schlegel from his field train-
ing officer position on October 29, 2010; the extension of
Schlegel’s corrective action plan on March 7, 2011; the
issuance of a performance improvement plan to Schlegel
on July 11, 2011; the issuance of a corrective action
memorandum to Schlegel on August 8, 2011; the dis-
charge of Mr. Schlegel on October 27, 2011; and the
issuance of a corrective action memorandum to Randy
Watkins on August 8, 2011; and WE WILL, within 3 days
thereafter, notify Travis Schlegel and Randy Watkins in
writing that this has been done and that these actions will
not be used against them in any way.
METRO-WEST AMBULANCE SERVICES, INC.
The Board’s decision can be found at
www.nlrb.gov/case/36–CA–010801 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273–1940.
Rachel Harvey, Esq., for the General Counsel.
Jennifer A. Sabovik, Esq., for the Respondent.
Mark MacPherson, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Portland, Oregon, on June 5–13, 2012. The Internation-
al Brotherhood of Teamsters, Joint Council No. 37 (the Union,
Teamsters. or Local 223), filed numerous charges and amended
charges in the above-captioned cases on various dates between
February 23, 2011, and March 19, 2012. The Acting General
Counsel issued the fifth consolidated complaint on May 17,
2012. The Respondent filed a timely response denying all ma-
terial allegations. At the hearing, the Acting General Counsel
withdrew complaint paragraphs 7(a) and (b) and 9. (Tr. 810.).1

1 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for the Respondent’s exhibit; “GC Exh.” for Acting
General Counsel’s exhibit; “GC Br.” for the Acting General Counsel’s
brief; and “R. Br.” for the Respondent’s brief. Although I have includ-
ed several citations to the record to highlight particular testimony or
exhibits, I emphasize that my findings and conclusions are based not
The complaint alleges that the Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) by: main-
taining and enforcing a rule prohibiting employees from wear-
ing association pins; engaging in unlawful surveillance; prom-
ulgating, maintaining, and enforcing a rule prohibiting employ-
ees from loitering or remaining on the Respondent’s property
when not scheduled to work; and unlawfully interrogating an
employee. The complaint alleges that the Respondent violated
Section 8(a)(1) and (3) of the Act by: suspending, demoting,
and issuing a corrective action plan to employee Travis Schle-
gel; issuing a corrective action memorandum to employee
Randy Watkins; and issuing a corrective action memorandum
to employee Brent Warberg. Finally, the complaint alleges that
the Respondent violated Section 8(a)(1), (3), and (4) of the Act
by extending employee Travis Schlegel’s corrective action plan
(CAP); issuing him a performance improvement plan and cor-
rective action memorandum; and terminating him.
On the entire record, including my observation of the wit-
nesses’ demeanor, and after considering the Acting General
Counsel and the Respondent’s briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Oregon corporation, with a place of
business in Hillsboro, Oregon, provides emergency ground
ambulance services in Washington County, and nonemergency
ambulance transport services throughout the Pacific Northwest.
During the past 12 months and at all material times it derived
gross revenues in excess of $500,000 and purchased and re-
ceived goods valued in excess of $50,000 directly from points
outside the State of Oregon. The Respondent admits, and I find,
that the Respondent is engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act. I further find, and it
is uncontested, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. FACTS
A. Background and the Respondent’s Operations
The Respondent provides medical transportation in the
greater Portland, Oregon area. More specifically, the Respond-
ent provides emergency ground ambulance services in Wash-
ington County, and nonemergency ambulance transport ser-
vices throughout the Pacific Northwest. (Tr. 482–483.) The
Respondent also provides standby service, which is medical
coverage for large special events such as Trailblazer games,
concerts, and the like. In addition, it utilizes accessible vans to
transport customers with restricted mobility. (Tr. 483.)
The Respondent has roughly 300 employees, including par-
amedics, emergency medical technicians (EMTs), vehicle ser-
vice technicians (VSTs), mechanics, office personnel, and su-
pervisors. (Tr. 46, 483.) Paramedics work in the ambulance
department (sometimes referred to as “operations”) which pro-
vides both emergency and nonemergency ambulance transport.
(Tr. 482.) EMTs, who have less training than paramedics,

solely on the evidence specifically cited, but rather are based on my
review and consideration of the entire record.
METRO-WEST AMBULANCE SERVICES 1035
work in the wheelchair department. (Tr. 482, 484.) VSTs, who
also work in the wheelchair department, maintain the Respond-
ent’s vehicles by washing, fueling, and restocking them. (Tr.
608.) The Respondent’s other organizational components in-
clude the business office, communications center (sometimes
referred to as the dispatch center), fleet maintenance, infor-
mation technology, and administration. (Tr. 483–484.)
Paramedics work in teams. Generally a senior paramedic is
paired with either a junior paramedic or an EMT. The senior
paramedic is responsible for the overall operations of the ambu-
lance and for supervising the junior paramedic or EMT. (Tr. 27,
529–530; GC Exh. 11.) Selected senior paramedics also serve
as field training officers (FTOs). FTOs train new employees on
company policies, operation of the ambulance, interactions with
coworkers, report writing, and ensure they have adequate par-
amedic skills.2 FTOs serve a very important leadership role,
and are charged with, inter alia, mentoring new employees and
helping to create a good working environment for them. (Tr.
49, 188, 488, 573–574, 739–740; GC Exh. 12.) Trainees pair
with different FTOs, with each pairing lasting around 2 months.
(Tr. 744.) FTOs evaluate junior paramedics for every shift they
work using the Respondent’s Observation Report and Evalua-
tion Guidelines (the Guidelines). (Tr. 743; R. Exh. 1.) The
Guidelines provide a 1-to-5 rating system, with 5 being the
highest score, in various competencies. (Tr. 189–197; R. Exh.
1.) Once completed, the FTO gives the evaluations to the train-
ing director. (Tr. 743–744, 759–760.) FTOs are held to the
highest standard for their own performance. (Tr. 577.)
Paramedics report to the ambulance department supervisors.
During the time period relevant to this complaint, the ambu-
lance department supervisors included Kevin Riensche, Gregg
James, Jan Lee, and Jeff Mathia. (Tr. 51, 862.) FTOs report to
the training director, who was Jan Lee until around June 2010,
when Sheri Snyder assumed the position. (Tr. 51, 735.) The
training director and ambulance supervisors report to the ambu-
lance department manager, who at all relevant times was David
Weeks (Tr. 51, 932). EMTs, who operate the wheelchair vans
to transport wheelchair-bound customers, report to the wheel-
chair department supervisors, who in turn report to the wheel-
chair department manager, Brian Fairbanks. The department
managers, including Weeks and Fairbanks, report to the vice
president of operations, Larry Boxman. (Tr. 52.) Boxman re-
ports to J. D. Fuiten, the Respondent’s owner. (Tr. 482.)
The Respondent’s headquarters facility is on Dawson Creek
Drive in Hillsboro, Oregon, and is often referred to as “Dawson
Creek” or “the Creek.” (Tr. 46.) The headquarters building
contains supervisors’ and managers’ offices. It also houses a
crew room with restrooms, lockers, vending machines, a show-
er, two computers, chairs, and a couch for the staff. The crew
room is adjacent to the supply room. The door at the back of
the crew room leads to the ambulance bay. (Tr. 432, 468–470;
R. Exh. 6.) The Respondent’s facility has a few different park-
ing lots. On the south side of the building, there is a parking lot
used mainly for administration and visitors, referred to herein

2 A separate category of employee, referred to as a preceptor, trains
students solely on the clinical component of the paramedic field. (Tr.
488.)
as the admin lot. (Tr. 406.) There are three parking lots in the
back of the building, referred to herein as the front, middle, and
back lots. The Respondent owns the front lot, but leases the
middle and back lots. (Tr. 598.) The front parking lot houses a
large fuel tank to service the Respondent’s vehicles. (Tr. 470;
R. Exh. 6.) A mechanic’s shop is located behind the fuel tank.
(Tr. 472; R. Exh. 6.) Wheelchair vans park in the back and
middle parking lots. (Tr. 454, 461.) In-service ambulances park
in a separate side lot. If there is an overflow, ambulances occa-
sionally park in one of the back parking lots. (Tr. 609–611.)
The Respondent’s contract with Washington County requires
them to be on time for emergency calls 90 percent of the time.
For the majority of the county, this translates to 8 minutes and
30 seconds. (Tr. 550; R. Exhs. 7, 12.) To help meet this goal,
paramedics and EMTs in the field are assigned to “posts”
where they park and wait for calls. There are 20 posts strategi-
cally located to meet demand, some of which change regularly
to accommodate traffic patterns and evolving need. (Tr. 551–
553.) Crews posting in the field also respond to nonemergency
calls. The response times for these calls vary depending on the
individual contract. When posts change, the Respondent noti-
fies employees by email and pager. The posts are technically
intersections. According to Boxman and Snyder, crews may
park within .2 miles of the intersection. (Tr. 554–557, 746; R.
Exh. 7.) Crews are not permitted to post farther than .2 miles
from the assigned post because that could negatively impact
response times, resulting in a higher likelihood a patient will
die. (Tr. 569.) Snyder trained the FTOs to post within .2 miles
of the designated intersection in order to ensure appropriate
response times. (Tr. 746–747.)
The Respondent uses a computer aided dispatch (CAD) sys-
tem that color codes ambulances to determine their availability.
Green means the ambulance is available and is either at post or
en route to post. Yellow means the ambulance has been as-
signed to a call but the crewmembers are not actively involved
with it yet. Red means the ambulance is out of service. When
a crew arrives at a post, they notify dispatch. (Tr. 566–567.)
When a call for service comes in, the CAD records the time the
Respondent receives the call, the time the ambulance is dis-
patched, the time the ambulance goes on route, the time it ar-
rives at the caller’s destination, the time it clears the caller’s
destination and proceeds to the hospital, the time it arrives at
the hospital, and the time it clears the hospital and is dispatched
to a post or another assignment.3 The paramedics and EMTs
are expected to call and notify dispatch when each of these
events occurs. In addition, they are to contact dispatch if they
need supplies, the ambulance has mechanical failures, or if they
want to take a break to use the restroom or get something to eat.
(Tr. 748–749.)
Dispatch determines which ambulance to send to an emer-
gency call by looking at the Respondent’s automatic vehicle
location (AVL) system which shows, in basic terms, where the
ambulances are, whether or not they are available, and any
traffic impediments. (Tr. 558–560.) Response times for emer-

3 The CAD also includes other data such as the patient’s condition
and location. (Tr. 665.)
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gency calls will sometimes be adjusted for unforeseen traffic
delays. For nonemergency calls, estimated time of arrival may
also be similarly adjusted if there is traffic or if the crew calls in
and requests a break for food. (Tr. 562–563.) If an available
vehicle is posted, the dispatchers determine which ambulance
to send to nonemergency calls by looking at the posting plan in
the CAD system. (Tr. 565.) The AVL system is not used to
confirm placement of an ambulance after the crew notified
dispatch that they have arrived at their assigned post. (Tr. 567–
568.)
For every emergency call, the State of Oregon requires par-
amedics to complete an emergency medical services (EMS)
report describing the transport or the patient’s refusal of
transport. (Tr. 513.) The attending paramedic fills out the
EMS report, which is an electric form. Once filled out, the
form is electronically sent to the Respondent’s server and,
where relevant, to the hospital where the patient was transport-
ed. Both crewmembers are expected to review the report. (Tr.
534–535, 537–538.) The Respondent also uses internal inci-
dent reports, sometimes referred to as communications reports,
for employees to report anything unusual that may have oc-
curred on a transport or a refusal. (Tr. 513–514.) In addition,
employees are expected to notify the supervisor and the attend-
ing physician when they arrive at the hospital of any unusual
occurrences. (Tr. 536.)
B. Beginning of the Union Campaign
Mark MacPherson was the lead organizer for Local 223’s
campaign to organize Metro-West employees. (Tr. 35.) He first
met with Metro-West employees on July 28, 2010. (Tr. 36.)
MacPherson talked to former employees to determine who
would be a persuasive union advocate, and although he was not
at the July 28 meeting, Travis Schlegel’s name came up from
the beginning. (Tr. 37.)
C. The Respondent Begins Just Culture Progam
As Metro-West grew, Boxman noticed some problems, in-
cluding a communications gap between management and em-
ployees. (Tr. 491–492.) His response was to implement a
program called Just Culture and a High Reliability Organiza-
tion (Just Culture). Boxman learned about Just Culture from
Paul LeSage, who implemented it successfully as the assistant
chief at Tualatin Valley Fire and Rescue. (Tr. 490.) Boxman
and LeSage met in July 2010 to discuss Just Culture. Boxman
learned that LeSage was planning to retire and start a consult-
ing business implementing Just Culture at different organiza-
tions. LeSage retired in September 2010, and he and Boxman
began designing the implementation process for Just Culture at
Metro-West in October. (Tr. 493.) Training for supervisors
began in October. (Tr. 494.)
Just Culture changed the way the Respondent implements
discipline. Before, Metro-West utilized a traditional progres-
sive discipline system. Under Just Culture, actions that can
lead to discipline are considered either behavior-based or per-
formance-based. As Boxman explained, an employee who is
having trouble initiating an intravenous (I.V.) line has a per-
formance problem, but an employee who gets in an accident
while texting has made a behavioral choice. If the infraction is
the result of a behavioral choice rather than a performance defi-
ciency or systemic problem, employees are provided with cor-
rective actions to enable them to address the problem and learn
from it. Minor incidents result in corrective actions memoran-
da (CAM), and if not addressed can progress to a corrective
action plan (CAP). A more serious infraction may result in a
CAP in the first instance. Performance deficiencies, which
pertain to skill as opposed to behavior, result in a coaching
memorandum for minor problems. More serious or repetitive
problems are addressed through a performance improvement
plan (PIP). Failure to follow either a CAP or a PIP can result in
termination. (Tr. 501–510; R. Exhs. 7, 8.)
Under Just Culture, when an event occurs, the parties in-
volved perform a “root cause analysis.” This involves getting
the parties together to break down the details of the event to
identify why it may have occurred, and helps the Respondent
determine whether human errors or systems errors need to be
addressed. (Tr. 496, 785–786.)
Schlegel worked for Metro-West from October 1997 until
his termination on October 27, 2011. (Tr. 44.) He started as a
junior paramedic. After about 4–5 years he was promoted to
senior paramedic. In 2009, Schlegel became an FTO. (Tr. 46–
49.)
Several years ago, two patients complained about Schlegel,
but he was not disciplined. (Tr. 120–123.) On May 21, 2009,
Schlegel filled out a communications report to advise his su-
pervisor about a negative interaction with a member of the
public. Schlegel and his partner had stopped to ask an appar-
ently homeless man who was rubbing his belly and pointing at
the ambulance if he needed assistance. The man responded
something to the effect of, “It’s not healthy being so damned
fat.” Schlegel replied, “Fuck you.” After he cooled down, he
informed his partner that he had used bad judgment, apologized
for his overreaction, and promised it would not happen again.
Schlegel was not disciplined for this incident. (R. Exh. 25, pp.
1–2.)
On June 8, 2010, Schlegel filled out an incident report stat-
ing that while raising the gurney, he had scraped a patient’s
elbow. He dressed the wound and placed a bandaid on it, and
informed the family of the incident. (Tr. 148; GC Exh. 32.) He
also submitted an incident report to his supervisor. (Tr. 885.)
There is no record evidence of a complaint regarding this inci-
dent, and Schlegel was not disciplined for it.
Paramedics complete paperwork after their shifts. On Octo-
ber 8, 2010, Weeks sent an email to Schlegel, copied to
Schneider, stating that Metro-West allows 30 minutes to com-
plete a chart, and that Schlegel was compensated 60 minutes for
two charts he completed. On October 11, Schlegel responded
that he would adhere to this rule and close the charts after 30
minutes. He requested a copy of a time adjustment form and
asked if he had worked more than an hour but had only been
compensated for an hour. (GC Exh. 15.) On October 9, James
sent out an email forwarding a 5-page operations update news-
letter to the employees. The second page reminds employees of
the importance of checking their emails. The pertinent part of
the message starts out by stating, “Unfortunately, if you don’t
check your email you won’t see this, but your supervisors are
METRO-WEST AMBULANCE SERVICES 1037
reminding everyone of the importance of logging in and read-
ing email regularly.” Schlegel sent a response to James on
October 11, suggesting that a central board where bulletins
could be posted “would be nice” and asking where on the time
adjustment form employees should indicate the time spent read-
ing emails. (R. Exh. 3; Tr. 210–211.) In Schlegel’s view,
checking emails could be time consuming, and he was asking
where to adjust his time because employees often checked
emails off the clock. (Tr. 211.) Snyder recalled speaking to
Schlegel about this email, but could not recall the exact date.
She told him that the supervisors perceived it as being a smart
aleck. Schlegel said he would apologize to the supervisors. (Tr.
756–758.)
Schlegel received a letter of counseling on October 13, 2010,
for excessive tardiness. Specifically, he was late five times
within a 90-day period. Per the employee handbook in effect at
the time, excessive tardiness was defined as three episodes of
tardiness in a 90-day period. The counseling warned that fur-
ther infractions of the excessive tardiness policy would result in
a letter of reprimand.4 (GC Exh. 16; Tr. 73.)
Snyder, who had been a personal friend of Schlegel for over
12 years, noticed a change in his behavior starting in the spring
of 2010. He had told her that he was going through a divorce,
had filed for bankruptcy, and his girlfriend was pregnant. (Tr.
765–768.)
1. The bariatric gurney and Schlegel’s October
2010 discipline
The Respondent’s paramedics utilize two types of stretchers
or gurneys: standard and bariatric. The bariatric gurney is wider
than the standard gurney, and is designed to carry more weight.
(Tr. 53.) Seventeen of the standard gurneys are powered with a
hydraulic system that lifts and lowers the patient, and some are
unpowered.5 (Tr. 54, 544.) There is one bariatric gurney, and it
is unpowered. (Tr. 54.)
According to Schlegel, when paramedics were dispatched to
a call where the patient would require the bariatric gurney, they
would traditionally complete the transport and then return it
back to Dawson Creek and retrieve the standard gurney. (Tr.
55.) Schlegel believed that it was not safe to use the bariatric
gurney on a normal-sized patient because of its larger size and
the inability to strap a patient in as securely. (Tr. 55–56.) Other
employees also complained about routine use of the bariatric
gurney, both because of the perceived safety issue for the pa-
tient, and because it is heavier and harder for the employee to

4 The provision from the employee manual that was submitted at the
hearing defines habitual tardiness as being late more than two times in a
180-day period. This provision was effective November 1, 2010, and
the provision that was in effect at the time of the letter of counseling
and the subsequent CAP discussed below is not in evidence. (GC Exh.
7, pp. 5–6.)
5 There is clearly a misunderstanding in the testimony at pp. 542–
543. The Respondent’s counsel asked whether Metro-West has any
hydraulic or powered bariatric gurneys, to which Boxman responded,
“Yes, we have seventeen powered gurneys.” Boxman and other wit-
nesses, however, testified that there is only one bariatric gurney. His
response therefore makes no sense, and I infer and find he was referring
to regular gurneys.
manipulate. (Tr. 56, 544–545.) Boxman recalled that employees
voiced concerns to the supervisors about using the bariatric
gurney. (Tr. 664–665.) Riensche was also aware that employ-
ees did not like using the bariatric gurney and noted confusion
among the crews and supervisors about when it should be used.
(R. Exh. 28.)
On October 25, 2010, Schlegel was working with Trevor Ol-
sen, a junior paramedic trainee. (Tr. 56, 316–317.) At around
noon, they were dispatched to transport a bariatric patient. After
they completed the transport, they were advised to go to a post
and wait for a 9-1-1 call. Schlegel advised dispatch that he had
the bariatric stretcher, and asked to return it and swap it out for
a standard gurney. Dispatch told Schlegel to go ahead and post
with the bariatric gurney. (Tr. 57, 342.) Schlegel called the on-
duty supervisor, Melissa Zimmer, who likewise told him to go
ahead and post even though he had the bariatric gurney. (Tr. 57,
318, 343.) Schlegel informed Olsen that Zimmer had told him,
“That’s the way we are doing it and that’s the way we’ve been
doing it.” Schlegel and Olsen used the bariatric gurney for the
calls they received that afternoon, even though the patients did
not require it. (Tr. 58.) They picked up a 60–65-year-old wom-
an who weighed around 100–110 pounds.6 (Tr. 319.) Olsen
saw Schlegel pushing the woman back to the center of the
stretcher when they arrived at the hospital, and Schlegel stated
that this was why they shouldn’t use bariatric stretchers for
regular sized patients. (Tr. 320.) When Schlegel returned to
headquarters at the end of his shift, he talked to Supervisor
Gregg James.7 Schlegel told James he was a little upset be-
cause he had to use the bariatric stretcher, and James agreed
that the paramedics are not supposed to post for 9-1-1 calls with
it. Schlegel asked James to speak with Zimmer about the issue,
and James said that he would. (Tr. 58–59.)
Olsen agreed that using the bariatric stretcher for a regular
sized patient posed a risk to the patient, for which the crew
could ultimately be held responsible. (Tr. 321, 344.) Olsen
also believed the bariatric stretchers posed a lifting hazard for
the paramedics because they must manually lift very heavy
patients. (Tr. 354.) Boxman disagreed that the bariatric
stretcher is harder to lift, noting it has the additional equipment
of ramps and a winch. (Tr. 544.) Boxman believes the bari-
atric stretcher is safe for all patients, and the paramedics are
trained on how to make sure the patient is secure if the straps
are not tight enough. According to Boxman, reviews by Occu-
pational Safety and Health Administration (OSHA) and the
Commission of Accreditation of Ambulance Services (CAAS)
have approved use of the bariatric stretcher for all patients. (Tr.
540–542.)
On October 27, 2010, Schlegel worked with Olsen again.
When they were checking the ambulance before leaving that
morning, Schlegel asked Riensche about the policy regarding
posting for 9-1-1 calls with the bariatric stretcher. Riensche

6 Olsen’s testimony is that this occurred on October 27, but it is
clear from later testimony, his affidavit, and other witness testimony
that the date was October 25. Schlegel never made it out to the field on
October 27.
7 James does not work for the Respondent anymore and did not tes-
tify. (Tr. 817.)
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
said he would find out, and when he returned he informed
Schlegel and Olsen that they were supposed to post with the
bariatric stretcher. (Tr. 60, 867–868.) Schlegel replied, “Geeze
Kevin, are they trying to get a union out here?” or words to that
effect. (Tr. 60, 868.) At the time, Schlegel had heard nothing
more than rumors about a campaign to organize Metro-West’s
employees. (Tr. 61.) Schlegel described his tone of voice as,
“Almost jokingly. Very low key,” and agreed the remark was
somewhat sarcastic. (Tr. 61, 204.) Olsen described Schlegel’s
tone of voice as “normal” and did not perceive Schlegel as
sounding angry or disrespectful. (Tr. 325.) Riensche described
Schlegel’s tone as “annoyed.” (Tr. 868.) As Riensche started to
leave, Schlegel stated, “Love ya” or “love you buddy.” (Tr.
201, 325, 868.) Olsen perceived the comment as “pretty jok-
ing.” (Tr. 325.) The Respondent argues in its brief that Schle-
gel made a “finger gun” at Riensche but this is unsupported.
Riensche testified Schlegel did a “finger pointing” and that he
felt Schlegel was being flippant and unprofessional in front of
his trainee. (Tr. 869.)
Shortly after this exchange, Riensche spoke with Snyder
about it.8 (Tr. 750, 870.) Riensche conveyed that he believed
Schlegel’s comment was unprofessional in front of a trainee.
Snyder and Riensche talked with Weeks about the interaction,
and Snyder opined that she did not believe Schlegel acted pro-
fessionally. (Tr. 751–752.) Weeks perceived Schlegel as clear-
ly upset and not in the frame of mind to train people. Weeks
and Snyder decided to suspend Schlegel for the day. (Tr. 62,
208, 934–935.) They talked about Schlegel’s recent discipli-
nary action for tardiness and identified that this was not the first
time he showed a disrespectful attitude. (Tr. 935.) Snyder
testified that she found his behavior that day was “alarming”
and stated the “accumulation of all of it was just alarming to
me.” She referred back to incidents involving a wrinkled uni-
form 6 to 8 weeks prior, a letter of counseling for tardiness, an
email perceived as sarcastic, not showing up for the prior two
FTO meetings, and not filling out observation reports correctly.
(Tr. 754–761.)
Snyder and Weeks instructed dispatch to tell Schlegel to re-
turn to Dawson Creek. (Tr. 752, 871.) When Schlegel received
the call, he and Olsen speculated that he was in trouble for say-
ing the “U” word. Riensche and Weeks led Schlegel into
Snyder’s office Riensche told Schlegel he thought his comment
was unprofessional. According to Schlegel, Weeks, whom
Schlegel perceived as agitated, stated, “You need to consider
your next words very carefully.” Schlegel made a comment
about the Respondent’s ability to purchase wood paneling for a
remodel but not the proper size stretchers. Schlegel was then
told of his suspension. (Tr. 62, 933–934.)
Schlegel returned on October 28 and worked his shift. As he
was leaving, Snyder advised him to meet with her and Weeks
the following day. Though he was not scheduled to work,
Schlegel met with Weeks and Snyder on October 29. (Tr. 52,
763, 935–936.) According to Schlegel, upon inquiry regarding
what he said that was wrong, Weeks responded, “union. You

8 Snyder recalled the date as October 26 (Tr. 750), but this was
clearly incorrect.
said union”; and Snyder responded, “Yeah, Trav, why would
you say that knowing the history of unionization at Metro
West?” (Tr. 65.) Weeks denied making any such comment, and
stated he told Schlegel it was not what he said, but the manner
in which he said it. (Tr. 937.) Snyder recalled saying some-
thing like, “Travis, why did you say that? You know how they
feel around here about that.” Snyder stated it was no secret that
most FTOs and long-term employees know that the Respondent
does not feel a union would be a good fit with the Company,
and she recounted an attempt to organize years ago. (Tr. 769–
770.) Olsen, a new employee, had heard from coworkers and
Supervisor Lee that Metro-West was antiunion. (Tr. 352.)
Snyder told Schlegel that because of his behaviors, she
thought he should step down as FTO. According to Snyder,
Schlegel became very angry, stated they were messing with his
livelihood three times, screaming in her face. Snyder left the
room and returned after a few minutes. (Tr. 764.) Weeks re-
called that Snyder became upset with some comments made to
her about her not supporting him, but he did not specifically
recall the comments. (Tr. 937.) Weeks concluded the meeting
by telling Schlegel he would be put on a corrective action plan
(CAP).
The CAP, dated November 8 and signed by Weeks and
Schlegel November 11, 2010, referenced the “derogatory com-
ments” Schlegel made to Riensche on October 27, as well as
the previous writeup for excessive tardiness and the October 11
email regarding charting.9 (Tr. 52, 65; GC Exh. 13.) The CAP
also instructed Schlegel to attend the employee assistance pro-
gram (EAP), and to check in with his supervisor twice a month
to receive feedback on his progress. Schlegel signed the CAP
on November 11, 2010. In the section for employee in-
put/rebuttal Schlegel wrote, “I agree that regardless of the na-
ture of the comments, the time and manner in which they were
stated could have been handled more professional and will do
so in the future.” Schlegel made this comment because he
feared for his job. (Tr. 66–67; GC Exh. 13.) In the section for
describing the performance concerns, Weeks wrote that Schle-
gel had been exhibiting a series of behaviors that have led to an
unprofessional interaction with a supervisor, and gave as exam-
ples excessive tardiness and increasing irritation with his work
environment. (GC Exh. 14; Tr. 938.) Schlegel did not receive a
copy of the CAP until March 7, 2011. (Tr. 98–99, 118;
GC Exh. 13.)
Schlegel was demoted from his FTO position, and reverted
back to senior paramedic status. Weeks was Schlegel’s interim

9 Riensche testified that he included the Schlegel’s email regarding
an operations update about the Respondent’s requirement that employ-
ees check their email, because it was referenced in the CAP. (Tr. 783;
R. Exhs. 3, 25, p. 3.) (I note that R. Exh. 25, p. 3 is an incomplete
duplicate of R. Exh. 3.) Weeks agreed this was the email the CAP
addressed. (Tr. 941.) The CAP, however, references an email regard-
ing charting, and R. Exh. 3 does not address charting. GC Exh. 15 is in
fact an email Schlegel sent about charting on the same day, October 11.
According to Weeks, the email about charting was not specifically
addressed in the CAP, but was another example of the behavior Schle-
gel was exhibiting. (Tr. 942.) The Respondent’s brief asserts that the
CAP addresses both emails, but the plain language of the CAP shows
this to be inaccurate. (GC Exh. 13.)
METRO-WEST AMBULANCE SERVICES 1039
supervisor for a couple of weeks, after which time Schlegel
reported to Riensche. (Tr. 52, 865.) Riensche asked Schlegel if
he would have any problems having him as a supervisor given
his involvement with the incident that ultimately led to Schle-
gel’s demotion, and Schlegel replied that he would not. (Tr. 75,
86.)
2. Schlegel’s early involvement with the Union
The Union represents paramedics who work for American
Medical Response (AMR), one of Metro-West’s competitors.
After his suspension and demotion, Schlegel called a friend
from AMR, who in turn put him in touch with Frank Hilte-
brand, an AMR paramedic and representative of Local 223. (Tr.
76.) Schlegel and Hiltebrand spoke on October 29, 2010.
Schlegel attended a union organizing meeting on November 23,
and was active in the organizing campaign from that point for-
ward. (Tr. 77.) He set up a Facebook page in January 2011,
under the name MWA Medicguy, to provide a forum for em-
ployees to discuss the Union, and he spoke to employees at
work and after work.10 (Tr. 77–78; GC Exh. 18.) At first,
Schlegel did not identify himself on the Facebook page, but he
revealed his identity on February 25, 2011. (Tr. 82; GC Exhs.
22, 18, p. 127.) Boxman learned of the Facebook page from
employees, but could not recall when. (Tr. 660–661.)
Riensche testified that the Facebook page was common
knowledge. (Tr. 924.) It is clear from the testimony of several
witnesses that Schlegel was the employee most active in trying
to organize the Respondent’s facility on behalf of the Union.
(Tr. 260, 281, 328, 360–361, 405.)
D. Introduction of Just Culture to Employees
On December 10, 2010, Boxman sent a letter to employees
that set forth the challenges Metro-West had faced in recent
years and the resultant “disconnect” between management and
front-line employees. To bridge the gap, Boxman stated it was
adopting the principles of Just Culture. He attached infor-
mation about Just Culture, which stresses learning, openness
and fairness, safe systems, and risk management, from a “bot-
tom-up, top down” approach.11 (Tr. 490–492; GC Exh. 8.)
The Respondent began holding “Just Culture” meetings in Jan-
uary 2011. (Tr. 355, 493; R. Exh. 8.) After one such meeting,
paramedic Olsen told Lee he was concerned about what would
happen to his job if the employees were represented by a union,
and Lee responded, “If the union comes in, you probably might
not even have a job.” (Tr. 352–353.)
E. Schlegel’s Discipline and Union Activity January
to April 2011
Boxman became aware of the Union’s attempts to organize
in early January 2011. (Tr. 527.) Around that same time,
Schlegel and Boxman had a conversation about Schlegel’s
demotion. At Boxman’s invitation, Schlegel agreed to attend a

10 Danyel Fosdick (Dani), a coworker, ran a Facebook page called
Medicgal, which was an antiunion counterpoint to the Medicguy site.
(Tr. 87.)
11 The transcript erroneously recorded the word “top” as “to.”
supervisor’s meeting to address his concerns about it.12 The
supervisors meet each Tuesday, and as part of Just Culture,
these meeting were opened up to employees. (Tr. 94, 621–
622.) On January 18, Schlegel attended the meeting with Su-
pervisors/Managers Weeks, Snyder, Lee, Riensche, and Super-
visor-in-Training Mathia. Supervisor James likewise attended
and took notes. (Tr. 817–818; R. Exh. 24.) A few senior par-
amedics were also present. (Tr. 94.) Schlegel discussed his
frustration about the conflicting information he received regard-
ing the bariatric gurney, which led to the interaction with
Riensche, which, in turn, led to his demotion. (Tr. 624.) He
further shared his opinion that the use of the word “Union” was
what led to his discipline. Snyder said it was his “actual explo-
sion as a supervisor” and unprofessional conduct in front of a
trainee, and then cited a variety of other reasons, enumerated
above, for Schlegel’s demotion. (Tr. 625, 771.) There are
various different accounts regarding whether, at the close of the
meeting, Schlegel stated he wanted to work through some is-
sues with his personal life before he returned as FTO. (Tr. 626,
773, 816, 1013; R. Exh. 24.)
In January 2011, Schlegel and Lai Wah Chan, a junior para-
medic, responded to a 9-1-1 call from a patient with an altered
mental status. When they arrived at the patient’s residence, she
looked very ill. Schlegel took the patient’s blood pressure,
which was extremely low, indicating potential shock or internal
bleeding, and told her she needed an I.V. and transport to a
hospital. Chan also noted that the patient had very low blood
pressure and she was very pale. The patient was extremely
concerned about the financial consequences of riding the ambu-
lance and was very resistant. Chan and Schlegel attempted to
convince her to go to the hospital. Schlegel told the patient and
her family that she could die without medical attention. Schle-
gel asked her why she called 9-1-1 and she responded that her
back pain was so severe she had passed out. Schlegel tried to
impress upon her that if she was concerned enough to call 9-1-
1, she needed to go to the hospital. At one point, Chan put the
refusal forms in front of the patient for her to sign, and when
she hesitated, Chan again tried to convince her to go to the
hospital. Chan explained the potential dangers of a family
member trying to drive her to the hospital. Schlegel ultimately
convinced the patient to go to the hospital, and described his
tone of voice as “very firm.” The patient eventually walked
over to the gurney and allowed Schlegel and Chan to transport
her to the hospital. (Tr. 99–108, 221, 364–365, 388–389.)
Chan recalls that she was the one who “made the speech” to the
patient. She perceived Schlegel’s tone of voice as professional
during the interactions. (Tr. 365.) Schlegel called the field
supervisor and notified him about the incident, stating that the
patient did not want to pay the bill, and warning that there
might be an issue when the bill arrived. (Tr. 368, 393.)
Chan received training from three FTOs. As part of that
training she learned to use any means possible to convince a

12 Boxman took care to state this was not a root cause analysis meet-
ing. Schlegel thought that it was, and Zimmer’s testimony and James’
notes also refer to root cause analysis or “RCA.” (Tr. 814–815; R. Exh.
24.) Zimmer stated that after this meeting, LeSage instructed them on
how to process RCAs better. (Tr. 822.)
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
patient whose health is in danger to go to the hospital. (Tr. 367;
GC Exh. 26.)
In late January or early February 2011, the patient called and
complained, stating that the medics on the scene were very rude
to her. Zimmer answered the call in the supervisors’ office.13
(Tr. 822.) The patient stated that Schlegel “instilled the fear of
death” in her mother, and made her mother and 14-year-old son
cry. She expressed her concern that Schlegel “made her go” to
the hospital. She also reported that Schlegel asked her why she
called them if she didn’t want to go to the hospital. (GC Exh.
31.) Zimmer made notes of the call to her file and to the CAD.
Zimmer recalled talking to the crew in the parking lot right
after the call, and then turning the matter over to Riensche.
Zimmer recalled speaking to Chan first, asking her to write up
an incident report, and then speaking to Schlegel and asking
him to write up an incident report. (Tr. 823–825.) Schlegel
recalled that he prepared an incident report at Riensche’s re-
quest 3 days later. (Tr. 111; GC Exh. 28.) Chan turned in an
incident report dated February 2, 2011. (Tr. 369; GC Exh. 43.)
Zimmer recalled that she turned Chan’s report in at the end of
her shift to the on-duty supervisor, but she did not know who
the supervisor was. (Tr. 824–825.)
Zimmer turned the complaint information over to Riensche.
She apologized to the patient and told her Metro-West would
write off her bill. (Tr. 827.) On February 9, “Heather V” noted
receiving an email from “Meiissa” stating that the account had
been written off. (GC Exh. 31.)
In February 2011, the same day the Respondent held a Just
Culture meeting, Schlegel and about four–five other employees
participated in a picket on the sidewalk in front of the Respond-
ent’s entrance. Schlegel also posted prounion flyers on his
locker in the crew room. (Tr. 78–79.) The Union filed its first
charge on Schlegel’s behalf on February 23, 2011.
On March 4, 2011, Fuiten and Boxman addressed a letter to
Schlegel, but sent it to all employees. (Tr. 659.) The letter
referenced meetings, pamphlets, Facebook communications,
and other forms of contact being used to encourage employees
to unionize. The letter then stated that some contacts have
attempted to harm the reputation of the Company by containing
misinformation, the most recent example being unfair labor
practice charges filed with the NLRB.14 (GC Exh. 23.)
Riensche met with Schlegel and issued him a CAP on March
7, 2011. (GC Exh. 24.) Riensche stated that the delay between
the incident and the discipline occurred because he consulted
with LeSage before he issued the CAP, and then he had to wait
until he and Schlegel worked the same shift. (Tr. 876–877.)
The CAP was based on the complaint from the patient he and
Chan transported. Lee and Riensche showed Schlegel the
computer aided dispatch (CAD) notes that Zimmer had taken of

13 Zimmer has answered hundreds of patient complaint calls. (Tr.
822.) Riensche recalled January 24 as the date of the incident, not the
date of the call. (Tr. 875–876.) Zimmer, who actually took the phone
call, testified it was on January 24. In any event, the phone call oc-
curred no later than February 2, the date Chan wrote her report.
14 The Respondent’s managers sent several like communications
throughout the union organizing campaign. (GC Exh. 53 (p. 8 was not
sent); R. Exhs. 9, 10, 17, 19.)
the phone call with the patient, and informed him that Metro-
West had waived her bill. (Tr. 97–98, 114, 873–874; GC Exh.
31.) The CAP also referenced the previous CAP, noting that he
was disciplined for multiple incidents of poor communication
skills. In addition, it noted that he had not checked in with his
supervisor twice a month, which was a requirement of the pre-
vious CAP. (Tr. 97–98; GC Exh. 24.) Schlegel said that since
he did not have a copy of the earlier CAP, he did not specifical-
ly comply with the provision to check in with his supervisor,
but noted that he spoke with Riensche every time he saw him
when reporting to work. (Tr. 119.) Riensche gave Schlegel a
copy of the previous CAP at the March 7 meeting. (Tr. 877; GC
Exh. 24; R. Exh. 25, p. 13.) Riensche did not interview Chan
about the incident and she received no discipline. (Tr. 369–
370.) Chan did not believe she and Schlegel handled this situa-
tion differently from other similar incidents involving refusal of
transport. (Tr. 370.)
On March 31, 2011, Schlegel again worked with Chan.
While they were unloading a patient after transporting him to a
nursing home, the safety latch at the head of the gurney where
Chan was working did not catch.15 The ambulance was parked
on uneven ground, which, according to Chan, can sometimes
result in the safety latch not catching. As a result, the head of
the gurney fell about 12 inches as it was coming out of the back
of the ambulance. The patient’s pillow fell and his head hit the
mattress. (Tr. 144-145, 372, 380; GC Exh. 44.) Chan and
Schlegel assessed the patient for injuries, and he said he did not
have any. (Tr. 372; R. Exh. 25, pp. 16–17.) They took the
patient into the nursing home. According to Schlegel, he in-
structed Chan to inform the on-duty nurse about the incident.
Schlegel informed Zimmer of the incident. (Tr. 146–147, 381,
827.) Gina,16 the transportation coordinator at the care facility
where the patient was dropped off, later called Zimmer and
wanted to know about the incident. She asked why the crew
did not report it when they dropped off the patient. Zimmer
followed up with the crew, and Chan told her what had oc-
curred. Zimmer called the facility back and explained what had
happened. Zimmer explained that the patient did not sustain a
head injury, and informed the facility to take him off the hit
injury watch list. (Tr. 828–829.) Gina told Zimmer that the
patient did not want to speak with anyone at Metro-West, and
added that he is normally grumpy. Gina requested an incident
report, and Chan and Schlegel each completed one.17 (Tr. 830;
R. Exh. 25, pp. 15–17; GC Exh. 44.) Zimmer and Mathia ex-
amined the ambulance and determined the latch was function-
ing properly. (Tr. 829.) Zimmer forwarded her notes about the
incident to Riensche. (Tr. 830, 843.)
In April 2011, Schlegel again worked with Chan. They were
called to transport a patient from a care facility where she was
residing following hip replacement surgery to the hospital. The

15 Chan could not recall whether she or Schlegel was at the head of
the Gurney. (Tr. 380.) Because Schlegel’s testimony is more certain
and is not contested, I credit it.
16 Gina’s last name is not identified.
17 Chan’s report bears the date of the incident, March 31, 2011.
Schlegel’s is dated April 25, 2011, with a notation that he believed he
also wrote an “IR” at the time. (R. Exh. 25, p. 19.)
METRO-WEST AMBULANCE SERVICES 1041
staff at the care facility noticed that the patient had become
increasingly lethargic, was slurring her speech, and was slow to
answer questions. The patient had also noticed a bright red clot
in her stool. At 8:30 a.m., Chan assessed the patient prior to
transport. She noted left hip discomfort from the recent sur-
gery, and noted that the patient was very lethargic, her voice
was almost a whisper, and her eyes were closed most of the
time. (GC Exh. 34.)
While transporting the patient, Schlegel, who was driving,
hit a curb as he was merging onto a highway. The patient was
in the gurney and was strapped down. Schlegel believed his
wheel hit a rut with some water in it, and stated there was a
“sharp jolt.” (Tr. 135–136.) Chan recalled that it was raining.
(Tr. 383.) Chan stated that both she and the patient were okay.
(Tr. 135–136.) After several minutes, the patient complained
of pain in her left hip, but was unsure whether it was from the
curb strike or the “normal bouncing around in the back” from
the ambulance. Chan did not inform Schlegel of this com-
plaint.18 (GC Exh. 34; Tr. 229.) Schlegel and Chan arrived at
the hospital, reported what had happened to the ER nurse, and
turned over care. (Tr. 136.) The patient’s husband had been
following, so Schlegel explained to him what had happened and
advised him to call the supervisor with any questions or con-
cerns. (Tr. 137.) Schlegel called the on-duty supervisor, Brian
Roth, and advised him of the incident. He told Roth that he had
struck a curb and that the whole ambulance was jarred from the
impact. He said that the patient did not complain at the time,
but he thought the family might call and complain. (Tr. 137; R.
Exh. 25, p. 26.) Schlegel also filled out an incident report. (GC
Exh. 33.) Chan, the attending paramedic, promptly completed
the EMS report after the call. (Tr. 384, 533–534; GC Exh. 34.)
EMS reports are uploaded on the Respondent’s server and are
forwarded to the emergency department where the patient was
transported. (Tr. 140, 534–535.) Chan was not interviewed
about the incident. (Tr. 376.)
F. Rule Prohibiting Pins
Paramedics wear black uniform pants, a white shirt with
company patches, and a name badge. (Tr. 123.) Schlegel wore
many different pins on his uniform, including an American
flag, a life flight pin, EMT medical symbols, and a Teamsters
pin. (Tr. 123.) The Teamsters pin is roughly the size of a quar-
ter. (GC Exh. 29.).
Employees also have worn stork pins, which the Respondent
gives when they deliver babies in the field, as well as school
pins and religious pins. (Tr. 123, 128.) In addition, employees
have worn Star of Life pins, breast cancer awareness pins, and
guardian angel pins. (Tr. 262.)
On April 14, 2011, James told Schlegel to come to the su-
pervisors’ office, where Zimmer was also present. James in-
formed Schlegel that Boxman wanted him and some others,
including Trish Preston and Peter Haslett, to remove their

18 The complaint of hip pain appears on an EMS report. The para-
medics electronically sign these reports at the beginning of their shifts.
(Tr. 229.) Chan could not recall whether she told Schlegel about the
patient’s hip pain complaint. (Tr. 387.) Because Schlegel’s testimony
is more certain and is not contested, I credit it.
Teamsters pins. (Tr. 125–126.) James referenced policy 701,
which states in full:
The policy of the company is to not endorse, encourage or
promote the formation of employee associations. This is not
to be confused with professional associations (e.g. NAEMT,
OAA, AAA, etc.).
(GC Exh. 30; Tr. 126.) At the time, James was wearing a Star
of Life pin and an Oregon Health & Sciences University
(OHSU) pin on his collar. Later that day, Schlegel noticed that
James had removed his OHSU pin. He commented that James’
collar looked a little light, and James responded that it was a
brand new $70 pin that was now in his pocket forever. (Tr.
127.) Preston was also called into a meeting with Haslett,
James, and Boxman, where she was told to remove her Team-
sters pin and her guardian angel pin. (Tr. 267.)
According to Boxman, he first told employees they could not
wear antiunion pins, which were round pins with a red slash
indicating no union, stating:
We had many employees coming in. And they had a pin that
said, “union,” on it. It was a circular pin. And it had a red line
through it. And so, indicating no union. And they were want-
ing to wear those. And it became like, “no, you can’t.” And
then their complaint was, “well, people are wearing pins that
indicate the teamsters.” And so this became—there was a lot
of scuttlebutt, I guess you could say, around it. It was like
boy, we need to look into this. And so, because there was so
much controversy over it, we looked at our policy manual.
And we had a policy. I believe it was policy 701. And we
just decided to basically apply that policy to this particular
circumstance and say, “we’re just going to stick with that pol-
icy, so only pins that are of professional organizations associ-
ated with our company.” And so we asked we the people who
asked if they could wear the pin that had the red line through
it, we said no.
And then we started getting other complaints about the other
pins that are being worn. And so we had asked them to take
those pins off. And then we had one individual who was
wearing that pin through his Metro West patch, wearing the
teamster pin through his Metro West patch, which created a
lot of controversy. And so that had to be addressed as well.
[Tr. 580.]
Since mid-April, Employees are permitted to wear pins in
accordance with policy. (GC Exh. 6.) Preston wears a CAAS
accreditation pin and a years-of-service pin. (Tr. 274.)
G. Recommended Terminations and Other Events
Before Schlegel’s May 2011 FMLA Leave
Boxman is the only person, other than Fuiten, with authority
to terminate employees. (Tr. 627.) Termination actions begin
with a recommendation from the supervisor to the department
manager. The department manager either agrees or disagrees
with the recommendation, and then forwards it to Boxman.
(Tr. 627.)
On April 28, 2011, Weeks sent Boxman a letter recommend-
ing Schlegel’s termination. He noted that Schlegel had a 91-
percent attendance rate between March 1, 2010, and April 31,
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2011. Weeks also noted Schlegel’s demotion for unprofession-
al behavior and his discipline for excessive tardiness. He fur-
ther conveyed that although Schlegel had received two CAPs,
Weeks continued to receive complaints from customers about
his behavior.19 Weeks concluded by stating that he and Schle-
gel’s supervisor, Riensche, had taken steps to help Schlegel
improve, but Schlegel had not shown improvement in either his
performance or attitude. (R. Exh. 25, p. 24; Tr. 944–947.)
On May 5, 2011, Lee received a call from the husband of the
patient with the recent hip replacement, complaining about the
curb strike, and stating that his wife had been having back pain
since the incident. (R. Exh. 25, p. 25.) Lee asked Schlegel to
write an accident report. (Tr. 140–141; R. Exh. 25, p. 25; GC
Exh. 35.)
On May 11, 2011, Riensche made a note to file memorializ-
ing a meeting he had with Schlegel, with Lee also present,
about his attendance. Riensche did not recall whether he made
the note the day of the meeting or the day after. (Tr. 880; R.
Exh. 25, p. 27.) According to Riensche’s notes, he met with
Schlegel to inform him that his attendance percentage was 91
percent for the time period of April 2010 through March 2011,
which constitutes habitual absenteeism under the Respondent’s
policy. Schlegel commented that the Respondent was finding a
lot of reasons to discipline him lately, asked about the recent
claim of injury by a patient (which Riensche noted was still
under investigation) and asked if Riensche was aware of what
was going on with the NLRB. Some other conversation took
place, and the meeting concluded by Schlegel asking for the
information showing his attendance, and Riensche agreeing to
provide it.
On May 16, 2011, Riensche wrote an unaddressed letter to
recommend Schlegel’s termination.20 He cited: (1) the letter of
counseling Schlegel received for excessive tardiness on Octo-
ber 13, 2010; (2) an attendance percentage of 91 percent be-
tween April 2010 and March 2011; (3) yelling at a pedestrian
about a remark regarding his appearance on May 21, 2009; (4)
the unprofessional remark about the bariatric gurney in front of
a trainee; (5) the incident with the patient becoming upset (de-
tailed above) on January 24, 2011; (6) lacerating a patient’s
elbow while raising the gurney on June 8, 2010; (7) the gurney
drop on March 31, 2011, with the notation that the caregiver
said the patient complained of head pain; and (8) the curb strike
in April 2011. Riensche conveyed that the pattern of conduct,
rather than any single incident, warranted termination. (R. Exh.
25, p. 29.)
Boxman decided not to terminate Schlegel. He considered
Schlegel’s long tenure with the Company, the majority of
which had been very good. (Tr. 633–634.)
Schlegel took leave under the Family and Medical Leave Act
(FMLA) from May 17 through July 11, 2011. According to

19 It is not clear what Weeks is referencing when he states he re-
ceived additional complaints about Schlegel’s behavior after the second
CAP and before his April 28 letter. The complaint about the gurney
safety latch failing to catch occurred on May 5, and the Respondent
perceived it as a performance rather than a behavioral issue.
20 Riensche attributed his delay in writing the letter to distraction
from the curb strike incident. (Tr. 882.)
Schlegel, Boxman spoke to him a couple days before the leave
was to begin, and encouraged him to take more time because he
did not expect Schlegel would have a job when he returned.
(Tr. 130.)
On May 24, 2011, Wheelchair Department Manager Brian
Fairbanks sent a letter to the employees in his department and
various supervisors and managers, informing employees that
they may be approached in connection with the union cam-
paign. It explained that employees were not required to speak
to the union representative. The letter also expressed the posi-
tive impact of Just Culture and praised the employees for how
well they had responded to the program. It concluded by ask-
ing employees to make an informed decision about union repre-
sentation. (Tr. 712–713; R. Exh. 17.)
On June 17, Fairbanks sent a letter to the wheelchair depart-
ment employees and various supervisors and managers. The
letter discussed management’s awareness that union representa-
tives were camping out at hospitals and other facilities to en-
courage employees to sign union cards. The letter further stat-
ed that the employees who raised the issue expressed concern
that these activities were interrupting workflow and causing
delays for clients. It notified employees that they have a right
to learn about the Union, but asked that they not permit union
activity to interfere with their work. (R. Exh. 18; Tr. 714.)
H. Schlegel’s Return From FMLA Leave and
Performance Improvement Plan
Schlegel returned to work on July 11, 2011, and he was
brought into a conference room with Riensche and Weeks, who
presented him with a performance improvement plan (PIP).
(Tr. 131.) The PIP referenced the curb strike in April 2011,
which resulted in a complaint and claim of injury by the pa-
tient. It also referenced the March 2011 incident of the gurney
safety latch failing to catch, as well as the incident from June
2010 when a patient’s elbow was scraped as Schlegel was rais-
ing the side of the gurney. The PIP cautioned that any further
complaints of patient injury in the next year could result in
discipline, including termination. The PIP also instructed
Schlegel to write a report/presentation on the dangers of inat-
tentiveness and situational awareness. (GC Exh. 32; Tr. 132.)
During the meeting, Weeks explained that a CAP was meant to
address behavioral issues, while a PIP was meant to address
performance issues. (R. Exh. 25, pp. 33–35.) Weeks deter-
mined that the series of incidents cited were performance-
related and the common thread was inattentive behavior. (Tr.
948.)
Weeks opined that Schlegel had under-reported the curb
strike incident to Roth, stating that he just tapped the curb, and
therefore all Roth was prepared for was to talk to the family if
they called. Weeks said he spoke with the husband, who had
mentioned that Schlegel told him he had hit a puddle of water
which caused the vehicle to hit the curb. He and other unidenti-
fied individual(s) (referred to only as “we”) checked the nation-
al weather service report, which showed 1/4000 inch of water
had fallen in the 24-hour period prior to the incident. (Tr. 951–
952.)
With regard to the report about the dangers of inattentive-
ness, Schlegel testified that he wrote it and placed it in
METRO-WEST AMBULANCE SERVICES 1043
Riensche’s in-box. (Tr. 151.) Riensche did not receive the
report. (Tr. 891.) About 1.5 weeks later, Weeks told Schlegel
he had not received the report, and requested a copy. Schlegel
stated he gave a second copy of the report to Weeks the day
after he requested it. (Tr. 150–151.) Weeks stated he did not
receive the report. Schlegel was not able to produce the report
for the hearing, claiming the laptop on which he had written it
was stolen. (Tr. 1019.)
I. Schlegel’s Suspension and Termination and His
Partners’ Discipline
On July 28, 2011, Schlegel and his partner Randy Watkins
were assigned to post 1. (Tr. 151–152.) Post 1 is at the Cor-
nelius Fire Department, but crews routinely parked at a nearby
Fred Meyer store. Boxman stated this was permissible because
the Fred Meyer store is .2 miles away.21 (Tr. 668.) Schlegel
estimated Fred Meyer was .5 miles from the fire station, and
Watkins estimated it was about .3 miles from it because he
observed it was more than 2 blocks away. (Tr. 233, 305.) To-
ward the end of the shift, Watkins, who was driving, pulled into
a John Deere dealership about .7 miles from the Fred Meyer so
that he and Schlegel could conduct inventory of the ambulance.
(Tr. 150–152.) According to Watkins, James had told him it
was .5 miles from the Fred Meyer. (Tr. 285.) Riensche claimed
it was .9 miles away, according to MapQuest or another online
map (Tr. 894). Watkins had posted at the John Deere facility
“countless” times before, and he did not believe it was an issue.
(Tr. 285–286, 293.) Schlegel was aware that this was not the
assigned post, but he did not instruct Watkins to move, nor did
he advise Watkins to correct his report to dispatch that they
were at post 1. (Tr. 238–240.) Riensche explained that any
calls that came from west of where they were parked would
have been delayed because post 1 is the farthest west post. (Tr.
894–895.). Schlegel and Watkins believed the John Deere
dealership was a better place to post because there was another
ambulance to the west of them. (Tr. 252–253, 285–286, 300.)
Riensche learned Schlegel and Watkins were off post be-
cause Snyder had seen an ambulance parked at John Deere and
thought it was an unusual location.22 (Tr. 897.) On August 1,
Schlegel was called in to meet with Riensche and James about
being off post, and they told him he was going to receive a
CAM. (Tr. 153–154.) On August 1, the Respondent prepared
a CAM for Schlegel, instructing him to advise dispatch for any
deviation from posting/assignments. (GC Exh. 36.) Weeks
delivered the CAM to Schlegel because Riensche was not going
to see him for an extended period because of scheduling.23 (Tr.
958; R. Exh. 25, p. 37.) Schlegel and Weeks signed the CAM
on August 8.24 (GC Exh. 36; R. Exh. 25, p. 36.) The CAM
defines post 1 as “either Station 8 or Fred Meyer in Cornelius.”

21 In some parts of the transcript, “Meyer” incorrectly appears as
“Myer.”
22 Snyder did not attest to this during her testimony.
23 Riensche took a sabbatical in August 2011, and Jeff Mathia filled
in as supervisor. (Tr. 893.)
24 The space for the supervisor’s signature is blank, ostensibly due
to Riensche’s sabbatical.
Watkins recalled meeting with James on August 1, 2011, to
talk about what had occurred and to figure out why he and
Schlegel were off post. Watkins apologized, and explained to
James that there was another ambulance that came into post 1,
and that he made a judgment call. James explained to Watkins
the importance of posting in the correct location, and stated
they wanted to make sure posting was adequate because they
had noticed some recent errors.25 (Tr. 285–286, 300.) James
filled out a coaching memorandum about the incident, but did
not show it to Watkins. (Tr. 290.)
A few days later, before Schlegel started his shift, Weeks in-
formed Schlegel he was supposed to receive a CAP rather than
a CAM. At the end of the shift that same day, James met
Schlegel and Watkins at post 5 and presented Watkins with a
CAM, dated August 1. (Tr. 156–157, 288; GC Exh. 42.) James
had erroneously prepared the coaching memorandum initially,
but it was changed to a CAM because the infraction at issue
concerned behavior rather than performance. (Tr. 677, 682–
683.) Watkins and James signed the CAM on August 8, and
Weeks signed it on August 9. (GC Exh. 42.)
In Watkins’ experience, going off post is common because,
as he illustrated by example, certain posts do not have ameni-
ties such as restrooms or food. Some of the senior paramedics
he worked with called dispatch when they strayed from the
post, and others did not. (Tr. 293–195, 305.) Trevor Olsen,
who worked for Metro-West as a part-time junior paramedic
from July 2010 to November 2011, observed that “[n]ever did
anybody park exactly at the assigned location.” He explained
that the posting locations were intersections, so the paramedics
would park somewhere near the intersection where there was a
bathroom and food. He believed it was okay to post within a
mile of the assigned posting location, based on what FTO Mark
Francum had told him. He sometimes parked at a Quik Mart
about a mile or 1.25 miles from post 1. He knew of other em-
ployees who posted at a Wal-Mart about a mile from post 1.
(Tr. 329–331.) No paramedics were disciplined for parking at
the Cornelius Wal-Mart. (Tr. 993.)
Post 13 is at the intersection of Tualatin-Sherwood Road and
Avery Street.26 Paramedics sometimes park at 119th Avenue
and Itel Street, .61 miles away. (Tr. 160–163, 235; GC Exhs.
37–40.) Snyder recalled post 13 as being at 115th and Tuala-
tin-Sherwood Road. (Tr. 774.) At that intersection, there is a
Space Age gas station, but Snyder said crews never post in their
parking lot. Snyder posted at 119th and Itel, and considered it
as being on-post. (Tr. 774.) No other employees were disci-
plined from January 1, 2009, through the date of the hearing for
failing to post at the appropriate location. (Tr. 850; GC Exhs.
51–52.)
On August 2, 2011, James sent an operations update that re-
minded employees of the need to check in with dispatch if they
wanted to get food or a drink when arriving early for a sched-
uled call. (R. Exh. 22; Tr. 780–782.)

25 Riensche recalled also being present at the meeting (Tr. 892), but
Watkins did not mention him, and Riensche was on sabbatical at this
time.
26 The transcript erroneously says “12th” rather than “Tualatin.”
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On August 12, 2011, Riensche sent an email to Boxman rec-
ommending Schlegel’s termination. He cited Schlegel’s failure
to follow through with his PIP by failing to submit a report on
the dangers of inattentiveness that was due August 1. He also
referenced the incident where Schlegel was spotted posting
approximately 1 mile off post. Riensche concluded that Schle-
gel continued to show a substandard work ethic, and opined this
was a slight to the hardworking employees who did not behave
in such a lax manner. (R. Exh. 25; Tr. 899.) On August 15,
2011, Weeks sent Boxman another letter recommending Schle-
gel’s termination. Weeks noted Schlegel’s failure to complete
the PIP by failing to turn in the report by August 1. Weeks
further conveyed that Schlegel was observed posting over a
mile from where he stated he was. He based his recommenda-
tion on Schlegel’s continued substandard performance.
(R. Exh. 25, p. 39; Tr. 956–958.)
Boxman discussed these recommendations with Riensche
and Weeks, respectively. According to Boxman, Riensche in
particular was frustrated that his first recommendation had not
been acted upon, and felt very strongly that Schlegel should be
terminated. (Tr. 635–636.) Boxman decided not to terminate
Schlegel. Boxman testified that he advised Schlegel that he had
a second recommendation from his supervisor and department
manager, and told him he still held out hope that Schlegel could
turn things around. (Tr. 636.) According to Boxman, Schlegel
responded that he was going out on medical leave, and Boxman
advised him to take the time to think about everything.27 (Tr.
637.)
On October 25, 2011, Schlegel parked in front of Fuiten and
Boxman’s offices with union posters in his front windshield.
(Tr. 164; GC Exhs. 40–41.) Management did not tell Schlegel
or any other employees to remove posters from their vehicles.
(Tr. 217.) The same day, the Respondent received a MWA
Medicguy Facebook page showing responses to an employee
survey and explaining how the Union could help. (Tr. 801,
860–861; GC Exh. 28.)
On October 25, Schlegel worked with Brent Warberg. Ac-
cording to Schlegel, they were called for a nonemergency
transport to take a bariatric patient from St. Vincent’s ER to her
home. On the way to get the patient, Schlegel and Warberg
stopped to pick up lunch because it was 3 p.m. and they had
been working about 4–5 hours but had not yet eaten. (Tr. 168–
170.) This took about 15 minutes. (Tr. 170, 242.) Schlegel did
not notify dispatch about this, and was unaware of whether
Warberg did. (Tr. 243.) When Schlegel and Warberg arrived
at the hospital, Schlegel spoke with a friend from AMR for
what he estimated was up to 12 minutes. (Tr. 244.) Schlegel
then instructed Warberg to let dispatch know they had arrived
at the hospital. (Tr. 171.) Meanwhile, Jeff Mathia arrived in his
vehicle with a patient, and had a quick turnaround. When Ma-
thia left, Schlegel parked in his spot and proceeded to get the
patient. (Tr. 172.)

27 This testimony is obviously incorrect, as Schlegel went on FMLA
leave after the first recommendations for his termination, not the sec-
ond.
The Respondent’s account of events tracks Schlegel’s for the
most part. Weeks and Riensche received an incident report
recounting Schlegel’s actions from the time of dispatch. (R.
Exh. 25, pp. 4–42.) Weeks believed Mathia prepared the inci-
dent report.28 (Tr. 961.) The incident report, which does not
reference Warberg, states that Mathia arrived at 5:33 p.m. and
saw Schlegel bent over the passenger seat while standing out-
side his unit. When Mathia exited the facility after dropping
off his patient, Schlegel’s vehicle was in the middle lane, and
an AMR unit was parked to the left of it, blocking in Mathia’s
vehicle. Mathia asked Schlegel to move his vehicle so he could
leave, and at that point Mathia noticed Steve Fritz from AMR
exiting his vehicle. Mathia contacted dispatch, who told him
that the time of Schlegel’s pickup was “now.” Dispatch called
Mathia back and informed him that Schlegel was dispatched at
4:32 p.m. and he did not call in the arrival until 5:38 p.m. He
did not go into the building until approximately 5:49 p.m. Ma-
thia inspected GPS logs and found that Schlegel stopped at
181st and Glisan at 4:32 p.m., left that location at 4:58 p.m.,
and arrived at St. Vincent’s at 5:32 p.m. (R. Exh. 25, pp. 40–
41.)
On October 26, Weeks memorialized what Mathia had re-
ported to him, and added a timeline based on his investigation
into the delay. (R. Exh. 25 p. 42; Tr. 925, 961.) Weeks’ docu-
ment notes that Mathia had checked with dispatch and learned
the pickup was to be ASAP. Upon investigation, Weeks’ report
states learned that the ambulance Schlegel and Warberg were
driving was stopped en route for about 15-1/2 minutes. Schle-
gel and Warberg arrived at St. Vincent’s at 5:32:41 p.m. per the
AVL, and called the arrival into dispatch at 5:37:06 p.m. Ma-
thia arrived shortly after 5:33 p.m. and saw Schlegel visiting
with the AMR crew. He saw Schlegel and Warberg enter the
hospital at 5:49 p.m. (R. Exh. 25, p. 42.)
On October 26, 2011, Lee called Schlegel into the confer-
ence room and told him he had taken too long to respond to the
call the previous day. Schlegel told her what had transpired,
and Lee told him this was a serious infraction. Lee notified
Schlegel he was suspended, and that if investigation into the
matter yielded nothing, he would be paid for the day. (Tr. 176–
178; R. Exh. 25, p. 43.) Warberg received a CAM for the inci-
dent because he had no prior discipline. (Tr. 674–675, 682.)
According to Schlegel, paramedics traditionally have been
able to pick up food during their shifts. They work 10–12-hour
shifts with no scheduled meal breaks. (Tr. 176, 270.) Trisha
Preston, a junior paramedic, had not been told to call dispatch
to let them know she was getting a meal if there was plenty of
time to get to a call, and the crew did not stray from the route.
(Tr. 271.) Olsen was not aware that he needed to tell dispatch
if he stopped to buy a meal during his shift. No supervisor or
manager ever told him this. (Tr. 331–333.)

28 Another accounting of the events on October 25 is at R. Exh. 32.
Weeks identified R. Exh. 32 as an incident report from Mathia. (Tr.
962.) It is plainly not an incident report. It notes all the things leading
to the decision to terminated Schlegel, which did not involve Mathia.
The document refers to Mathia in the third person, while other docu-
ments Mathia wrote do not. See R. Exh. 25, p. 40.
METRO-WEST AMBULANCE SERVICES 1045
On October 27, 2011, Riensche sent Boxman and Weeks an
email again recommending Schlegel’s termination. He summa-
rized his previous requests, and referenced the CAM Schlegel
received for being off post on August 8, as well as the incident
on October 25, detailed directly above. Riensche noted that the
stop for food and loitering time outside the ER delayed the
response time by 31 minutes. (R. Exh. 25, p. 44.) Riensche
believed the latest incident was poor customer service and that
it demonstrated that Schlegel had not responded to any of the
efforts to coach him and help him improve. (Tr. 901, 904.)
Weeks sent Boxman an email that same day essentially echoing
Riensche’s recommendation. (R. Exh. 25, p. 45; Tr. 960.)
Weeks also provided a time line of the events that led to his
recommendation. (Tr. 963; R. Exh. 33.) Boxman spoke with
Weeks, who expressed frustration that he had not acted on the
previous recommendation. Boxman also spoke with LeSage,
who confirmed that the termination was in line with the Just
Culture program. (Tr. 638, 655.) Boxman based his decision
to terminate Schlegel on all the events that had occurred, and
explained there were no signs that Schlegel wanted to improve.
(Tr. 641, 674.)
On October 27, Schlegel was called to meet with Weeks,
Riensche, and Boxman in Boxman’s office. Boxman told
Schlegel he was terminated. (Tr. 187, 905, 964; R. Exh. 25, p.
46.)
J. Alleged Surveillance and Threats
Neil Lundin has worked in Metro-West’s wheelchair divi-
sion as an EMT basic since March 2011. (Tr. 403.) Fairbanks
is manager of the wheelchair division, and Phil Reid and Chris-
topher Brooks are supervisors. (Tr. 404, 688.) Fairbanks has
an office, but spends “a good portion” of his day where his
vehicles and employees are, i.e., in the parking lots, shop area,
fuel pumps, and crew rooms. (Tr. 692–693.) On average, he is
in the middle and rear parking lots where the wheelchair vans
park for 2–3 hours in the morning and an hour or 2 in the late
afternoon/evening. (Tr. 695–698.) Fairbanks also travels
through the crew room throughout the day. (Tr. 701.) Boxman
testified that he wants supervisors out in the parking lot to in-
teract with the crews and “they’re out there a lot, a whole lot,
and that’s the expectation.” (Tr. 600–601.)
Lundin became active in the union campaign in August
2011. After he clocked out, he would approach employees in
the Respondent’s back and middle parking lots after their shifts
and ask they were interested in the Union. (Tr. 404–407.)
Schlegel and Melissa Morgan also did this, along with another
employee who no longer works for the Respondent. (Tr. 453.)
In anticipation of the petition that was ultimately filed on No-
vember 21, 2011, the Union began increasing its campaign
efforts at Metro-West. (Tr. 41.) On October 21, 2011, Lundin
started putting a sign that says, “Strength is a Teamsters Con-
tract” on his front windshield. (Tr. 408; GC Exh. 40.) During
the union campaign, junior paramedic Trisha Preston noticed
that supervisors were in the parking lot more frequently and for
greater lengths of time than usual. They were “just roaming
around making sure people weren’t loitering.” (Tr. 269.)
On November 8, 2011, Lundin encountered Fairbanks and
Reid in the parking lot at the beginning of his shift. He had not
seen both of them in the parking lot at the same time previous-
ly. Fairbanks asked Lundin how long he had been with the
Company, which Lundin understood was in relation to Fair-
banks’ desire to give him his 6-month evaluation. (Tr. 410–
411, 459–460.)
On November 9, employee Twyla Wells complained to
Zimmer that there was someone hiding in the bushes, and every
time someone shined a light, he would hide. Zimmer asked
Wells to write up her complaint, which Zimmer turned over to
Boxman. (Tr. 832.) That same day, Wells complained to
Boxman that she did not feel safe in the parking lot because
people were “in the bushes and kind of harboring and hiding
and it seemed inappropriate for business.” (Tr. 584.) Following
Wells’ complaint, Boxman heard supervisors talking about
VST complaints of people in the parking lot. He inquired, and
learned that the VSTs were frustrated because the people in the
parking lot were interfering with their ability to park the wheel-
chair vans. (Tr. 585–587.)
At 4:27 p.m., Weeks sent an e-mail to the paramedic super-
visors informing them that some employees have been socializ-
ing in the parking lot after hours and not allowing VSTs to park
vans in open spots. It informed the supervisors that the em-
ployees are not permitted to interfere with anyone’s work, and
that the employees had been instructed to contact their supervi-
sors if this occurred. The email concluded by instructing the
supervisors to investigate any such complaints promptly. (R.
Exh. 35.)
On November 10, Lundin saw Fairbanks in the back parking
lot as he was returning from his shift at around 5 p.m. Lundin
reversed his vehicle into a space, and had his Teamsters poster
displayed in his front windshield. After he clocked out and
returned to his vehicle in the back parking lot, Lundin saw
Boxman and Paul Austin, the hospital liaison, in the parking
lot. (Tr. 412.) According to Boxman, there was “a lot of
noise” and some employee complaints, so he wanted to see for
himself what was occurring. (Tr. 589.) Boxman and Austin
approached Lundin and they engaged in idle conversation. (Tr.
412–413, 590–591.)
Fairbanks recalled that Jocelyn Johnson, then-supervisor for
the wheelchair department, was in the middle parking lot con-
ducting inventory of the wheelchair vehicles’ seatbelt straps.
(Tr. 703–705.) From Johnson’s later email to Boxman at 7:11
p.m. on November 10, it appears she was conducting inventory
of oxygen tanks. (R. Exh. 16.) Johnson approached Lundin
with a work-related question. He informed her that he was off
the clock talking to employees about the Union, and did not
want to discuss business. At one point, per Johnson’s notes,
Lundin raised his voice and exclaimed that he had a right to be
in the parking lot. Fairbanks described Lundin’s tone as “don’t
bother me” and he intervened in Lundin and Johnson’s conver-
sation to avert an argument. (Tr. 416, 709–710; R. Exh. 16.)
The back parking lot is not well lit. Fairbanks got into a wheel-
chair vehicle and parked it at the entrance of the back parking
lot with the headlights facing Boxman, Austin and Lundin. (Tr.
412–413, 707.)
Lundin then approached David Hawkins, another EMT
basic, to discuss the Union but Hawkins said he was not inter-
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ested in talking to Lundin with Boxman in the parking lot.
(Tr. 414.) According to Boxman, as he was walking back to his
office, he heard Hawkins yell, “[L]leave me alone” and express
frustration about being repeatedly approached regarding the
Union. (Tr. 592.) Zimmer recalled Hawkins loudly saying, “I
do not want your card.” (R. Exh. 26.)
Zimmer testified that she came out to the parking lot by her-
self, and that she thought her purpose was to ask Johnson a
question about the inventory. (Tr. 833–834.) Lundin recalled
seeing Zimmer with a man he could not identify. (Tr. 417.)
At 6:32 p.m., Boxman sent an email to the employees stating
that he had received complaints about people lingering in the
bushes and back parking lot, making employees uncomfortable,
and interrupting the workflow of the VSTs. Boxman further
informed employees that managers would be randomly walking
to the parking lots, and informed employees to let management
know if they saw people lingering in and around the parking
areas. (Tr. 422; GC Exh. 45.)
Riensche arrived at work at 7 p.m. and noted that Zimmer
and Boxman were still there. (Tr. 907.) Zimmer talked about
the activity in the parking lot with Boxman and Riensche.
They discussed how they had received “some complaints about
people being out in the parking lot, like the gentleman the night
before who was out in the bushes, just the overall safety of our
crews.” (Tr. 834.) Zimmer added that Matt Mosso had stated
Neil Lundin and Melissa Morgan had been harassing the VSTs
and not allowing them to park in certain spots. Zimmer also
recalled that Mosso, prior to the evening of November 10, re-
ported that the union organizers would startle Lidia Murzea by
wanting to talk to her as she was getting out of her van. Zim-
mer made a note to file about Mosso’s complaint. The note is
undated but recalls the complaint as occurring on November 9,
and she testified she made the note on November 9. The note
to file does not reference any activity of Morgan, but adds that
“Anthony” showed Mosso a card Lundin had given him. It also
added that Lidia complained that “they” walk up in between the
vans and startle her. Zimmer asked Mosso to write up his com-
plaint, and asked Mosso to have Murzea and “Anthony”
writeup their complaints the next time he saw them. (R. Exh.
26; Tr. 835–838.)
Zimmer returned to the middle parking lot with Boxman and
Riensche. (Tr. 417–418, 908). Riensche, who went as a sup-
portive measure for Boxman and Zimmer, recalled it was the
back parking lot (Tr. 907–909). Lundin spoke with EMT basic
Kelby Nelson about the many supervisors in the parking lot,
and Nelson commented, “It is what it is and it won’t go away.”
(Tr. 418–419.) Boxman, Zimmer, and Riensche then came to
the back parking lot, and Boxman suggested to Lundin that it
was time for him to go home. (Tr. 419.) Boxman informed
Lundin that they had received a complaint on November 9 that
there was someone hiding in the bushes in the parking lot mak-
ing employees feel uncomfortable. (Tr. 419.) Boxman also
stated that the vehicle service technicians (VSTs), who service
wheelchair vans in the parking lots, were complaining about a
lack of parking available to them. (Tr. 419–420, 608–609.)
There were parking spaces available, but Lundin offered to
park in the overflow lot. (Tr. 419–420.) Boxman described his
reason for returning to the parking lot as follows:
Q. Is that the only time that you went out to the park-
ing lot that night?
A. No. I went back to my office and tried to do some
more work and the talk regarding, actually, a little bit of
time had passed and it was—it started up again as far as, I
tried to park my van and I was told to move away and I
was like, oh, here we go again, let me see what’s going on
and I walked back out there, out to the back parking lot
and I saw Neil still out there.
Q. And were you alone at that point?
A. No, I believe Melissa Zimmer joined me and I
think it might have been Kevin Riensche.
Q. Okay. And why were Kevin and Melissa with you?
A. They were working and they were listening, they
had been hearing this for a little while and they—I said,
I’m going to go check it out, well, we’re going to go too
because there was a lot of curiosity as to what was happen-
ing, you know, trying to verify what the VST’s are saying,
I can’t get my work done with—well, let’s see for our-
selves and try to correct the situation. So they just kind of
tagged along.
Q. And so continue, when you went to the parking lot
what did you see?
A. Neil Lundin.
Q. And what was Neil doing?
A. They were standing there in the parking lot and
again, there wasn’t—at that point there wasn’t anybody
else around but Neil.
Boxman informed Lundin that he was going to stay in the park-
ing lot. Boxman then returned to his office because it was quiet
in the parking lot. (Tr. 420, 594.)
Lundin was by himself for awhile, until Boxman, Zimmer,
Riensche, and possibly some others returned with J. D. Fuiten,
Metro-West’s owner. (Tr. 420–421, 594.). Boxman testified
that VSTs again complained, and specifically named Lundin.
Fuiten told Lundin that it was time for him to leave. (Tr. 420–
421, 596, 672.) Lundin left at approximately 6:10 p.m.29 (Tr.
421.)
On November 11, Wells sent an email to Boxman describing
what she saw:
Larry:
As requested, I am reporting the event from Wednesday, the
9th of Nov. We were coming in for end of shift. As we came
around the comer by the rear of the Homewood Suites, there
was a person, standing by the fire hydrant. When He (sic)
saw us, He (sic) seemed disturbed by our seeing him, and he
moved off to the side. The best description I can give, is:
Younger, thin male, wearing a jacket, and knit hat. Maybe
there is a security camera available at the hotel, which would
show the activity. Thank you, Twyla Wells
[GC Exh. 13.]

29 There is a conflict as to the time, as Riensche stated he did not ar-
rive until 7 p.m.
METRO-WEST AMBULANCE SERVICES 1047
On November 14, Lidia Murzea wrote Lee an email, copied
to Boxman, stating as follows:
Hi Jan,
I just wanted to write you an e-mail regarding the incident
with the union supporters so that it will be on record. There
have been many times when the EMTs stand in the middle of
the lot, which prevents us from moving the wheelie vans effi-
ciently and takes up a majority of available parking. There
have even been times when I attempted to pull into a spot and
they motioned me to choose another so that their cars could
be closer together. I have been approached during my shifts
and asked whether or not I would like to support their cause.
Since Larry has sent out the e-mail regarding this issue, there
haven’t been any problems. However, I have heard from oth-
er VSTS that EMTs have been making jokes that they “will
not jump us in the parking lot.” I appreciate the fact that the
supervisors have addressed this issue. Thank you for your
time.
Warmly,
Lidia Murzea
(R. Exh. 14.) Boxman received no further complaints about
interference with employees’ work in the parking lot. (Tr.
615.)
Employees call the crew line the evening before each shift to
determine if there are any schedule changes. (Tr. 466, 691.)
When Lundin called the crew line to determine his start time
the following day, November 11, he was informed he would
start at 10 a.m. rather than his usual start time of 8 a.m. He had
been asked to start his shift at 10 a.m. one other date, July 4,
2011. (Tr. 428–29.) He worked a full shift on November 11
and clocked out at 8 or 9 p.m. (Tr. 429.)
On November 17, Lundin’s shift ended at 6 p.m. (Tr. 431.)
Because of the email Boxman sent regarding the parking lots,
Lundin went to the crew room to talk to employees about the
Union. A few employees were in the crew room, and Lundin
spoke with two EMT basics, Hannah Armstrong and Allie
Sayre. (Tr. 432–433.) He noticed that Fairbanks walked back
and forth, and then Snyder began walking back and forth and it
appeared to Lundin as if she was looking for someone. (Tr.
433–434.) Snyder goes into the crew room and/or passes
through it several times a day for a variety of reasons. (Tr. 775–
776.) Snyder recalled that on November 17 she had gone
through the crew room to get a piece of equipment in the adja-
cent supply room, and then came back. Snyder and the em-
ployees engaged in general chatter, and then Fuiten came in and
said it was time for everyone to leave. (Tr. 433–434, 78–80.)
The following day, Lundin went to the supervisor’s office to
talk to Phil Fried. While Fried was on the phone, Fuiten came
in and suggested that it was time for Lundin to go home.
Lundin told Fuiten he needed to talk to Fried, asked Fuiten if he
should leave afterward, and received an affirmative response.
(Tr. 435.)
Fairbanks re-sent his May 24 letter, described above, on No-
vember 18, 2011. (R. Exh. 19; Tr. 722.)
MacPherson filed a petition with the Board to represent Met-
ro-West’s employees on November 21, 2011. (Tr. 39–40.) On
November 22, Lundin passed out union flyers in the parking lot
following his shift. After about 15 minutes, Supervisor Jeff
Mathia approached Lundin and told him Fuiten had said it was
time for him to leave. (Tr. 436–437.) Lundin was asked to
leave on one more date between the petition and the election.
(Tr. 440.)
Mathia typed a summary of a parking lot safety check he
performed, and there is a handwritten notation that reads “11-
22-11, 12:45 hours.” (GC Exh. 9.) He followed Lundin to
each employee he approached, and after Lundin handed the
employee a flyer, he “cut him off and started a dialog with each
one.” Mathia encouraged them to think hard about their deci-
sions and to come to management with any questions. He re-
ported that the employees had not talked to management, and
that the Union had instructed them not to. After finding out
Lundin was no longer on the clock, Mathia asked him to leave.
He similarly asked Melissa Morgan, who was handing out fly-
ers, to leave. (GC Exh. 9.)
On November 23, Fairbanks sent an email to the wheelchair
division employees, stating that due to complaints about in-
creased “agenda promoting” in the parking lots, Metro-West
was going to enforce “the existing practice of not loitering in
the workplace, or on the property, when you’re not sched-
uled.”30 (GC Exh. 46.) Fairbanks testified he sent this in re-
sponse to employee complaints that they were not able to move
around in the parking lot because of the union activity. He
specifically mentioned David Hawkins, Kim Giarcho, Chase
Holenstein, and Alex Goldman. (Tr. 718–719.) Lundin ob-
served it was common practice for employees to hang out in the
crew room or parking area to wait for traffic to subside. He
was not aware of any rule or practice prohibiting this. (Tr.
438–439.) Fairbanks agreed he was mistaken, and that no such
rule existed. (Tr. 720.)
On December 6, 2011, there was a hearing to determine the
appropriate bargaining unit. The following employees testified
at the hearing: Schlegel, Melissa Morgan, Neil Lundin, and
Zach Mesberg. (Tr. 40.)
On December 14, 2011, Fuiten sent a letter to all employees
and supervisors sharing his “philosophy” regarding the im-
portance that Metro-West remains nonunion. He explained that
a union can drive a wedge between employees and manage-
ment, and noted that unions often interrupt operational free-
doms. Fuiten informed employees that he asked Boxman to
take the lead and educate them about “the other side of the
story.” He asked for employees to keep an open mind, and
expressed his belief that they would give the Company another
chance by voting “no” in the upcoming election. (GC Exh. 9;
Tr. 525.)
Boxman testified that in early 2012 in he received com-
plaints that union representatives would approach employee
while they were at their posts trying to complete their charts.
The employees felt harassed because the representatives would
follow them and not leave them alone when asked. Employees
were also approached at hospitals and reported the same prob-

30 Fairbanks was referring to solicitation of signatures when he stat-
ed “agenda promoting.” (Tr. 720.)
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lems (Tr. 616–17). On January 9, 2012, Boxman sent out an
email to employees outlining the problem, and informing them
that interfering with work was not protected activity. He en-
couraged employees to notify a supervisor or dispatch and/or
hospital security if anyone tried to interfere with their work.
(R. Exh. 15.)
The election was held on January 12 and 13, 2012. (Tr. 39.)
Following the election, Lundin has not been told to leave after
shift despite remaining on the Respondent’s property. (Tr.
441.) Lundin has not seen managers or supervisors in the mid-
dle or back parking lots.
On February 16, 2012, Snyder issued Lundin a letter of
commendation for his swift actions and teamwork while assist-
ing a patient during a call. (R. Exh. 23; Tr. 784–785.)
On March 7, 2012, Lundin and Fairbanks met. (GC 47; Tr.
444, 725–726.) According to Lundin, Fairbanks asked Lundin
if he joined the Company with the intention of “overthrowing
the company and going to war with the company.” Lundin
responded that he did not, but that he obviously supported un-
ions. Fairbanks told Lundin the union supporters had hindered
his efforts to improve the wheelchair department for 6 months.
He also said he had read the Facebook pages, he and others
were offended by some of what was said, and he was surprised
Lundin didn’t post very often. Fairbanks then asked Lundin
about his career goals, and informed him that management
would not forget what he had done, and he would not be able to
advance in the Company. He also stated that he thought
Lundin would leave after the election. (Tr. 444–446.) Accord-
ing to Fairbanks, he asked Lundin about his career goals be-
cause he does this for all employees, and when Lundin re-
sponded that he was unsure, the conversation ended. (Tr. 726–
727.)
III. DECISION AND ANALYSIS
A. Disciplinary Actions
1. Schlegel’s October 2010 suspension, demotion,
and corrective action plan
The complaint, at paragraphs 5 and 17, alleges that the Re-
spondent suspended Schlegel on October 27, 2010, and demot-
ed him and issued him a CAP on October 29, 2010, because he
engaged in prounion activities and protected, concerted activi-
ties in violation of Section 8(a)(1) and (3) of the Act.
Under Section 8(a)(1) of the Act, it is an unfair labor practice
for an employer “to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in Section 7. Rights
guaranteed by Section 7 include the right to engage in union
activities and “concerted activities for the purpose . . . of mutu-
al aid or protection.” Section 8(a)(3) provides that it is an un-
fair labor practice for an employer “by discrimination in regard
to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any
labor organization.”
The Respondent analyzes the allegations under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983), while the
Acting General Counsel provides alternative analyses under
Wright Line and Board case law applicable to disciplinary ac-
tions that result from protected activities. I address both theo-
ries below.
The Board has held that Wright Line does not apply to situa-
tions where a causal connection between the employee’s pro-
tected activity and the employer’s conduct that is alleged to be
unlawful may be presumed. See, e.g., Aluminum Co. of Ameri-
ca, 338 NLRB 20, 22 (2002); Atlantic Scaffolding Co., 356
NLRB 835, 839 (2011). An employee’s discipline inde-
pendently violates Section 8(a)(1), regardless of the employer’s
motive or a showing of animus, where “the very conduct for
which employees are disciplined is itself protected concerted
activity.” Burnup & Sims, Inc., 256 NLRB 965, 976 (1981).
When the conduct for which an employee is disciplined consti-
tutes protected concerted activity, “the only issue is whether
[that] conduct lost the protection of the Act because . . . [it]
crossed over the line separating protected and unprotected ac-
tivity.” Phoenix Transit System, 337 NLRB 510, 510 (2002),
enfd. mem. 63 Fed. Appx. 524 (D.C. Cir. 2003). As such, it is
first necessary to determine whether Schlegel engaged in pro-
tected concerted activity.
The Board has held that activity is concerted if it is “engaged
in with or on the authority of other employees, and not solely
by and on behalf of the employee himself.” Meyers Industries
(Meyers I), 268 NLRB 493 (21984), revd. sub nom. Prill v.
NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S.
948 (1985), on remand Meyers Industries (Meyers II), 281
NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Concerted
activity also includes “circumstances where individual employ-
ees seek to initiate or to induce or to prepare for group action”
and where an individual employee brings “truly group com-
plaints to management’s attention.” Meyers II, 281 NLRB at
887.
I find that Schlegel’s comment about the Respondent’s po-
tential need for a union, made in response to Riensche’s direc-
tion to Schlegel and Olsen to post with the bariatric stretcher,
was protected concerted activity. Though the Respondent ar-
gues that complaints about posting with the bariatric stretcher
were unique to Schlegel, the evidence, detailed above, shows
that paramedics complained about posting with the bariatric
stretcher both because of difficulty carrying and manipulating
it, as well as concerns that it is less secure for smaller patients.
There was also confusion at the crew level about the Respond-
ent’s policy on posting with the bariatric stretcher. I find,
therefore, that Schlegel’s remark to Riensche, a supervisor,
brought a group complaint to management’s attention. The
Respondent argues that Schlegel did not voice a complaint
about the bariatric stretcher to Riensche, but instead simply
asked Riensche whether or not he was supposed to post with
the bariatric stretcher. This argument fails, as I consider Schle-
gel’s question, Riensche’s response, and Schlegel’s reply as a
whole. See UPS Supply Chain Solutions, Inc., 357 NLRB 1295
(2011). Moreover, Weeks’ timeline of events that led to his
recommendation to terminate Schlegel notes, in regard to the
November 8, 2010 CAP, “While acting as a Field Training
Officer, Schlegel demonstrated unprofessional behavior in pre-
senting complaints to a supervisor.” (Tr. 963; R. Exh. 33.)
METRO-WEST AMBULANCE SERVICES 1049
It is abundantly clear the decision to suspend Schlegel for the
remainder of his shift on October 25 was driven by his interac-
tion with Riensche that morning. Weeks testified that the
comment prompted a meeting to “decide how to proceed with
the behavior he exhibited that day.” (Tr. 934.) Snyder’s recol-
lection of Riensche’s account of his October 25 conversation
with Schlegel was that Schlegel mentioned something about the
bariatric policy and a union, as well as the “Love ya” comment.
Snyder listed some other factors, detailed herein, that caused
her to be concerned about Schlegel’s behavior. There is no
doubt, however, that the decision to call Schlegel off his shift
and send him home on October 25 would not have occurred but
for his interaction with Riensche that same morning. None of
the supervisors who testified said they were contemplating
discipline about other enumerated prior events until Schlegel’s
exchange with Riensche on October 27. The evidence clearly
shows this interaction was the catalyst for Schlegel’s demotion
and the CAP on October 29.
Though, in the end it is a distinction without a difference un-
der the facts of this case, I will address the Respondent’s argu-
ment that it was the tone or manner rather than the content of
Schlegel’s remarks that led to the discipline. First, the record
reflects that the Respondent took umbrage at the content of
Schlegel’s remarks, not merely the tone. This is clear from
Snyder’s testimony that in response to the word “union” com-
ing up, she said, “Travis, why did you say that? You know how
they feel around here about that.” Had the substance of Schle-
gel’s speech been benign, this comment has no place. Snyder
could not recall how she, Weeks and Schlegel were discussing
the Union. Schlegel, however, recalled that he asked what he
did wrong and Weeks responded, “Union, you said union,”
prompting Snyder’s remark. Weeks denied making this com-
ment. I credit Schlegel’s account of this conversation. First, it
is the most inherently plausible. In addition, when describing
the exchange, Schlegel’s testimony was open, straightforward
and clear. By contrast, Weeks was asked verbatim whether he
made the specific comment Schlegel attributed to him, and he
replied, “No.” I find Weeks’ directed testimony less persuasive
than Schlegel’s narrative and open-ended description of what
transpired, particularly in light of Snyder’s admitted comment.
In addition, the CAP states, in relevant part, “On 10–27–10 you
made derogatory comments about Metro West Ambulance to
supervisor Kevin Riensche. These comments were made in
front of your trainee and were unprofessional.” (GC Exh. 13.)
Thus the CAP deems the unspecified comments themselves
derogatory and unprofessional.
The CAP also references an e-mail regarding charting.31 The
referenced email is a source of confusion. Schlegel sent two e-
mails on October 11, one regarding charting, and another re-
garding (ironically) the requirement to check emails. Riensche,
Weeks, and Snyder testified the CAP refers to the email regard-
ing the requirement to check emails, but this makes no sense, as
the CAP itself refers to an email about charting. In any event, I
find both emails constitute protected concerted activity. The

31 As articulated herein, I find that without the comments, Schlegel
would not have received the suspension, demotion or CAP. I include
the email(s) because the CAP, on its face, relies on it.
emails both address how to request compensation for work
employees are being asked to perform. The Respondent’s poli-
cies or practices regarding compensation for incidental tasks
concern employees generally and changed after the Union elec-
tion. (Tr. 446–447, 462–463.) Gregg’s notes from the January
2011 supervisors’ meeting reference senior paramedic Brandon
Klocko making a formalized inquiry about the email: “‘When
are we supposed to send these e-mails’ says Klocko.” (R. Exh.
24; Tr. 94.) As such, I find Schlegel’s emails constitute pro-
tected concerted activity under the Act. Anco Insulations, Inc.,
247 NLRB 612 (1980) (“ostensibly individual activity may in
fact be concerted activity if it directly involves the furtherance
of rights which inure to the benefits of fellow employees”).
The Acting General Counsel asserts that Schlegel’s com-
ments were also union activity, and thus are protected by the
Act. The Respondent counters that Schlegel did not engage in
union activity. In Randolph Div., Ethan Allen, Inc. v. NLRB,
513 F.2d 706 (1st Cir. 1975), enfg. 212 NLRB 148 (1974), an
employee asked the company’s assistant superintendent for
financial information, stating she was worried because there
was no union. The court found the statements were protected
union activity, stating:
If an employer were free to fire any employee who showed a
specific interest in the unionization of its employees, it could
effectively forestall the exercise of section 7 rights by exclud-
ing from the work force all who showed any interest in exer-
cising them. If it could so extinguish seeds, it would have no
need to uproot sprouts.
Id. at 708. See also Signal Oil & Gas v. NLRB, 390 F.2d 338,
343 (9th Cir. 1968), enfg. 160 NLRB 644, 649 (1966). I like-
wise find that Schlegel’s remarks were protected union activity.
Because Schlegel was disciplined for engaging in protected
activity, I turn to the issue of whether Schlegel’s remarks lost
the Act’s protection. An employee’s leeway for impulsive
behavior when engaging in protected activity is not without
limit, and is subject to the employer’s right to maintain order
and respect in the workplace. See Piper Realty Co., 313 NLRB
1289, 1290 (1994); NLRB v. Ben Pekin Co., 452 F.2d 205, 207
(7th Cir. 1991); NLRB v. Power Tool Co., 351 F.2d 584, 587
(7th Cir. 1965). The standard for determining whether speci-
fied conduct is removed from the protections of the Act is
whether the conduct is “so violent or of such serious character
as to render the employee unfit for further service.” St. Marga-
ret Mercy Healthcare Centers, 350 NLRB 203, 204–205
(2007), quoting NLRB v. Illinois Tool Works, 153 F.2d 811,
815 (7th Cir. 1946); See also Hawthorne Mazda, 251 NLRB
313, 316 (1980), and cases cited therein; Severance Tool Indus-
tries, 301 NLRB 1166, 1170 (1991).
Even assuming it was the manner in which Schlegel uttered
his comments rather than the words themselves that led to the
discipline, Schlegel’s remarks still retained the Act’s protec-
tion. The Board has consistently held that comments uttered in
the course of concerted, protected activity that fall short of
conduct that is truly insubordinate or disruptive of the work
process do not strip the employee of the protections of the Act.
See Aroostook County Regional Opthalmology Center, 317
NLRB 218, 220 (1995), enf. denied in part 81 F.3d 209 (D.C.
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cir. 1996), (Employees complaints on the workroom floor
about schedule changes loudly and in “a tone of voice that con-
veyed their distress and exasperation” did not lose Act’s protec-
tion).32
While the Respondent avers it was concerned about the
manner in which Schlegel expressed his displeasure with bari-
atric policy, not the content of what he said, I note first that
only Schlegel, Riensche, and Olsen were present. Significant-
ly, Olsen described Schlegel’s tone of voice as normal, and did
not perceive Schlegel’s remarks as angry or disrespectful to-
ward Riensche. In his affidavit, Olsen stated, “And although he
sounded disgusted, we did not discuss they gurney.” At the
trial, when asked if Schlegel sounded disgusted when convey-
ing Zimmer’s instruction, Olsen testified, “Disgusted? You
know, I really can’t say if it was disgusted or just like, ‘Really,
we’re doing it this way?’ It sounds like it was new to him. And
it was new to me too.” (Tr. 343.) I credit Olsen’s testimony, as
it is consistent with Schlegel’s. Moreover, his demeanor was
confident, open and straightforward. In addition, I credit Ol-
sen’s testimony because he has nothing to gain or lose by being
forthcoming and truthful. He left Metro-West voluntarily to
pursue another job. There was nothing in his demeanor or in the
evidence presented to indicate he harbored a grudge against the
Respondent.33 After making his remarks, Schlegel promptly
complied with Riensche’s order to post with the bariatric
stretcher. I don’t doubt that Schlegel’s remarks upset Riensche.
However, Schlegel’s comments, though admittedly sarcastic,
were simply not egregious enough to lose the Act’s protection.
See Lana Blackwell Trucking, LLC, 342 NLRB 1059, 1062
(2004) (Remarks did not lose protection even though the man-
ager subjectively believed that the employee was rude, disre-
spectful and embarrassed her in front of other employees.).
Neither party’s brief discusses the factors set forth in Atlantic
Steel Co., 245 NLRB 814, 816 (1979), i.e.: (1) the place of the
discussion; (2) the subject matter of the discussion; (3) the na-
ture of the employee’s outburst; and (4) whether the outburst
was, in any way, provoked by an employer’s unfair labor prac-
tice. Though I don’t think a detailed Atlantic Steel analysis is
required under the facts here, I will briefly address the four
factors. See Fresenius USA Mfg., 358 NLRB 1261, 1264–1265
fn. 8 (2012). First, the remarks occurred while Schlegel was
working and his trainee was present, not in the context of a
grievance or contract negotiations (as there is no union), or at a
meeting the Respondent called to address a work issue. This
weighs in the Respondent’s favor. Second, the subject matter
of the discussion was the Respondent’s bariatric gurney policy
and the potential need for a union. The evidence shows that
there was ongoing concern about the bariatric policy in particu-
lar. Moreover, Boxman conceded that there had been more
general communication problems between employees and man-
agement, with employees feeling they were not being heard,
prompting the decision to implement Just Culture. Because the

32 Though the court of appeals reversed the Board’s decision in part,
its rationale focused on the setting of a small hospital and the concern
that patients should not be subjected to the employees’ complaints.
33 I note that Olsen still worked for Metro-West when he gave his
affidavit.
subject matter involved concerted protected activity and the
potential need for a union, the second factor strongly militates
in favor of finding that Schlegel’s remarks retained Act’s pro-
tection. See Fresenius USA Mfg., supra at 1266. Turning to
the third factor, the nature of the outburst, there was no out-
burst, and the nature of Schlegel’s spontaneous remarks, while
sarcastic, was extremely mild.34 The brief exchange neither
disrupted work operations nor undermined Riensche’s authority
to direct the crew to post with the bariatric stretcher. This fac-
tor weighs strongly in favor of continued protection. Finally,
while Schlegel’s remarks were not provoked by an unfair labor
practice, they were provoked by Schlegel’s frustration, shared
by others, over a term or condition of employment. Consider-
ing the Atlantic Steel factors and the totality of the circum-
stances, I easily find that Schlegel’s remarks retained the Act’s
protection.
Although I find that Schlegel would not have been disci-
plined for sending the October 11 emails absent his October 27
remarks, I will address them here briefly. There is no colorable
argument to support removing either email from the Act’s pro-
tection. It is not apparent from the content of the emails what
parts the Respondent perceived as objectionable and/or why.
When asked what was “snide” about Schlegel’s email in re-
sponse to the operations update reminding employees to check
their email, Weeks struggled to articulate a response, stating:
Well, it’s our policy and our practice and apparently based on
this known to Travis the time adjustment forms are specifical-
ly filled out for extra time you need at work for completing
documentation. We make email and bulletins available to the
crews while they are on duty. And so this comment was a re-
sponse to this operations update where he said, some type [of
central]35—he was asking for [a central] bulletin board and
then he said, as it’s a requirement to check emails, where
should we mark that on our time adjustment forms.
Under the relationship we were having with him, that wasn’t
deemed as an appropriate way to request that information and
Travis—we had shared with everybody the proper way to
check your emails. We didn’t require people to check their
emails. It was a way we communicated. We communicated
through a lot of different channels. And so there was really no
reason to wonder about the policy of how to put that on a time
adjustment form.
(Tr. 941.) Weeks described Schlegel’s email about charting as
another example of the same type of behavior. Snyder testified
that the supervisors perceived that Schlegel was being a smart
aleck about the time adjustment forms rather than being genu-

34 Schlegel testified that he made the “love ya” comment to lighten
the mood and let Riensche, who he had worked with for 13 years and
considered a friend, know that he still loved him. (Tr. 201.) While I
don’t believe Schlegel made the comment in a serious attempt to con-
vey his love for Riensche, I do credit his testimony that his intent was
to make a lighthearted comment following the exchange about the
bariatric policy. This is consistent with Olsen’s perception of the
comment as joking.
35 “Of central” and “a central” are erroneously transcribed as “es-
sential.”
METRO-WEST AMBULANCE SERVICES 1051
inely curious, but did not articulate what about the email led the
unnamed supervisors to this conclusion. (Tr. 957–958.) Ac-
cordingly, I find the emails retain the Act’s protection. Be-
cause Schlegel was disciplined for engaging in protected activi-
ty that did not lose the Act’s protection, I find that the Re-
spondent violated the Act as alleged in complaint paragraphs 5
and 17.36
Alternatively, I find Schlegel’s discipline was discriminatory
in violation of Section 8(a)(1) and (3) under a Wright Line
analysis.37 The Acting General Counsel has the initial burden
to prove, by preponderant evidence, that Schlegel engaged in
protected activity, the employer knew about it, and the adverse
employment action at issue was motivated by it. If the Acting
General Counsel is able to make such a showing, the burden of
persuasion shifts to the employer “to demonstrate that the same
action would have taken place even in the absence of the pro-
tected conduct.” Wright Line, supra at 1089; see also Manno
Electric, 321 NLRB 278, 280 fn. 12 (1996). The employer
cannot carry this burden merely by showing that it also had a
legitimate reason for the action, but must persuade that the
action would have taken place absent the protected activity by a
preponderance of the evidence. Dentech Corp., 294 NLRB 924,
956 (1989).
As discussed above, I find that Schlegel engaged in protected
concerted activity and union activity. The protected comments
directly involved Supervisor Riensche, and Managers Weeks
and Snyder both knew about it. The emails likewise directly
involved supervisors.
The Respondent argues that there is no evidence of animus,
and no link between Schlegel’s protected activity and his disci-
pline. I disagree. In this case there is direct evidence in the
form of credited testimony, detailed above, that Schlegel’s
discipline resulted from speaking about the need for a union in
front of a trainee. The email relied upon in the CAP did not
lead to discipline at the time Schlegel sent it. Because it did not
lead to discipline, it is axiomatic that, absent some evidence
explaining the delay, it would not have led to discipline on its
own or combined with events that had already transpired.
Nonetheless, regardless of which email the CAP references, I
have found both to be protected concerted activity, and both
were directed at supervisors.
Unlawful employer motivation may also be established by
circumstantial evidence and may be inferred from several fac-
tors, including: the Respondent’s known hostility toward union-
ization coupled with knowledge of an employee’s union activi-
ties; pretextual and shifting reasons given for the employer’s
actions; the timing between an employee’s union or other pro-
tected activities and discipline; and the failure to adequately

36 I also find The Respondent’s actions of suspending, demoting and
subjecting Schlegel to a CAP for his protected comments is “inherently
destructive of employee rights” under existing precedent. Signal Oil &
Gas, supra at 343–344. See also Kaiser Engineers, 538 F.2d 1379,
1386 (9th Cir. 1976), enfg. 213 NLRB 752 (1974); Knuth Bros., 229
NLRB 1204, 1205 (1977).
37 Though I do not find Wright Line applies, my decision includes a
brief Wright Line analysis in the event a reviewing authority disagrees.
I specifically find this was not a dual motivation case, as none of the
reasons cited in the CAP are legitimate.
investigate alleged misconduct. Temp Masters, Inc., 344 NLRB
1188, 1193 (2005); Promedica Health Systems, Inc., 343
NLRB 1351, 1361 (2004).
Here, the timing of Schlegel’s discipline on the heels of his
protected activity, the widely known sentiment that Metro-West
does not want to have a union represent its employees, and
other conduct indicating antiunion sentiment discussed infra,
supplement the persuasive direct evidence of unlawful motiva-
tion. The Respondent’s statements about Schlegel expressing
“increasing irritation with his work environment” and similar
comments likewise reveal animus. See Phillips Petroleum Co.,
339 NLRB 916, 918–919 (2003) (Letter stating, “you have
indicated frustration with regard to the Company’s time off
policies, both through argumentative discussion with Company
personnel and in writing to the Labor Relations Superinten-
dent” indicate animus”). Additionally, the instruction in the
CAP stating, “You will address your concerns about Metro
West Ambulance to the Supervisor . . .” and the requirement
that his communications, including email, be “supportive”
show that the Respondent takes a dim view of protected con-
certed activity among its employees. Finally, other violations
of the Act specifically found and detailed in this decision
demonstrate animus. See Mesker Door, Inc., 357 NLRB 591,
592 (2011). Accordingly, I find the Acting General Counsel
has sustained its initial burden.
In response, the Respondent argues that the discipline was
for Schlegel’s manner and tone, rather than the content of his
speech, and that it would have taken the same action even if
Schlegel never said the word “Union.” As set forth above, this
is unconvincing and I find it to be pretext, notwithstanding the
fact that Schlegel was engaged in concerted protected activity.
The CAP references Schlegel’s October 13 letter of counsel-
ing for tardiness. There is no record evidence that Schlegel was
tardy following the letter of counseling, however. The letter of
counseling warned that the next infraction of the Company’s
policy on excessive tardies, defined at the relevant time as more
than three tardies in a 90-day period, would result in a repri-
mand. While there is no evidence that Schlegel had sustained
further infractions, the CAP expanded his improvement goal for
attendance from having no further incidents of being tardy three
times in a 90-day period to maintaining acceptable attendance
per Metro-West Policy. Accordingly, I find that the Respond-
ent has not presented any legitimate reason for issuing addi-
tional discipline based on any additional violation of its then-
current excessive tardiness policy.
Finally, Snyder testified she also considered an occasion
where Schlegel came to work with a wrinkled uniform, his
failure to fill out observation reports correctly, and his failure to
attend the last two FTO meetings. Schlegel missed one of the
two FTO meetings because he was working. None of these
incidents were cause for discipline at the time, and they are not
referenced in the CAP. See Care Manor of Farmington, 314
NLRB 248, 255 (1994). Moreover, even if some of the refer-
enced incidents might have constituted legitimate cause for
discipline, “an employer cannot carry its burden of persuasion
by merely showing that it had a legitimate reason for imposing
discipline against an employee,” Hicks Oils & Hicksgas, 293
NLRB 84, 85 (1989), since “the policy and protection provided
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by the . . . Act does not allow the employer to substitute ‘good’
reasons for ‘real’ reasons.” Hugh H. Wilson Corp. v. NLRB,
414 F.2d 1345, 1352 (3d Cir. 1969), cert. denied 397 U.S. 935
(1970). The evidence presented, particularly the timing of
events, leads me to soundly reject the Respondent’s unsupport-
ed contention that Schlegel’s “additional performance issues
would have resulted in the [CAP]” regardless of his protected
remarks. (R. Br. 30.) Accordingly, I find that absent Schlegel’s
comments to Riensche on October 27, he would not have been
suspended, demoted, or issued the CAP. As such, I find the
Acting General Counsel has sustained its burden to prove that
the Respondent violated Section 8(a)(1) and (3) of the act as
alleged.
2. Schlegel’s March 2011 corrective action plan
The complaint, at paragraphs 6 and 17, and 18 alleges that
the Respondent violated Section 8(a)(1), (3), and (4) when, on
or around March 7, 2011, the Respondent extended the CAP for
two additional months. The Acting General Counsel contends
this was in retaliation for the charge the Union filed on Schle-
gel’s behalf on February 23, 2011.
The CAP was based on the late January/early February pa-
tient complaint that Schlegel was rude to her when trying to
convince her she needed to go to the hospital.
The Wright Line analysis applies to this allegation. Gary En-
terprises, 300 NLRB 1111 (1990); General Die Casters, Inc.,
358 NLRB 742, 744 (2012). It is undisputed that by March 7,
2011, managers and supervisors knew about Schlegel’s union
activity, including the MWA Medicguy Facebook page and the
February 23 unfair labor practice charges. The question turns
to motivation. I incorporate my findings regarding animus
above. As previously noted, unlawful motivation is often es-
tablished by circumstantial evidence, taking into account a
variety of different factors including consistency of discipline
among employees and adequacy of any employer investigation.
The Acting General Counsel submitted evidence of the Re-
spondent’s treatment of other employees with similar patient
complaints. For example, in June 2011, a customer called to
say that an older paramedic was rude and short with her, he did
not address her discomfort, and he disregarded her feelings.
(GC Exh. 50 p. 1.) Weeks said they looked into it and there
was nothing the paramedic did wrong, and it was the patient’s
perception that the crew did not do enough to alleviate her pain.
Addressing the complaint that the older paramedic was rude
and short, Weeks’ best guess, after talking with the crew, was
that the paramedic was not rude or short, but that the patient
was in pain and didn’t want to hear an explanation. The para-
medic received no discipline. (Tr. 975–977.)
By contrast, though Zimmer spoke with Chan generally
about the incident Chan and Schlegel submitted incident re-
ports, there was no investigation aimed at determining the pro-
priety of Schlegel’s behavior. The notes from Zimmer’s con-
versation states, “After talking with the crew they stated that
they had to get stern with her to get her to go to the hospital”
and then convey the patient’s perception that Schlegel “made
her go” (emphasis added). Chan was the only witness present,
and she testified that she never perceived Schlegel as rude.
Chan perceived Schlegel’s efforts as consistent with their train-
ing and consistent with how she and other paramedics handle
similar situations with reluctant patients. I found Chan to be a
credible witness. Her demeanor during her testimony was
calm, and her responses about this incident were open-ended
and appeared sincere. Moreover, at the time of her testimony,
Chan had recently been promoted to senior paramedic, so I
cannot discern any reason for her to have testified out of anger
or bitterness toward her employer. As a current employee testi-
fying against her own pecuniary interests, I find her testimony
to be particularly reliable. Gold Standard Enterprises, 234
NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB 1304 fn.
2 (1961); Gateway Transportation Co., 193 NLRB 47, 48
(1971); Federal Stainless Sink Div. of Unarco Industries, 197
NLRB 489, 491 (1972). Chan was never interviewed as part of
an investigation to determine whether the patient’s complaint
against Schlegel was legitimate or whether it was “the patient’s
perception.”38 The lack of any meaningful investigation to
discern the reliability of the patient’s complaint, particularly in
light of her adamant insistence that she could not afford
transport, points to pretext.39
The Respondent issued a CAM to senior paramedic Twyla
Wells on December 31, 2011, for a series of complaints she
was rude. She received a CAP on March 17, 2012 (signed
March 27), for again being very rude to the staff at a certain
facility, prompting them to ask that she never come back. The
CAP referenced multiple similar complaints in the past, with
the most recent being in December. It also noted that Wells
and her partner had discussed Wells’ behavior, and the partner
had offered to give constructive feedback when she perceived
Wells’ interactions with patients or customers needed im-
provement. (R. Exh. 31; Tr. 918–921.) Unlike in Schlegel’s
case, Wells had multiple incidents of corroborated rude behav-
ior prior to receiving a CAM. Schlegel had one prior remote
incident of swearing at a member of the public who told him it
was not healthy to be so fat. Unlike with Wells, whose partner
agreed to tell her when she her behavior crossed the line, Chan
did not think Schlegel was rude. In another instance, the Re-
spondent did not credit a complaint that Megan Rye thumped a
patient on the head and told him to shut his big fat mouth, not-
ing the patient had a psychiatric history, was altered, and had
been fighting with police before the incident. (R. Exh. 50; Tr.
980.) Here, the patient was extremely reluctant to go to the
hospital because she could not pay the bill. Yet, her version of
events was credited, despite the fact that Chan would have re-
futed it if asked.40

38 I note that Schlegel is a large man with a large voice that projects
in a relatively bold manner. Chan, by contrast, is much smaller and
softer-spoken.
39 The Acting General Counsel asks me to draw an adverse infer-
ence and find that Riensche assured Schlegel no discipline would ensue
from the patient complaint. (GC Br. p. 53.) I decline to do this, as
Schlegel’s testimony prompting the request is equivocal. (Tr. 111.)
40 Supervisor Larry Torres issued a CAM to Randy Johnson for be-
ing rude on a nonemergency call. There was no testimony or other
evidence regarding whether this was the first complaint about Johnson,
whether there was an investigation, or the nature of Johnson’s com-
ment. (R. Exh. 27, p. 5.)
METRO-WEST AMBULANCE SERVICES 1053
On March 2, 2011, Frank Wallender received a CAM after a
patient’s sister called to say he acted too “boisterous” and
“goofy” while picking up a patient, and inappropriately talked
about playing golf with the patient. The patient was a
nonemergency head injury patient. The patient’s sister thought
some of the random topics Wallender brought up were not ap-
propriate, causing the already mentally impaired patient to be
further confused. Wallender agreed that he was boisterous, and
stated he was trying to cheer the patient up because she looked
depressed. The sister was satisfied with Metro-West’s service
overall, and no further action was required on Metro-West’s
part. (R. Exh. 27, pp. 7–8.) In Wallender’s case, it was not
disputed that he acted boisterous. In Schlegel’s case, in the
setting of trying to convince a patient with dangerous vital
signs to go to the hospital, neither he nor Chan perceived his
behavior as rude or out of the ordinary.
In August 2009, a family perceived that the crew was rude to
them, and requested that the bill be waived. According to
Weeks, the crew was just trying to communicate that there was
an order not to transport the patient. The crew was not disci-
plined. The Respondent nonetheless waived the bill after in-
vestigating. (Tr. 982–84; GC Exh. 50 pp. 10–11.) Schlegel
and Chan were trying to communicate the gravity of the pa-
tient’s vital signs and the need for her to go to the hospital. In
both this case and Schlegel’s, the complaint to Metro-West was
that the paramedic was rude or abrupt. In the August 2009
case, the need to communicate the order to the family satisfied
the Respondent that the crew was not rude or abrupt. In Schle-
gel’s case, the need to convince the patient to go to the hospital,
an admittedly clinically correct course of action, did not. Based
on the foregoing, I find the Respondent investigated other em-
ployee complaints with a more even hand, was more receptive
to the respective employees’ versions of events, and disciplined
Schlegel more harshly than other employees.
The timing of the CAP is also suspicious. The complaint oc-
curred on February 2, yet Schlegel did not receive the CAP
until March 7, over a month later. In the interim, the Union
filed the February 23 charges, Schlegel participated in a picket
line, hung union posters on his locker, and revealed he was
MWA Medicguy. Delay can be evidence of pretext. Doctor’s
Hospital of Staten Island, Inc., 325 NLRB 730, 738 (1998);
New Haven Register, 346 NLRB 1131, 1143 (2006) (suspen-
sion on January 7, 2005, for events that occurred on December
23–24, 2004). Riensche attributed the delay to the need to con-
sult with LeSage and then wait until he and Schlegel worked
the same shift. The first CAP, however, was issued in a matter
of days, and was presented to Schlegel during a meeting he was
called into on an off-day. Moreover, such a delay provided the
Respondent with time to conduct an in-depth good-faith inves-
tigation, or an in-depth good-faith “root cause analysis,” yet
this plainly did not occur.
I view the foregoing in conjunction with significant evidence
of the Respondent’s animus addressed throughout this decision.
Most telling is the March 4, 2011 letter Boxman and Fuiten
addressed to Schlegel, but sent to all employees, just 3 days
prior to the discipline. The letter touts Just Culture and chastis-
es the Union for spreading misinformation and trying to drag
the company down. It cites the February 23 unfair labor prac-
tice charges as the Union’s latest effort to harm the Company’s
reputation. (GC Exh. 23.) Various other communications the
Respondent’s managers sent also conveyed opposition to the
Union, as well as frustration over the negative impact the Un-
ion’s charges and/or objections filed with the Board have had
on the Company’s ability to move forward. (R. Exhs. 9, 10, 17;
GC Exh. 53.)41 In light of this, the Respondent’s assertion that
decision-maker Boxman was free from union-related animus
toward Schlegel lacks credence. In addition, I find that Lee’s
statement to Olsen that if the Union came in, he probably
would not have a job is evidence of animus.42 See Metro One
Loss Prevention Services Group, 356 NLRB 89, 89, 117
(2010); Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S.
411, 416 (1960). Finally, there is other evidence of union ani-
mus discussed below in the context of alleged threats and sur-
veillance, as well as the discipline for referencing the Union in
conjunction with Schlegel’s protected activity, discussed
above.43
The only behavior not related to the patient complaint cited
in the March 2011 CAP is Schlegel’s failure to check in with
his supervisor twice a month as required by the November 2010
CAP. As the Respondent did not provide Schlegel with a copy
of the November CAP until the following March, the only op-
portunity Schlegel had to review it was during the meeting
where he received his first CAP and learned he had been de-
moted. Under such circumstances, I find the Respondent can-
not legitimately fault Schlegel in light of its own oversight.
Accordingly, I find that the Acting General Counsel proved, by
preponderant evidence, that the March 2011 CAP was issued in
retaliation for his Union activity in violation of Section 8(a)(1),
(3), and (4).
3. Schlegel’s July 2011 performance improvement plan
Paragraphs 10(a), 17, and 18 of the complaint allege that the
Respondent violated Section 8(a)(1), (3), and (4) of the Act
when on or around July 11, 2011, the Respondent issued Schle-
gel a performance improvement plan (PIP).
Schlegel was on FMLA leave from May 17 to July 11, 2011.
The day he returned, Riensche and Weeks presented him with a
PIP, citing three instances of patient injury within a year result-
ing from Schlegel’s inattentiveness and lack of situational
awareness. The three incidents, detailed above, were: (1) the
patient’s elbow laceration in June 2010; (2) the gurney safety
latch failing to catch in March 2011; and (3) the curb strike in
April 2011.
The Wright Line framework applies here, and I hereby in-
corporate my findings above regarding union activity and the
Respondent’s knowledge of it. I likewise incorporate my pre-

41 P. 8 of GC Exh. 53 was not sent to employees.
42 This is not alleged as a threat in violation of Sec. 8(a)(1), but the
evidence does not show that it was based on any reasonably calculated
objective facts, and it would reasonably be understood as a threat.
NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).
43 The CAP itself instructs future communications to be “profes-
sional, respectful, and supportive.” The “supportive” requirement, in
the context of Schlegel’s union leadership and his past discipline for
showing disagreement with the bariatric stretcher policy, strikes me as
coercive.
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vious findings regarding animus. Other evidence of animus
around the time period relevant to the PIP include the Respond-
ent’s April 2011 actions of unlawfully prohibiting employees
from wearing pins, including Teamsters pins, as discussed be-
low.
In addition, Riensche undertook an audit of Schlegel’s at-
tendance from April 2010 through March 2011. Though
Riensche reviews his employees’ attendance monthly and had
disciplined other employees for attendance, this was the first
employee for whom he examined attendance over the course of
a year. (Tr. 880–881, 909–910; R. Exh. 30.) Boxman testified
that Riensche selected Schlegel for the annual attendance audit
because Schlegel was previously disciplined for tardiness, and
the annual review was part of the CAP. (Tr. 1026–1027.)
Riensche offered no explanation of why he selected Schlegel
for the audit. An annual attendance audit is not mentioned in
the CAP. In any event, as explained above, the CAP’s imposi-
tion of greater compliance requirements for Schlegel’s attend-
ance, even though he had no additional infractions of excessive
tardies in a 90-day period per his October 13 counseling, was
pretext for retaliation. Moreover, Boxman’s testimony that
other employees did not have an absenteeism or tardiness is-
sues, thus justifying Riensche’s audit of Schlegel, is patently
false. Though attendance and the PIP are somewhat attenuated,
the audit occurred during the same general time period. Weeks
referenced the annual attendance audit when recommending
Schlegel’s termination in April, and Riensche referenced it
when recommending Schlegel’s termination in May.44 The
attendance audit demonstrates that the Respondent was taking
novel steps to find fault with Schlegel in and around the time he
received the PIP.
The Respondent asserts that the PIP was justified because
Schlegel was responsible for three patient injuries within a
year. Schlegel was not disciplined for the patient elbow lacera-
tion in June 2010. He voluntarily reported it to his supervisor,
and it did not engender a patient complaint. Riensche was not
Schlegel’s supervisor when it occurred and had no involvement
with it. (Tr. 885.) Particularly in light of the attendance audit, I
find it more likely than not that Riensche discovered it in con-
nection with the Respondent’s efforts to build a case to support
Schlegel’s termination. This finding is bolstered by the fact
that in his May 16 recommendation to terminate Schlegel,
Riensche referenced Schlegel cursing at the pedestrian in May
2009, even though this remote event was resolved at the time,
and was not cited in either previous CAP. See Clinton Food 4
Less, 288 NLRB 597, 598 (1988) (The respondent’s probe “into
remote events that were satisfactorily resolved at the time to
show unsatisfactory conduct” reflects on genuineness of moti-
vation.).
Schlegel was not contemporaneously disciplined when the
gurney safety latch failed to catch in March 2011. As the PIP
itself indicates, there were no previous attempts at coaching or
counseling. (GC Exh. 32.) Chan was never disciplined for the
gurney latch incident, even though she was operating the side

44 It is not clear whether or not the tardies for which Schlegel was
disciplined in October 2010 factored into this calculation.
of the gurney where the latch failed to catch.45 Weeks’ reason
for this was that it was an isolated incident. (R. Exh. 25, p. 35.)
Chan, however, had already received a written reprimand and a
suspension in 2010 for two separate incidents that involved a
lack of situational awareness. Chan later received a PIP in
August 2011 for falling asleep at the wheel and hitting the
highway median, and erroneously telling a family member a
patient had died. The gurney incident was not referenced in
Chan’s PIP. (R. Exh. 34.) Thus Weeks’ stated rationale for not
disciplining Chan fails to withstand scrutiny. Finally, Zimmer
determined that the patient did not sustain a head injury, and
informed the facility to take him off the injury watch list. (Tr.
828–829.) In light of the foregoing, the Respondent’s reliance
on an injury that a supervisor determined did not occur to single
out Schlegel for discipline strongly compels a finding of pre-
text.
As for the curb strike, there is also evidence of pretext. First,
Weeks attempted to fault Schlegel for under-reporting the im-
pact of the curb strike. He testified that Schlegel told Supervi-
sor Roth he had just “tapped the curb.” (Tr. 950.)
Yet Roth’s email to Weeks reflects that Schlegel told him he
struck the curb, and “[w]hen the tires hit the curb the whole
ambulance was jarred from the impact.” (R. Exh. 25, p. 26.) In
Schlegel’s incident report, he likewise noted that the “patient
was jostled hard.” Weeks’ attempt to fault Schlegel for mini-
mizing the impact of the strike is plainly disingenuous.
Weeks also faulted Schlegel for minimizing the patient’s in-
jury. A close look at the facts, however, fails to support this.
Chan assessed the patient with discomfort in her left hip due to
recent hip replacement surgery at 8:30 a.m., prior to the start of
transport at 8:39 a.m. At the time the ambulance struck the
curb, the patient had no complaints. She later complained of
hip pain, but was uncertain whether it was just her normal hip
pain, was from the normal bouncing from transport, or from the
curb strike. Chan assessed no abnormalities aside from tender-
ness from her surgery. In other words, Chan assessed no addi-
tional injury. (GC Exh. 34.) Schlegel was driving, and the fact
that she did not tell Schlegel about the patient’s complaint of
hip pain makes sense, as the patient could not tell whether it
was just her ordinary pain and Chan’s exam findings were the
same as her initial assessment. According to Lee’s notes, the
patient’s husband did not complain about his wife having hip
pain, but instead said she had back pain since the accident, and
he asked to have the bill waived.46 He also stated that his wife
“flew up on the gurney.” (R. Exh. 25, p. 25.) Chan was not
interviewed about the incident. Her EMS report reflects that
the patient was well restrained and did not fall out of the gurney

45 The Respondent points out that, as the senior paramedic, under
the Respondent’s policies, Schlegel was responsible for the ambulance.
The evidence shows, however, that Andrew Brookman, a junior para-
medic, hit a building and did not report it. He received a reprimand for
it. The senior paramedic was counseled but not disciplined because she
was not the one driving. (GC Exh. 54; Tr. 971–972.) In addition, the
senior paramedic and junior paramedic who were involved in an injury
resulting from a gurney tip both received the same discipline, letters of
counseling. (R. Exh. 27, pp. 18–19.)
46 Lee’s notes from the call state the patient was transferred to the
ICU in May, but do not give a reason.
METRO-WEST AMBULANCE SERVICES 1055
at any point, and it makes no mention of back pain. (GC Exh.
34.) Chan was the person closest to the patient during the
transport, and the only person to view the impact on the patient
and to assess her. The failure to interview her as part of a
good-faith in-depth investigation is baffling and highly indica-
tive of pretext. Clinton Food 4 Less, 288 NLRB at 598. Schle-
gel’s PIP was for patient injuries. Therefore Weeks’ post hoc
rationale for the Respondent’s failure to interview Chan, i.e.,
she was attending to the patient and was not driving, does not
hold up. (R. Exh. 25, p. 35.)
Next, though no evidence was presented on whether hitting
standing water would serve as some sort of mitigating factor,
precipitation the day of the curb strike is relevant for credibility
and to show pretext. Chan and Schlegel both testified it was
raining. Weeks, who said he spoke to the patient’s husband on
an unspecified date, said the husband told him there was no
standing water anywhere.47 (Tr. 951.) Lee’s notes of her May
5 call from the husband differ, and report that the husband stat-
ed he did not think there was enough water in a puddle in the
tunnel to cause the ambulance to strike the curb. Weeks testi-
fied that he and other unidentified individual(s), out of curiosi-
ty, looked at the national weather service report for that day and
only 4/1000 inch of rain fell during the 24-hour period before
the incident. (Tr. 951–952.) The National Weather Service’s
report on rainfall for the date in question, however, shows that
in the 2 hours preceding the transport, there was 0.29 inch of
rainfall, and that it had rained steadily since midnight.48
(GC Exhs. 64, 65.)
Finally, there is evidence of more lenient treatment of anoth-
er paramedic. Andrew Brookman made multiple clinical errors
along with other transgressions between July 2009 and March
2011. On July 23, 2009, while still a junior paramedic, he hit a
restaurant’s gutter with his ambulance, causing damage to the
restaurant and the vehicle. He failed to report this incident and
received a reprimand when it was discovered. As a senior par-
amedic in November 2009, Brookman applied the wrong proto-
col to a cardiac patient, resulting in her death. His senior para-
medic status was suspended. Around June 11, 2010, having
regained his senior paramedic status, Brookman administered
the wrong dosage of the medication lidocaine to a patient. He

47 Weeks’ testimony of his conversation with the patient does not
reference any date. His account is somewhat confusing. Weeks testi-
fied he received a call from the patient’s husband wondering why no-
body from the Respondent had contacted him because he had told
Schlegel to report the incident and have someone from the Company
call him. Lee’s May 5 notes document the husband calling to complain
about the transport, and do not reference the husband stating that he
talked to Weeks. From Weeks’ testimony, it appears the call to Lee
preceded the call to Weeks. (Tr. 950.) Lee’s notes document that the
patient told her he had advised Schlegel he needed to report the incident
to the Company. They do not, however, state that Schlegel also told the
husband that someone from the Company would contact him. Lee’s
notes do not hint that the patient had expected a call. If the patient was
concerned about this, it is extremely odd that he would not raise it with
the supervisor he talked to first.
48 I took judicial notice of the National Weather Service report for
the date in question. The Respondent’s counsel was shown an unre-
dacted prior to the Acting General Counsel admitting a copy with the
date redacted. (Tr. 1024–1025.)
was sent for training, was relieved of primary duty for cardiac
calls, and was warned that further infractions regarding patient
treatment could result in revocation of his senior status. In July
2010, Brookman improperly activated emergency life flight
transport for a patient who had not shown signs of life for about
an hour. No action was taken. In March 12, 2011, Brookman
received a coaching memorandum when he failed to use a
backer, resulting in an accident.49 (Tr. 854–855, 994; GC Exhs.
55–58.) Brookman only received temporary revocation of his
senior paramedic and a CAM despite his repeated errors.
In light of the evidence above, I find the Acting General
Counsel has established that the Respondent violated Section
8(a)(1), (3), and (4) of the Act as alleged.
4. Schlegel’s August 2011 corrective action memorandum
The complaint allegations in paragraphs 10(b) and (c), 17,
and 18 state that on or about August 1, 2011, James and
Riensche issued Schlegel a Corrective Action Memorandum;
and on or about August 8, 2011, Weeks increased the level of
discipline to a Corrective Action Plan, in violation of Section
8(a)(1), (3), and (4) of the Act.
The Wright Line analysis applies here, and I incorporate my
findings above regarding Schlegel’s union activity, the Re-
spondent’s knowledge of it, and animus.
The alleged August 8 CAP is not in evidence and the Acting
General Counsel does not argue that it was issued. I therefore
recommend dismissal of complaint allegation 10(c).
The Respondent’s stated rationale for issuing Schlegel the
CAM is that he and his partner, Watkins, were parked more
than .2 miles from their assigned post, and he did not notify
dispatch of this. The evidence overwhelmingly establishes that
this was used as a pretext to discipline Schlegel. According to
Boxman and Snyder, it is permissible to post .2 miles away
from the intersection that is the official posting site. The evi-
dence, detailed above, shows that employees, including Snyder,
routinely did not abide by this parameter, and/or were unaware
of it. Snyder and other employees posted .61 miles from post
13, and Snyder considered this to be on-post. (Tr. 160–163,
235, 744; GC Exhs. 37–40.) While Snyder may have been
trained and trained others to park within .2 miles of the as-
signed post, her practice at post 13 shows that this training was
not strictly enforced.
Olsen, who worked for Metro-West from July 24, 2010, until
November 30, 2011, observed that nobody ever parked exactly
at the assigned post, and FTO Mark Francum had told him it
was okay to post within a mile of the posting location.50 Olsen
sometimes parked at a Quik Mart about a mile from post 1. I
credit Olsen’s testimony, based on his confident, open and
straightforward demeanor. He left Metro-West voluntarily to
pursue another job, and is a completely disinterested witness.

49 The Acting General Counsel requests that I draw an adverse in-
ference based on the Respondent’s failure to produce accident reports.
(GC Br. 55.) Although it may be warranted, because I can base my
decision on the evidence presented, I find it unnecessary to draw an
inference.
50 Olsen’s hearsay testimony about Francum’s comments are cor-
roborated by other evidence that employees regularly posted more than
2 miles from the official intersection, and I therefore credit it.
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Current employee Watkins also testified that he routinely
parked at the John Deere facility and did not think it was an
issue prior to August 2011 based on his experience parking
there with other FTOs. I likewise credit Warberg’s testimony
based both on his demeanor and because he is a current em-
ployee testifying adversely to his pecuniary interests. Gold
Standard Enterprises, supra; Georgia Rug Mill, supra; Gateway
Transportation Co., supra.
The confusion over posting is apparent from the documents
issued to Schlegel and Watkins. The CAMs define post 1 as
“either Station 8 or Fred Meyer” and state that units may post
within .2 miles, or approximately two blocks from the assigned
post. According to Olsen, Fred Meyer is 3 blocks from post 1.
The instructions on the CAM would permit posting .2 miles
from Fred Meyer. In addition, the Respondent was aware of
employees parking at a Wal-Mart store in Cornelius and, rather
than discipline them, merely advised them not to do this. (Tr.
330–331, 970, 993; R. Exh. 3.) In fact, despite knowledge of
posting errors, the Respondent did not discipline any other
employees for failing to post at the correct location. (Tr. 850.)
The complete confusion and lack of consistent standards re-
garding where crews could post, the fact that no other employ-
ees were disciplined despite the Respondent’s knowledge that
other employees had been off post, coupled with the evidence
of animus, convince me that the Respondent seized on the op-
portunity to discipline Schlegel. Both Weeks and Riensche
referred to the incident in their respective August 11 recom-
mendations to terminate Schlegel. Weeks also embellished the
transgression, stating that Schlegel was seen posting more than
a mile from where he stated he was. Accordingly, I find that the
Acting General Counsel proved that the Respondent violated
Section 8(a)(1) and (3) of the Act as alleged.
5. Watkins’ August 2011 Corrective Action Memorandum
The complaint allegations in paragraphs 11 and 17 aver that
on or about August 8, 2011, James issued Watkins a Corrective
Action Memorandum, in violation of Section 8(a)(1) and (3).
In the context of a union organizing drive, discipline of a
neutral employee in order to facilitate or cover up discriminato-
ry conduct against a known union supporter violates Section
8(a)(3). Bay Corrugated Container, 310 NLRB 450 (1993),
enfd. 12 F.3d 213 (6th Cir. 1993); NLRB v. Excel Case Ready,
238 F.3d 69, 72 fn. 6 (1st Cir. 2001). See also Dawson Carbide
Industries, 273 NLRB 382, 389 (1984), enfd 782 F.2d 64 (6th
Cir. 1986) (such employees are “pawns in an unlawful design,”
and their discipline is unlawful).
I find that Watkins was issued a CAM to facilitate disciplin-
ing Schlegel for being off post in August 2011. My finding that
the Respondent seized on this opportunity to discipline Schle-
gel, based on the evidence explained above, leads to the ines-
capable conclusion that Watkins’ discipline was a mere by-
product.
6. Schlegel’s October 2011 suspension and discharge
The complaint allegations in paragraphs 10(d) and (e), 17,
and 18 state that on or about October 26, 2011, Lee suspended
Schlegel, and on or about October 26, 2011, and Boxman ter-
minated Schlegel in violation of Section 8(a)(1), (3), and (4).
Again, the Acting General Counsel has met its initial burden
under Wright Line for the reasons set forth above.
Boxman stated he based his decision to terminate Schlegel
on all the events that had occurred, and his determination that
Schlegel showed no signs of wanting to improve.
The incident that prompted Weeks’ and Riensche’s October
27 third recommendations to terminate Schlegel occurred on
October 25. That day, Schlegel and his partner Warberg
stopped for lunch on their way to pick up a nonemergency pa-
tient from the hospital without telling dispatch. Once at the
facility, Schlegel spent more than 10 minutes talking to a friend
from AMR and delayed informing dispatch they had arrived at
the hospital. Supervisor Mathia saw Schlegel at the hospital
when he arrived to pick up a patient. Mathia saw that Schlegel
was still outside and had not yet picked up the patient, even
though Mathia, in the same time period, had retrieved his pa-
tient and was leaving the hospital. I find that Mathia’s subse-
quent investigation into Schlegel and Warberg’s actions that
day was justified. It showed that Schlegel and Warberg failed
to contact dispatch before stopping for lunch and delayed in
contacting dispatch and retrieving the patient once they arrived
at the hospital.51 The Acting General Counsel asks that I draw
an adverse inference based on Mathia’s failure to testify. As
Schlegel’s factual account of what transpired essentially mir-
rors Mathia’s notes, no such inference is warranted.52
As evidence of pretext, the Acting General Counsel asserts
that employees routinely stopped for food without notifying
dispatch. The Respondent points out, however, that the em-
ployees had been recently reminded of the need to stay in touch
with dispatch, by way of an October 9 operations update and an
all-hands meeting employees attended on either October 12 or
19. (R. Exhs. 3–4.) The CAM Schlegel received in August
2011 also reminded him to advise dispatch of any deviation
from posting/assignment.
Moreover, the Respondent presented evidence that other em-
ployees were disciplined for deviating from assignment without
notifying dispatch. Trish Preston and Peter Haslett were each
suspended in June 2010, for taking a 33-minute detour to see
the “Mystery House of Vortex” on the way back from a patient
transport without notifying dispatch.53 (R. Exh. 30, p. 7, Trish’s
discipline; Tr. 915–916.) On November 27, 2010, Andrew
Talarowski received a counseling for failing to keep dispatch
advised of his delayed status. (Tr. 910; R. Exh. 30, p. 2.) Ryon
O’Tannor received a CAM on August 24, 2011, for stopping to
get food without notifying dispatch, resulting in delay to pick
up a customer. (R. Exh. 27, p. 4.) Bob Berdan received a rep-
rimand for being 2 minutes late to pick up a patient after stop-
ping for coffee. Though this was a pickup with a set time, un-
like Schlegel’s, the action that Berdan was required to correct

51 Though I find Schlegel’s conduct justified Mathia’s inquiry, I
find the investigation’s sole focus on Schlegel, with no mention of
Watkins, as further evidence that Schlegel has become a focal point.
52 I likewise decline to apply an adverse inference based on Lee’s
failure to testify.
53 The reference to Preston as a senior paramedic is a typo. (Tr.
916.)
METRO-WEST AMBULANCE SERVICES 1057
was an unauthorized stop while dispatched to a call.54 (R. Exh.
27, p. 9.) The Acting General Counsel asserts that the other
employees who were disciplined were late to calls or were re-
sponding to emergency calls, but this was not the case, as Has-
lett and Preston’s situation shows.
As additional evidence of pretext, the Acting General Coun-
sel also points out that on October 25 Schlegel parked with
large Union posters in his car in front of Boxman and Fuiten’s
office, and the Respondent received a MWA Medicguy Face-
book page responding to an employee survey and explaining
how the Union could help. There is no evidence that this, or
other Union activity, caused the Respondent to send Mathia to
watch and report on Schlegel, however. As a supervisor, Ma-
thia looked into and verified what he saw as an infraction, and
Schlegel was issued a suspension in a manner consistent with
other employees. Even though there is significant evidence of
animus, I find, in light of the above, that the Acting General
Counsel has failed to prove that Lee’s suspension of Schlegel
on October 26, 2011, for his lapses in maintaining contact with
dispatch on October 25 was pretext for retaliation.
Weeks and Riensche also added Schlegel’s failure to submit
the report on the dangers of inattentiveness, required by the
PIP, as a justification for Schlegel’s termination. Schlegel testi-
fied that he turned the report in, to Riensche initially and later
to Weeks, but he did not retain a copy for himself and the com-
puter he drafted the report on was stolen. (Tr. 891, 1019.) In
making credibility resolutions, it is well established that the
trier of fact may believe some, but not all, of a witness’s testi-
mony. NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir.
1950). While I have credited much of Schlegel’s testimony, I
do not credit his testimony that he wrote and submitted the
report. Twice on cross-examination, Schlegel was asked about
the content of the report. He paused before responding, and the
responses appeared contrived. In addition, Schlegel perceived
that he was under the microscope, as evidenced by posts on his
MWA Medicguy page as well as comments to supervisors and
employees. Under these circumstances, I find it implausible
that Schlegel would not have taken the small and simple steps
required to ensure he retained a hard copy of the report and/or
to ensure he had tangible verification of its receipt.
Although I find that the Respondent did not unlawfully sus-
pend Schlegel based on his failure to maintain contact with
dispatch on October 25, and that he had previously failed to
turn in the report on the dangers of inattentiveness, the ultimate
question before me is whether the Respondent would have ter-
minated him based on these infractions. I find that these two
incidents alone would not have resulted in Schlegel’s termina-
tion.
The Respondent presented evidence that senior paramedic
Aric Johnson was terminated on October 1, 2010. Johnson was
working with Eliot Day, a junior paramedic. Johnson had con-
cerns about transporting the patient. He panicked, and based on
unfounded concerns told Day to “step on it” resulting in Day

54 There is also evidence of discipline for failure to maintain con-
nection with dispatch during 9-1-1- calls, which I find to be of less
relevance. Likewise, there is evidence that an EMT basic was disci-
plined for not being on the air.
driving in excess of 90 miles per hour. The Respondent applied
a substitution test, and other paramedics were able to find alter-
native ways to deal with the clinical issue presented. Day was
fired initially, but pursuant to a root cause analysis, his termina-
tion was rescinded and he received a CAP. (R. Exh. 30, p. 306;
Tr. 911–914.) Neither Day nor Johnson reported directly to
Riensche, and no supervisor who testified had direct knowledge
of the incident.55 Riensche did not know whether Johnson had
received any prior discipline. (Tr. 914, 927.) Aside from not
knowing whether this was Johnson’s first infraction, Johnson’s
termination related to his clinical skills as a paramedic. As
such, his situation was different from Schlegel’s.
With regard to the report on the dangers of inattentiveness, I
find that the timing of events strongly suggests Schlegel’s fail-
ure to provide it, without more, would not have resulted in his
termination. The report was due on August 1, 2011. Riensche
and Weeks referenced Schlegel’s failure to submit the report in
their respective recommendations to terminate Schlegel a cou-
ple weeks later, along with the other incidents. Schlegel, how-
ever, was not terminated until October 27. This timing shows
that the failure to turn in the report combined with the other
enumerated infractions, even assuming the discipline for them
was legitimate, would not have resulted in Schlegel’s termina-
tion because in fact they did not. See Dentech Corp., 294
NLRB 924, 956 (1989).
I also find that the October 25 infraction, combined with
Schlegel’s failure to turn in the report on the dangers of inatten-
tiveness, would not have resulted in his termination. Weeks
and Riensche consistently emphasized that several incidents
informed their combined and seemingly collaborative requests
that Boxman terminate Schlegel. Boxman’s testimony that he
didn’t terminate Schlegel on the first two recommendations
because he was a long-term employee who previously had an
outstanding record, demonstrates that these two infractions, by
themselves, would not have led to Schlegel’s termination. In-
stead, Boxman considered and relied on a combination of all
the events and all the previous discipline.
I do not doubt that Schlegel was not his usual self in and
around the time of the events at issue in this decision, particu-
larly early on. I understand and appreciate that he received his
first admittedly legitimate discipline in years for tardiness be-
fore he became involved with the Union’s efforts. It is undeni-
ably a common experience in industrial life to see a coworker
who is going through personal issues manifest some of the
effects of those issues at work. What is also clear, however, is
that regardless of what was happening at home, Schlegel was
not alone in becoming increasingly frustrated at work. This is
evident from the Respondent’s decision to implement Just Cul-
ture and from the Union’s campaign, albeit unsuccessful. I
cannot and need not speculate about whether Schlegel would
have commented to Riensche in October 2010 about the need
for a union if his personal life had not taken the turns that it did.
What happened from there is described above and its lawful-
ness analyzed taking into account the evidence presented.

55 Riensche is listed as Day’s supervisor in R. Exh. 30, but he testi-
fied that Day was not his direct employee at the time. (Tr. 914.)
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Based on the foregoing, I find the Acting General Counsel
has met its burden to prove that but for Schlegel’s protected
activities, and discipline motivated by these activities, he would
not have been terminated on October 27, 2011.
7. Warberg corrective action memorandum
The complaint allegation in paragraphs 12(a) and 17 states
that about October 27, 2011, the Respondent, by Weeks and/or
Riensche at the Respondent’s facility, issued its employee
Brent Warberg a corrective action memorandum to camouflage
the discriminatory nature of the Schlegel’s suspension and dis-
charge, in violation of the Act.
For the reasons set forth above, I find that the Respondent
did not issue Warberg a CAM to cover up its discriminatory
treatment of Schlegel. First, I note that I have not found Schle-
gel’s suspension to be unlawful. As with Schlegel, I find that
Mathia’s legitimate investigation revealed an infraction war-
ranting discipline, consistent with how the Respondent has
disciplined other employees. Because it was Warberg’s first
infraction, and the CAM is the lowest level of discipline under
Just Culture for behavioral lapses, I find it was legitimately
issued. The Acting General Counsel has not proven that War-
berg’s discipline was a pretext to justify disciplining Schlegel,
in line with my findings above. Accordingly, I recommend
dismissal of complaint allegation 12(a).
B. Prohibition on Wearing Pins
The complaint allegation in paragraphs 8 and 16 states that
on April 14, 2011, the Respondent began enforcing a rule about
employee associations to prohibit employees from wearing
union pins in violation of Section 8(a)(1) of the Act.
In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801–803
(1945), the Supreme Court held that employees have a protect-
ed right to wear union buttons at work. This right is balanced
against the employer’s right to maintain order, productivity,
and discipline. The Board has struck this balance by permitting
employers to prohibit employees from wearing union insignia
where the employer proves that “special circumstances” exist.
Id. at 797–798; see also Sam’s Club, 349 NLRB 1007, 1010
(2007). It is firmly established that “substantial evidence of
special circumstances, such as interference with production or
safety, is required before an employer may prohibit the wearing
of union insignia, and the burden of establishing those circum-
stances rest[s] on the employer.” Government Employees, 278
NLRB 378, 385 (1986). “The Board has found special circum-
stances justifying the proscription of union insignia when its
display may jeopardize employee safety, damage machinery or
products, exacerbate employee dissension, or unreasonably
interfere with a public image which the employer has estab-
lished as part of its business plan, through appearance rules for
its employees.” United Parcel Service, 312 NLRB 596, 597
(1993), enf. denied 41 F.3d 1068 (6th Cir. 1994) (citing
Nordstrom, Inc., 264 NLRB 698, 700 (1982)). A rule based
upon special circumstances must be narrowly drawn to restrict
the wearing of union insignia only in areas or under circum-
stances which justify the rule. Sunland Construction Co., 307
NLRB 1036 (1992). Customer exposure to insignia is not, by
itself, a special circumstance, nor is the requirement that an
employee wear a uniform. United Parcel Service, supra.
Boxman testified, as set forth in the statement of facts, that
there was a lot of scuttlebutt about the pins, and controversy
among employees who wore union pins and antiunion pins.
This prompted management to look at the policy manual and
permit only pins from professional organizations associated
with the Company. Boxman’s generalized testimony, however,
is insufficient to carry the Respondent’s burden. In Mead
Corp., 314 NLRB 732 (1994), the full Board considered
whether the employer could ban employees from wearing but-
tons that said “no scabs” in support of striking workers and
insignia opposing a voluntary program the company had im-
plemented. In upholding the judge’s decision that the employer
had failed to establish special circumstances, the Board
weighed the employees’ rights to engage in activities protected
by Section 7 against the company’s right to maintain discipline
and production. The Board noted, “for example, if there are
threats of misconduct, an employer could take steps against the
specific persons who uttered the threats” but concluded that
“where, as here, there are no such threats, the Respondent can-
not implement broad restrictions which interfere with the Sec-
tion 7 rights of the employees.” Id. at 734.56 The Board reject-
ed the company’s arguments that permitting employees to dis-
play the insignia might worsen ill-will or harm labor relations,
noting that the record was devoid of evidence of production
deficiencies or discipline problems as a result of the employees’
display. See also Caterpillar, Inc., 321 NLRB 1178, 1180
(1996) (assertion that the employees’ message ‘“could not help
but promote disorder, undermine production, and foster a lack
of discipline’ is no substitute for evidence. It must be remem-
bered that employees’ statutory rights are at stake here, and we
are unwilling to sacrifice them on the basis of nothing more
than sheer speculation”).
While there is no doubt the Respondent’s employees, in the
midst of the union campaign, took respective sides to show
fervent support of or opposition to the Union, the evidence fails
to show that any scuttlebutt or controversy arising from the
buttons created a special circumstance justifying intrusion on
employees’ statutory rights.57
In its brief, the Respondent asserts that policy 701 is con-
cerned with maintaining Metro-West’s public image. There is
no record evidence to support this, however. Policy 701, enti-
tled, “Employee Associations,” is within a section entitled,
“Community Relations and Public Information.” Within that
section, policy 704 is entitled, “Preservation of Company Im-
age.” Policy 704 is not in evidence, and therefore it is not clear
whether this provision prohibits union or other insignia.58
Likewise no evidence of record shows whether or not custom-

56 As a corollary, Boxman testified an employee had put the union
pin through the Metro-West patch on his uniform, and the Company
addressed this. There is no evidence to suggest this individual instruc-
tion was insufficient to cure the individual transgression.
57 The Acting General Counsel’s reference to United Aircraft Corp.,
134 NLRB 1632, 1638–1640 (1961), is misplaced. The finding relied
on in the brief is an ALJ decision the Board overturned.
58 The employee manual provision governing uniforms does not
mention pins. (R. Exh. 7, p. 11.)
METRO-WEST AMBULANCE SERVICES 1059
ers noticed the pins, much less whether the pins bothered or
alienated customers. What is clear, however, is that the Re-
spondent has not presented evidence to prove that it enforced
policy 701 because the union pins at issue unreasonably inter-
fered with a public image the Respondent has established as
part of its business plan. United Parcel Service, supra.
The Respondent cites to W San Diego, 348 NLRB 372, 373
(2006), as support that employers may prohibit union and other
pins while permitting pins issued as part of the employer’s
uniform. That case is distinguishable from the facts here. First,
the prohibition in W San Diego extended only to public areas.
Moreover, the button was 2 x 2-square inches, and read,
“JUSTICE NOW! JUSTICIA AHORA! H.E.R.E. LOCAL 30,”
and were more intrusive in size and color than the employer’s
uniform pin. Id. at 373, 380. Finally, the company in W San
Diego, a hotel chain, presented a plethora of evidence (absent
here) that the judge relied on to find that the pins were incon-
sistent with a legitimate business model the company relied on
to compete with other hotels. Id. at 380. The evidence, includ-
ing Boxman’s testimony, does not hint at a similar public image
concern, nor does the action of broadly prohibiting employees
from wearing pins rather than narrowly tailoring the prohibition
to public areas.
The Respondent also looks to Albis Plastics, 335 NLRB 923,
924 (2001), where the Board found special circumstances per-
mitted a ban on decals employees wore on their hardhats. The
employees in that case, however, worked in an enclosed indus-
trial facility with visibility limitations. The employer proved
that the hardhats counteracted the visual impediments, and the
decals would impair safety by reducing the hardhats’ visibility.
There is no record evidence of such safety concerns here.59
The Respondent notes, and it is undisputed, that policy 701
is not discriminatory on its face and was not promulgated in
response to union activity. The Acting General Counsel chal-
lenges the rule’s application, not its genesis or its content. The
Respondent further notes that it began enforcing the rule to
prohibit all pins, including antiunion pins. The right to wear
union pins, however, is protected by Section 7. The banning of
other pins does not dilute this right where, as here, there are not
special circumstances.
Based on the foregoing, I find that the Respondent violated
Section 8(a)(1) of the Act when it enforced policy 701 to pro-
hibit employees from wearing union pins.
C. Alleged Surveillance, Interrogation, and Threat
1. Alleged surveillance
Complaint paragraphs 13 and 16 allege that the Respondent
conducted unlawful surveillance of employees engaged in un-
ion activities and/or to discover employees’ union and/or pro-
tected concerted activities.
The test for determining whether an employer engages in un-
lawful surveillance or whether it creates the impression of sur-
veillance is an objective one and involves the determination of

59 The Respondent also cites Burger King Corp. v. NLRB, 725 F.2d
1053, 1055 (6th Cir. 1984), which declined to enforce the Board’s order
finding that the employee’s contact with the public was not a special
circumstance. Burger King Corp., 265 NLRB 1507 (1982).
whether the employer’s conduct, under the circumstances, was
such as would tend to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed under Section 7
of the Act. See Broadway, 267 NLRB 385, 400 (1983) (citing
United States Steel Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982)).
The Board has consistently held that an employer’s mere ob-
servation of open, public union activity on or near its property
does not constitute unlawful surveillance. See Fred’k Wallace
& Son, Inc., 331 NLRB 914, 915 (2000). For example, in Met-
al Industries, 251 NLRB 1523, 1523 (1980), the Board found
no unlawful surveillance of employees where the employer had
a longstanding practice of going to the employee parking lot to
say goodbye to its departing employees at the end of the work-
day. The employer’s observance of the employees’ Section 7
activity was inseparable from its regular and noncoercive prac-
tice. See also Wal-Mart Stores, 340 NLRB 1216, 1223 (2003).
Employers may not, however, “do something ‘out of the or-
dinary’ to give employees the impression that it is engaging in
surveillance of their protected activities.” Loudon Steel, Inc.,
340 NLRB 307, 313 (2003); see also Partylite Worldwide, Inc.,
344 NLRB 1342 (2005); Arrow Automotive Industries, 258
NLRB 860 (1981), enfd. 679 F.2d 875 (4th Cir. 1982); Sprain
Brook Manor Nursing Home, LLC, 351 NLRB 1190 (2007).
The Board’s analysis thus focuses on whether the observations
were ordinary or represented unusual behavior. Aladdin Gam-
ing, LLC, 345 NLRB 585 (2005), rev. denied 515 F.3d 942 (9th
Cir. 2008). Even unusual observation or enhanced surveillance
will not violate the Act, however, where the employer shows it
was instituted for legitimate reasons, such as security.
Lechmere, Inc., 295 NLRB 92 (1989), enfd. 914 F.2d 313 (1st
Cir. 1990), revd. on other grounds 502 U.S. 527 (1992).
a. November 10 in the parking lot
It is impossible to discern from the record the precise chain
of events on the evening of November 10, 2011. This is not
surprising, considering each individual has his or her own
unique perspective, and the events occurred months ago. I have
resolved material discrepancies below based on my credibility
determinations and my assessment of the weight due to the
evidence.
(1) Johnson
As a supervisor for the wheelchair department, Jocelyn John-
son was responsible for conducting periodic inventory of the
wheelchair vans. Though Johnson did not testify, her contem-
poraneous notes from November 10 state that she was in the
parking lot conducting inventory that evening. Lundin’s recol-
lection that Johnson approached him with a work-related ques-
tion about what was in his van, and his assumption that she was
conducting inventory, support Johnson’s notes. Lundin also
recalled that when he told Johnson he was talking to employees
about the Union, she said she was not stopping him. (Tr. 415–
416; R. Exh. 16.) There is evidence in Zimmer’s notes that she
was “walking the lots” with Johnson. (R. Exh. 26.) I find that
even if this was the case, Johnson’s presence in the parking lot
was not out of the ordinary, and she did not engage in coercive
activities.
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Acting General Counsel asks that I draw an adverse in-
ference based on Johnson’s failure to testify. I decline to do
this, as Lundin’s testimony supports the conclusion that John-
son was conducting inventory in the parking lot on November
10, and the Acting General Counsel has not introduced contrary
evidence that persuades me otherwise. The Acting General
Counsel’s argument is not enhanced by the fact that Johnson
was carrying a clipboard. She was conducting inventory, and
there is no record evidence that the clipboard had any relation
to any union activity of employees. See Riley-Beard, Inc., 271
NLRB 155, 157, 164 (1984). I find, therefore, that the Acting
General Counsel has failed to prove that Johnson’s presence in
the parking lot on November 10, 2011, was unusual or out of
the ordinary. Accordingly, I recommend dismissal of com-
plaint paragraph 10(c).
(2) Fairbanks
Fairbanks, as wheelchair department manager, is in the park-
ing lots overseeing his employees and vehicles on a daily basis.
Fairbanks testified that on the evening of November 10, he was
in the parking lot talking with Johnson, who was one of his
subordinate supervisors, as she was doing inventory. Johnson’s
notes from November 10 also reflect that Fairbanks and John-
son were doing inventory checks. Because the lighting in the
back parking lot is poor, Fairbanks lit the area with a vehicle’s
headlights so Johnson could see. Fairbanks testified this was
his practice during the winter months when it was dark in the
evenings.
The Acting General Counsel argues that Fairbanks’ presence
in the parking lot was unusual that evening because Lundin had
never seen him there at the end of his shift before. The Acting
General Counsel also points to Lundin’s testimony that he saw
Fairbanks just standing in the middle parking lot when he came
in from his shift, and he then saw Fairbanks between the middle
and back parking lots after he clocked out. While I do not dis-
credit Lundin’s testimony, I find that, without more, it fails to
establish that Fairbanks’ presence in the parking lot that even-
ing was unusual. The fact that Lundin twice observed him
standing for an unknown duration does not materially conflict
with Fairbanks’ testimony that he was in the parking lot for
purposes related to his job as wheelchair department manager.
Moreover, even though Zimmer’s notes reflect that she walked
the lots with Fairbanks on November 10, I find that Fairbanks’
actions were in line with his duties as wheelchair department
manager. The Acting General Counsel asks for an adverse
inference based on Fairbanks’ failure to refute testimony that he
stood in the parking lot for an extended time period before
Johnson joined him. I find no such inference is warranted, as
the Acting General Counsel did not establish what Fairbanks
ostensibly failed to refute. Accordingly, I recommend dismis-
sal of complaint paragraph 10(b).
(3) Boxman, Zimmer, and Riensche
As detailed above, VST Twyla Wells complained about
someone hiding in the bushes on November 9. Zimmer testi-
fied that on November 9, Mosso complained to her that Lundin
and Melissa Morgan were harassing “them” while they were
working. Zimmer’s notes regarding this conversation, howev-
er, attribute the harassment only to Lundin, with no mention of
Morgan, and reflect that Mosso complained that Lydia Murzea
and someone named Anthony felt harassed. The only incident
noted concerning Anthony was that he reportedly brought Mos-
so a union card Lundin had given him. Zimmer’s notes further
reflect that Mosso told her “they” tell Murzea to move to an-
other parking space, impeding her work progress, and walk in
between the vans and “startle” her. Murzea provided her own
account, which states that the “union supporters” stood in the
middle of the lot impeding her in the ability to move about
efficiently, have motioned her to choose another spot so they
can park together, and have approached her during her shift to
ask if she would like to support their cause. Murzea does not
name Lundin or any other union supporter, and does not state
she was “startled” by Lundin or any other union supporter.
Turning to November 10, there is not a single-firsthand ac-
count from any witness about any union activities other than
Lundin’s protected solicitation efforts.60 Riensche recalled that
the complaints were on November 9. (Tr. 906.) Zimmer testi-
fied at the hearing and the Respondent submitted notes she took
about the events of November 10. Zimmer’s testimony at the
hearing and her notes, however, conflict in numerous ways.
Zimmer testified she went to the parking lot to ask Johnson a
question about inventory. She recalled seeing Lundin but she
did not approach him. She then went into the building and
talked to Riensche and Boxman about “the activity in the park-
ing lot, and that we’d received some complaints about people
being in the parking lot, like the gentleman the night before
who was out in the bushes, and just overall safety of our
crews.” When prompted, Zimmer stated that Mosso had re-
ported that Lundin and Morgan were harassing people by not
letting them park and talking to them while they were working.
(Tr. 833–835.) After this testimony, Zimmer was shown her
notes. The notes state that she “walked the parking lot” at dif-
ferent times on November 10. When she was walking the back
lot, Mosso stopped her and told her Lundin was outside “cor-
nering people to talk to them about organizing.” She then
walked through the back lot, saw Neil and said, “hello.” Fol-
lowing this, she walked back inside, told Riensche and Boxman
that Lundin was outside, and Boxman asked her to “do another
walk” with him. (Tr. 838; R. Exh. 26.)
The Respondent did not call Mosso as a witness. Moreover,
the record does not contain any statement from him about what
occurred November 9 or 10, despite Zimmer asking him to
draft one. In light of the inconsistencies above and Mosso’s
failure to testify or submit a statement, I find Zimmer’s oral and
written accounts of what Mosso told her on November 9 and 10
to be unreliable hearsay and I assign them no weight except
where corroborated by competent evidence.
Boxman’s testimony also differs from Zimmer’s accounts
and cannot be squared with other record evidence. When
Boxman was asked what complaints he received the evening of
November 10, he replied in the following obscure manner:

60 Handing out union cards is considered solicitation, not distribu-
tion. See Stoddard-Quirk Mfg. Co., 138 NLRB 615, 619 fn. 5 (1962);
Rose Co., 154 NLRB 228, 229 fn. 1 (1965).
METRO-WEST AMBULANCE SERVICES 1061
Well, they were on the—there was I believe it was 10th, it
kind of—the 9th Twyla, it was real close together in time so
the 9th is when Twyla brought a concern in and on the 10th it
was just big talk. When I say big talk what mean by that is
just a lot of conversations going on all about it and people
saying well, are we safe and you know, we don’t feel com-
fortable going to our cars and then the VST’s are coming in
and saying well, we can’t park the wheelchair vans out here
and one VST said, I tried parking by wheelchair van and they
wouldn’t move and then they waived me off and then they
yelled at me and so this kept—this was building kind of
throughout the evening on the 10th.
(Tr. 586–587.)
Boxman was next asked if he received any complaints direct-
ly from the VSTs and he responded initially that he heard the
supervisors talking, but then implied he had spoken with Mosso
and “Lidia”:
Q. Okay. And again, did you receive those complaints
directly from the VST’s?
A. Well, I ended up inquiring because I mean my of-
fice sits, you know, in the evening I’m working and
there’s a lot of noise so I stepped outside my office and
said, hey, what’s going on and that’s when the supervisor
was saying, well we’re getting all these complaints and
then the VST’s then just kind of, it was like a flood of
complaints and they kind of just let go and started saying
all the things that they’ve been dealing with and apparent-
ly they’ve been dealing with it for a little while but they
haven’t—I mean, a little while, [d]ays or weeks and it fi-
nally got to the point where they couldn’t park their vans
and they were frustrated and—
Q. And which VST’s were telling you about this?
A. Matt Mosso, Lidia, I forget Lidia’s last name, but
Lidia, she’s the one that said she was really yelled at.
(Tr. 587–588.)
Boxman next testified that he walked out to the back parking
lot with Paul Austin because there was a lot of noise, and he
wanted to see what was going on. Boxman and Austin saw
Lundin out in the parking lot alone, and it was quiet. As Box-
man was walking back to his office, he heard Hawkins yell at
Lundin to leave him alone.61 Boxman provided the following
reason for his second trip to the parking lot:
I went back to my office and tried to do some more work and
the talk regarding, actually, a little bit of time had passed and
it was—it started up again as far as, I tried to park my van and
I was told to move away and I was like, oh, here we go again,
let me see what’s going on and I walked back out there, out to
the back parking lot and I saw Neil still out there.

61 Lundin disputes this, and opined that Hawkins did not want to be
seen engaging in union activities with all the supervisors in the lot.
Zimmer recalled Hawkins stating loudly, “I do not want your card.”
Hawkins did not testify and there is no evidence that he complained to
anyone that his work was being interfered with or that he felt threat-
ened.
(Tr. 592.) Boxman went back outside with Riensche and Zim-
mer, stating:
They were working and they were listening, they had been
hearing this for a little while and they—I said, I’m going to go
check it out, well, we’re going to go too because there was a
lot of curiosity as to what was happening, you know, trying to
verify what the VST’s are saying, I can’t get my work done
with—well, let’s see for ourselves and try to correct the situa-
tion. So they just kind of tagged along.
(Tr. 593.)
Finally, Boxman provided the following reason for his third
trip to the parking lot:
So I went back to my office and some more time had passed,
maybe 20 minutes, 25 minutes and it started again where
VST’s are coming in saying it’s happening and they’re not
letting me and he did say it’s Neil Lundin, names were being
now produced. Neil Lundin and so J.D. Fuiten who is two—
it’s the same hallway, just two doors down, was also working
and he came out and said, you know, what’s going on and be-
cause he’s been hearing it and he said, you know, this is still
going on and he said, well, let’s just take a walk out there be-
cause either there’s something to it or there’s not. And so we
walked out towards the parking lot and—
(Tr. 595.) Boxman recalled Zimmer and Riensche were still
with him. Zimmer’s notes reflect she went back to the parking
lot with Johnson and then saw Boxman and Fuiten come back
outside.
There are numerous problems with Boxman’s account. First,
Boxman said he and Austin went to the parking lot ostensibly
in response to the big noise that was occurring. But neither
Fairbanks nor Johnson, who were in the parking lot that even-
ing, described seeing anything out of the ordinary. Moreover,
Zimmer’s notes from November 10 do not describe any work
interference or disruptive behavior by Lundin or anyone else.
As for the second trip, I find that it was taken in response to
Zimmer seeing Lundin outside soliciting and reporting this
activity to Boxman and Riensche, as reflected in her contempo-
raneous notes. Zimmer’s notes are consistent with Johnson and
Fairbanks’ accounts that they saw Lundin soliciting that even-
ing, and their failure to report or testify about disruption of
work in the parking lot on November 10. Finally, Boxman’s
justification for his third trip, i.e., that names, specifically
Lundin’s name, were now being produced with regard to the
VSTs’ complaints, does not make sense. As noted above,
Zimmer told Boxman that Lundin was outside soliciting, which
prompted Boxman’s second trip. There is no evidence anyone
complained that Lundin disrupted the VSTs’ work on Novem-
ber 10 at any time, much less specifically between Boxman’s
second trip and the third trips that evening.
I find that Boxman, Zimmer, and Riensche’s repeated visits
to the parking lot on November 10 exceeded mere passive ob-
servation. I do not discount the fact that Wells and Murzea
complained, and I appreciate that management may not simply
ignore such complaints. None of the complaints established
through competent evidence were directed at Lundin, however,
and there is likewise no evidence of any specific disruptive or
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
threatening activity on November 10. As noted, Fairbanks and
Johnson, who supervised the VSTs, were already out in the
parking lot and did not report anything disruptive. Finally,
Boxman’s suggestion to Lundin it was time for him to go
home, and Fuiten’s ultimate directive to Lundin to leave the
parking lot, discussed below, when Lundin was admittedly in
the parking lot alone and not observed to be causing any prob-
lems, negate any legitimate claim that the Respondent acted out
of concern for employee security or work flow. See Impact
Industries, 285 NLRB 5 fn. 2 (1987).
I further find the email Boxman sent to employees on No-
vember 10 likewise constitutes unlawful surveillance, because
it instructs employees to inform a manger or supervisor if they
see people lingering in and around the parking areas. The in-
structions are not limited to reporting things like workflow
disruptions or suspicious bush lurkers. “[G]iven as they were
in the context of a current and ongoing preorganizational ef-
fort,” I find the instructions “convey the proscribed chilling
effect.” Kenworth Truck Co., 327 NLRB 497, 500 (1999).
The Respondent points to the fact union supporters were
permitted to solicit in the parking lot both before and after No-
vember 10. This does not take away the coercive nature of
what occurred on November 10, however. Accordingly, I find
that the Acting General Counsel proved that Boxman, Zimmer,
and Riensche engaged in unlawful surveillance as alleged.
b. Snyder and Fairbanks November 17 in
the crew room
Paragraphs 13(f) and (g) and 16 of the complaint allege that
Snyder and Fairbanks engaged in unlawful surveillance in the
crew room on November 17, 2011. I find that the Acting Gen-
eral Counsel failed to prove this allegation. Both Snyder and
Fairbanks testified that they are routinely in the crew room
throughout the workday, and they pass through it on their way
to other parts of the premises. As the Respondent points out,
there are numerous reasons for supervisors to walk through or
spend time in the crew room. (R. Br. p. 51.) Neither Lundin
nor any other witness identified anything unusual about their
presence, and in fact Lundin thought Snyder appeared to be
looking for someone. The Acting General Counsel points out
that Fairbanks did not explain his presence in the crew room on
November 17, but rather testified only that he is there frequent-
ly. Absent a showing that Fairbanks’ presence in the crew
room was unusual, however, the Respondent is not required to
justify its occurrence on November 17. There is no evidence to
establish that either Snyder or Fairbanks was in the crew room
to observe union activity. Accordingly, I recommend dismissal
of complaint paragraphs 13(f) and (g).
2. Alleged no loitering rule
The complaint, at paragraphs 14 and 16, alleges that the Re-
spondent promulgated, maintained, and enforced a rule prohib-
iting employees from loitering on its property when not sched-
uled to work, in violation of Section 8(a)(1) of the Act.
a. Promulgation
On November 23, Fairbanks sent an email to the wheelchair
division employees, stating that in the past 3 weeks he had
received complaints about increased “agenda promoting” (ad-
mittedly union activity) in the parking lots, he was going to
enforce “the existing practice of not loitering in the workplace,
or on the property, when you’re not scheduled.”
The General Counsel has the burden to prove that a rule or
policy violates the Act. In determining whether a work rule
violates Section 8(a)(1), the appropriate inquiry is whether the
rule would reasonably tend to chill employees in the exercise of
their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824,
825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Under the test
enunciated in Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004), if the rule explicitly restricts Section 7 rights, it is
unlawful. If it does not, “the violation is dependent upon a
showing of one of the following: (1) employees would reasona-
bly construe the language to prohibit Section 7 activity; (2) the
rule was promulgated in response to union activity; or (3) the
rule has been applied to restrict the exercise of Section 7
rights.” Id. at 647. A rule does not violate the Act if a reasona-
ble employee merely could conceivably read it as barring Sec-
tion 7 activity. Rather, the inquiry is whether a reasonable em-
ployee would read the rule as prohibiting Section 7 activity. Id.
The question of whether a rule or policy violates the Act re-
quires a balancing between an employer’s right to implement
certain legitimate rules of conduct in order to maintain a level
of productivity and discipline at work, with the right of em-
ployees to engage in Section 7 activity. Firestone Tire & Rub-
ber Co., 238 NLRB 1323, 1324 (1978).
In Lutheran Heritage Village-Livonia, supra, the Board
found that a rule prohibiting “[l]oitering on company property
(the premises) without permission from the Administrator”
violated Section 8(a)(1) of the Act because it would reasonably
chill employees in the exercise of their Section 7 rights. Id. at
655. In so finding, the Board explained that “employees could
reasonably interpret the rule to prohibit them from lingering on
the [r]espondent’s premises after the end of a shift in order to
engage in Sec[tion] 7 activities, such as the discussion of work-
place concerns.” Id. at 649 fn. 16. Accordingly, I find the
wheelchair employees would reasonably construe Fairbanks’
email to prohibit them from engaging in Section 7 activity on
the Respondent’s premises during nonworking hours.
Fairbanks testified he sent the email in response to employee
complaints over the preceding 3 weeks about the union organ-
izers interfering with employees’ efforts to do their work and
move about the parking lot. The email itself only references
“agenda promoting” not interference with work. Murzea re-
ported that Boxman’s November 10 email had resolved the
matter, and Boxman received no further complaints about the
Union interfering with the wheelchair employees’ work in the
parking lots following November 10. There is no evidence that
any employees who allegedly interfered with the work of the
wheelchair employees were disciplined for violating prior di-
rectives. Moreover, Mathia’s November 22, 2011 “parking lot
safety check” does not reference any employee complaints, yet
it clearly states that Mathia told Lundin and Morgan, who were
engaged in organizing activities, to leave. (GC Exh. 9.)
Even if Fairbanks’ email was aimed at eliminating work in-
terference, it was overly-broad. As the Board held in Tecumseh
Packaging Solutions, Inc., 352 NLRB 694 (2008), while em-
ployers may maintain rules and policies tailored to legitimate
METRO-WEST AMBULANCE SERVICES 1063
business concerns it may not “maintain overbroad no-loitering
rules that reasonably tend to chill the exercise of Section 7
rights.” Telling employees that because of complaints about
“agenda promoting” in the parking lots, he was going to en-
force “the existing practice of not loitering in the workplace, or
on the property, when you’re not scheduled” clearly would
have such a chilling effect.
The Respondent argues that the rule was valid under Tri-
County Medical Center, 222 NLRB 1089 (1976), because it
limited access solely with respect to the interior of the plant and
other working areas, it was clearly disseminated to all employ-
ees, and it applied to off-duty employees seeking access to the
facility for all purposes. Specifically, the Respondent avers that
the rule was limited to working areas because it instructed
wheelchair employees not to loiter in the workplace or on the
property, and it is undisputed that the wheelchair employees
perform work in the parking lot. The email, however, is not
limited to the parking lot. It would reasonably be construed as
prohibiting activity anywhere, including the crew room, re-
stroom, admin parking lot, or any other nonwork areas.62
Moreover, as discussed fully below, the parking lot is, at best, a
mixed use area. As such, the Respondent’s argument is uncon-
vincing.
The Respondent also asserts that Fairbanks never enforced
the rule. The Respondent did not present evidence that he or
anyone else with authority over the employees in the wheel-
chair department rescinded the rule, however. Fairbanks testi-
fied that he erred by stating Metro-West had an existing prac-
tice prohibiting loitering in the workplace, but again, there is no
evidence he, or anyone else with authority over the employees
in the wheelchair department, communicated this to the em-
ployees. While he may not have enforced it, I find nonetheless
that the Respondent, through Fairbanks, promulgated and main-
tained the rule in violation of Section 8(a)(1).
b. Enforcement
The Acting General Counsel asserts that the Respondent en-
forced the rule against loitering by the specific individuals on
the specific dates referenced in the complaint. As an initial
matter, I must point out that the alleged enforcement violations
predate Fairbanks’ promulgation. Though the Acting General
Counsel did not plead the enforcement allegations artfully (at
least in hindsight), the Respondent was on notice of the dates,
the individuals, and the basic substance of the claim, and the
parties fully litigated the matter. I therefore will decide the
allegations in paragraph 13(c), not as violations of Fairbanks’
later promulgated rule, but as violations of the Respondent’s
then-current rule regarding union activity Boxman articulated
in his testimony. See Pergament United Sales, 296 NLRB 333,
334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990); HiTech Cable
Corp., 318 NLRB 280, 280 (1995), enfd. in part 128 F.3d 271
(5th Cir. 1997). As such, the Respondent’s rule was to permit
union activity as long as it does not interrupt the flow of work
and occurs while the employees are off the clock in nonwork-
ing areas. (Tr. 588–889.)

62 I also find it was enforced to preclude loitering for union activity
and not all activity.
An employer has a right to impose some restrictions on em-
ployees’ statutory right to engage in union solicitation and dis-
tribution at the workplace. The law distinguishes between oral
solicitations and distribution of literature. Solicitations involve
the organizer approaching an employee or group of employees
to talk about the union, and often involve the organizers asking
employees if they want to sign a union card. This can involve a
back-and-forth, with questions and answers, and as such the
employer can require that this occur only when all involved in
the discussion are off the clock. The Supreme Court has agreed
with the Board, however, that as long as the employees are not
on the clock, solicitations may occur anywhere, including in
work areas. Republic Aviation Corp. v. NLRB, 324 U.S. at
802–803 (1945); Our Way, Inc., 268 NLRB 394 (1983). Dis-
tribution, by contrast, simply involves handing employees liter-
ature, which can be read at a later time. Because distribution
involves handing out flyers, pamphlets, and the like, which can
create clutter and pose a hazard to production, employers may
lawfully prohibit distribution in working areas of its premises.
Stoddard-Quirk Mfg. Co., 138 NLRB 615, 620–621 (1962).
(1) Boxman and Fuiten on November 10, 2011
As detailed above, on November 10, Lundin was in the park-
ing lot after his shift soliciting for the Union. (Tr. 710.) Lundin
testified as follows:
They—Larry Boxman came—they walked over to me, and
Larry Boxman came to talk to me with—and Kevin and
Melissa were kind of on opposite sides around us. And Mr.
Boxman asked don’t you think it’s time for you to go home.
And I said no. And he said don’t you think it’s time for you
to leave. I said no, I’ll be out here a bit longer.
. . . .
He said that they had also—and I said—I told Mr. Boxman
that I was not the one causing the disruption the day previous
and that I report any kind of suspicious activity if saw any.
And Mr. Boxman inquired if I would like to go back into his
office to talk about it. And I said no, I was more comfortable
out in the lot.
(Tr. 419–420.) Boxman testified he did not ask Lundin to leave
the parking lot. (Tr. 592, 594.)
Though Boxman never directly ordered Lundin to leave,
Lundin’s testimony that Boxman twice suggested it was time
for him to go home and then invited him to discuss matters in
his office is unrefuted. Boxman had two other supervisors with
him, and Lundin was by himself soliciting for the Union shortly
before the petition was to be filed. Boxman’s comments oc-
curred shortly before Metro-West’s owner, also in the presence
of multiple supervisors, told Lundin to leave. Particularly giv-
en this context, I find the comments were coercive from the
standpoint of a reasonable employee. See, e.g., Affiliated
Foods, Inc., 328 NLRB 1107 (1999); Wyman-Gordon Co. v.
NLRB, 654 F.2d 134, 145 (1st Cir. 1981) (inquiry under Sec.
8(a)(1) is an objective one which examines whether the em-
ployer’s actions would tend to coerce a reasonable employee).
For the reasons articulated in the discussion of surveillance, I
reject the Respondent’s contention that Fuiten, who did not
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testify, went to the parking lot to address an employee’s com-
plaint that Lundin was interfering with his or her work. More-
over, as explained below, Fuiten told Lundin to leave the crew
room a week later, although he clearly was not interrupting
work flow there. I further draw an adverse inference based on
Fuiten’s failure to explain why he told Lundin to leave the
parking lot. International Automated Machines, 285 NLRB
1122, 1123 (1987).
Even assuming safety and workflow were the real concerns,
however, Boxman and Fuiten’s telling Lundin to leave the
parking lot still would violate the Act. This is because any
restriction must be clearly limited in scope so as not to interfere
with the employees’ right to solicit their off-duty coworkers on
their own time. Republic Aviation Corp., supra; Stoddard-
Quirk Mfg. Co., 138 NLRB at 621. Requiring Lundin to leave
rather than simply warning him not to interfere with work in the
parking lot is obviously not limited in scope. Under these cir-
cumstances, I find that Fuiten’s directive compounded and
capped Boxman’s statutorily proscribed course of conduct.
(2) Fuiten on or about November 17, 2011,
in the crew room
In short, Lundin was soliciting in the employee crew room
on November 17, 2011, when Fuiten came in and told everyone
to leave. Snyder, who testified and was in the crew room that
day, did not refute this, nor did any other witness. It is undis-
puted that employees were permitted to hang out in the crew
room to wait for traffic to subside and hang out with coworkers.
The Respondent argues there is no evidence that anyone was
asked to leave its property on November 17, but this ignores
Lundin’s unrefuted testimony. Based on the reasoning set forth
in the previous section, I find Fuiten’s directive violated Sec-
tion 8(a)(1) of the Act.
(3) Mathia on or about November 22, 2011
On November 21 or 22, 2011, Lundin was in the parking lot
after his shift speaking to employees about the Union and hand-
ing out flyers. Mathia approached him and told him to leave.
Unlike the other allegations, this one involves distribution as
well as solicitation. I therefore must first determine whether
the back parking lot is a work area.
The rule set forth in Stoddard Quirk Mfg. Co., supra, that an
employer may lawfully prohibit employees from distributing
literature in work areas, does not apply to mixed use areas.
Transcon Lines, 235 NLRB 1163, 1165 (1978), affd. in perti-
nent part 599 F.2d 719 (5th Cir. 1979); Rockingham Sleepwear,
188 NLRB 698, 701 (1971). The fact that a work function or
functions occur in a given area does not itself render it “work
area” under the Board’s rules regarding distribution. Rather, the
focus is on the quality and quantity of work, whether the work
is more than de minimus, and whether it involves production.
In U.S. Steel Corp., 223 NLRB 1246, 1248 (1976), the Board
considered whether an entire facility and grounds could be
considered a work area and found that it could not, stating,
“[s]ome work tasks, whether it be cleaning up, maintenance, or
other incidental work, are performed at some time in almost
every area of every company.” See also Santa Fe Hotel, Inc.,
331 NLRB 723 (2000). The main function of the Respondent’s
business is to provide ambulance and wheelchair transportation
to patients. While the VSTs park vans in the back parking lot, I
find this is incidental to the Respondent’s main function, and
does not convert the back parking lot into a work area.
Neither Lundin’s testimony nor Mathia’s note to Boxman
describing what occurred on the date in question assert that
Lundin was interfering with the work of any employees who
were on the clock.
The Respondent avers that Lundin’s testimony is suspect,
first because the complaint alleges the events at issue occurred
on November 17. Complaint paragraph 14(c),(iv), however,
lists November 22 as the alleged date. Next, the Respondent
asserts that it appeared the Lundin was basing his testimony on
a typewritten note Mathia drafted because of a 1-day date dis-
crepancy. (R. Br. pp. 44–45.) The handwritten date and time
on the note was not authenticated, as Mathia did not testify.
Who made the notation, and whether it referred to the date of
the e-mail, the date of the events at issue, or neither is unclear.
What is clear is that Mathia told Lundin to leave the premises
while he was off the clock distributing union fliers. (GC Exh.
9.)
3. Alleged interrogation and threat
Finally, the complaint, at paragraphs 15 and 16, alleges that
Fairbanks interrogated and threatened employees (i.e., Lundin)
for joining, forming, and/or assisting the Union.
The alleged interrogation and threat is set forth in the state-
ment of facts, but I will briefly recap it here. According to
Lundin, Fairbanks asked him if he had joined the Company
with the intention of going to war with it, which Lundin took to
be an inquiry as to whether he was a salt. Fairbanks then com-
plained about the impact of the Union’s efforts on his ability to
do his job. Fairbanks asked about Lundin’s career goals, and
told Lundin he and Fuiten would not forget what Lundin had
done, and he would not be able to advance at Metro-West.
Fairbanks denies making the comments ascribed to him, but I
do not credit his testimony for the reasons set forth below.
In assessing the lawfulness of an interrogation, the Board
applies the totality of circumstances test adopted in Rossmore
House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom.
HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). This
test involves a case-by-case analysis of various factors, includ-
ing those set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964): (1) the background, i.e., whether the employer has a
history of hostility toward or discrimination against union ac-
tivity; (2) the nature of the information sought; (3) the identity
of the interrogator, i.e., his or her placement in the Respond-
ent’s hierarchy; (4) the place and method of the interrogation;
and (5) the truthfulness of the interrogated employee’s reply.
See, e.g., Sproule Construction Co., 350 NLRB 774, 774 fn. 2
(2007); Grass Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1
(2003), affd. mem. 121 Fed. Appx. 720 (9th Cir. 2005). The
Board also considers the timing of the interrogation and wheth-
er the interrogated employees are open and active union sup-
porters. See, e.g., Gardner Engineering, Inc., 313 NLRB 755,
755 (1994), enfd. as modified on other grounds 115 F.3d 636
(9th Cir. 1997); Blue Flash Express, 109 NLRB 591 (1954).
These factors “are not to be mechanically applied”; they repre-
METRO-WEST AMBULANCE SERVICES 1065
sent “some areas of inquiry” for consideration in evaluating an
interrogation’s legality. Rossmore House, supra at fn. 20.
The first factor, for reasons that appear throughout this deci-
sion and do not require additional explanation here, weighs in
the Acting General Counsel’s favor. For purposes of resolving
credibility, I am deciding the second factor (nature of the in-
formation sought) and fourth factor (place and method of inter-
rogation) together. It is uncontested that the conversation oc-
curred in Fairbanks’ office. Fairbanks and Lundin differ on
how they got there, however. Fairbanks stated that he and
Lundin started talking during a crew social, casually meandered
down the hall while most likely talking about the day, and natu-
rally ended up in Fairbanks’ office. Lundin stated that Fair-
banks approached him as he was restocking and asked to meet
with him to plan for the following Tuesday. As Lundin began
filling out his time adjustment form, Fairbanks suggested that
they just meet now, and told Lundin he would correct his time
adjustment form to include pay for the meeting. I credit
Lundin’s account of events for a number of reasons. First, his
demeanor was open and straightforward, and he responded
naturally with much less prompting during his testimony.
Lundin’s version also is more plausible with regard to timing,
as his shift ended just before 8 p.m. and the crew social had
started at 5 p.m. Finally, Lundin’s testimony was far more
detailed and the chain of events he described more plausible.
Fairbanks was not sure what he and Lundin discussed as they
happened to walk down the hall to his office, and he said they
ended up there because he “just naturally went in there and sat
down.” (Tr. 726.)
Based on Fairbanks’ lack of candor about the meeting’s ori-
gins, coupled with the fact that Lundin is a current employee
testifying against the manager of his department, I resolve the
credibility dispute about what occurred in Lundin’s favor. As
such, I find that Fairbanks asked Lundin if he came to Metro-
West to overthrow the company or go to war with it. Accord-
ingly, I find that the nature of the information sought weighs in
the Acting General Counsel’s favor. I likewise find the place
and method of the interrogation factor weighs in the Acting
General Counsel’s favor. The conversation occurred in an
office shared by two managers with nobody else present.
Though it is clear from Fairbanks’ choice of words that his
question was rhetorical, it plainly reflected his serious displeas-
ure with Lundin’s union activities, and is therefore coercive.
As detailed below, Fairbanks’ followed his question with a
comment disparaging the Union and a threat that Lundin’s ca-
reer would be harmed by his union activities.
The identity of the interrogator is Lundin’s manager and sec-
ond-line supervisor, a factor which also lies in the Acting Gen-
eral Counsel’s favor. The truthfulness of the response is inap-
posite. Whether Lundin came to Metro-West to help the Union
organize its employees was not at issue and therefore not de-
veloped in the record. Lundin was an open union supporter,
and admitted such to Fairbanks during the meeting. This factor
weighs in the Respondent’s favor. The Respondent points out
that the conversation took place after the union election, during
a time when Lundin was not engaged in union activity. I agree
that this weighs against a finding that Fairbanks unlawfully
interrogated Lundin. Considering the totality of the circum-
stances, and particularly considering its proximity to the threat
discussed directly below, however, I find that Fairbanks’ in-
quiry was coercive.
The Respondent cites to United Technologies Corp., 274
NLRB 1069, 1099 (1985), where the ALJ found that supervi-
sors’ casual questions that did not probe union officers’ union
sentiment were not coercive. In that case, however, the super-
visors did not convey the employer’s displeasure with union
activity, as Fairbanks did here. In addition, the supervisors
asked no questions about union activity, whereas Fairbanks
basically asked Lundin if he was a salt. Accordingly, I find that
the Acting General Counsel sustained its burden to prove that
Fairbanks unlawfully interrogated Lundin.
In specifically assessing whether a remark constitutes a
threat, the appropriate test is “whether the remark can reasona-
bly be interpreted by the employee as a threat.” Smithers Tire ,
308 NLRB 72 (1992). Further, “It is well settled that the test of
interference, restraint, and coercion under Section 8(a)(1) of the
Act does not turn on the employer’s motive or on whether the
coercion succeeded or failed.” American Tissue Corp., 336
NLRB 435, 441 (2001) (citing NLRB v. Illinois Tool Works,
153 F.2d 811, 814 (7th Cir. 1946)).
The Board has found threats that an employee will not ad-
vance in the company because of his or her union activities
violate the Act. See Prudential Insurance Co., 317 NLRB 357
(1995); United States Air Conditioning Corp., 128 NLRB 117,
126–127 (1960). In Cleveland Trust Co., 102 NLRB 1497,
1498 (1953), enf. denied on other grounds NLRB v. Cleveland
Trust Co., 214 F.2d 95 (6th Cir. 1954), the Union lost its repre-
sentation election on May 23, 1951. The Board found that a
supervisor’s June 11 comment to an employee that she had let
him down, was “in the doghouse” with the company’s trust
officer because she had voted for the Union, and that she was
“digging her own grave” constituted a threat. I likewise find
Fairbanks’ comment was a coercive threat in violation of Sec-
tion 8(a)(1) of the Act, despite the fact that the election had
already occurred.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by en-
forcing a policy 701 concerning employee associations to pro-
hibit employees from wearing union pins; promulgating, main-
taining and selectively enforcing an overly-broad rule prohibit-
ing employees from remaining on its premises when not work-
ing to discourage protected activities as set forth herein; engag-
ing in unlawful surveillance of employees engaged in union
activities and/or to discover employees’ union activities; and by
interrogating employee Neil Lundin about his union activities
and threatening him with adverse consequences for engaging in
union activities.
4. The Respondent violated Section 8(a)(1), (3), and (4) of
the Act by disciplining, demoting, and terminating employee
Travis Schlegel as set forth herein.
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. The Respondent violated Section 8(a)(1) and (3) of the
Act by issuing a corrective action memorandum to employee
Randy Watkins.
6. The unfair labor practices set forth above affect com-
merce within the meaning of Section 8(a)(3) and (1) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found the Respondent has engaged in certain unfair
labor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act, including the posting of the customary no-
tice.
As I concluded that the Respondent enforced policy 701 to
prohibit employees from wearing pins signifying support for
the Union, the recommended order requires that the Respondent
cease and desist from this practice.
Having unlawfully promulgated, maintained, and selectively
enforced a rule against loitering or remaining on its property
when not scheduled to work to discourage employees from
forming, joining, or assisting the Union or engaging in other
protected, concerted activities, the Respondent will be ordered
to cease and desist from these actions.
Having engaged in unlawful surveillance of employees en-
gaged in union activities or to discover employees’ union or
other protected, concerted activities, the Respondent will be
ordered to cease and desist from this action.
Having interrogated employees about union activities and
threatened employees with adverse consequences for engaging
in union activities, the Respondent will be ordered to cease and
desist from these actions.
Further, the Respondent having unlawfully disciplined
Randy Watkins will be ordered to restore the status quo ante by
rescinding the corrective action memorandum issued to him
and making appropriate changes to his personnel files and/or
other supervisor-maintained files.
The Respondent having unlawfully disciplined, demoted,
and terminated Travis Schlegel will be required to restore the
status quo ante by rescinding the unlawful October 27, 2010,
and March 7, 2011 corrective action plans, the July 11, 2011
performance improvement plan, and the August 8, 2011 correc-
tive action memorandum, and removing all references to those
matters in its files. I will also order that the October 27, 2010
suspension be rescinded and all references to it removed from
the Respondent’s files. I will further order the Respondent to
make Schlegel whole by offering him reinstatement into his
position as a field training officer, or, if the field training officer
position no longer exists, the Respondent shall offer reinstate-
ment to a substantially equivalent position without prejudice to
seniority and other rights and privileges; and by rescinding the
making appropriate changes to his personnel files and/or other
supervisor-maintained files. The Respondent shall also make
Schlegel whole for any loss of earnings he may have suffered
from the dates of his suspension, demotion, and discharge,
respectively; the backpay will be less net earnings during such
period and shall be computed on a quarterly basis, plus interest
as computed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010), enf. denied on other grounds sub. nom.
Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir.
2011).
I will order that the employer post a notice in the usual man-
ner, including electronically to the extent mandated in J. Picini
Flooring, 356 NLRB 11, 15–16 (2010). Also in accordance
with that decision, the question as to whether a particular type
of electronic notice is appropriate should be resolved at the
compliance stage. Id. at 13. See, e.g., Teamsters Local 25, 358
NLRB 54 (2012).
Finally, the Acting General Counsel requests that the Re-
spondent be required to: (1) reimburse Schlegel for any excess
in Federal and State income taxes he may owe from receiving a
lump-sum backpay award; and (2) submit appropriate docu-
mentation to the Social Security Administration so that Schle-
gel’s backpay will be allocated to the appropriate periods. (GC
Br. pp. 68–69.)
The Respondent offers no argument against these remedies
in its posthearing brief, even though it was given notice in the
complaint that the General Counsel intended to seek them (GC
Exh. 1(aaa)). Further, the remedies do not on their face appear
punitive in any way, and the Board has never held that they are
punitive or otherwise inappropriate. However, the Board re-
cently gave notice that, because such remedies have not been
issued in the past, they should not be granted in individual cas-
es in the absence of a full briefing. Consumer Products Ser-
vices, LLC, 357 NLRB No. 87, slip op. at 2 fn. 3 (2011) (not
reported in Board volumes). Thus, as the Acting General
Counsel did not request such briefing, and permitting it would
result in an undue delay, the General Counsel’s request is de-
nied.
[Recommended Order omitted from publication.]