American Medical Response of Connecticut

National Labor Relations Board - Administrative Judge Opinions

Nov 20, 2012

34-CA-013051 (N.L.R.B. Nov. 20, 2012)

JD(NY)–36–12
West Hartford, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
AMERICAN MEDICAL RESPONSE OF
CONNECTICUT, INC.
and Case No. 34-CA-013051
ADAM CUMMINGS, AN INDIVIDUAL
and Case No. 34-CA-065800
SHANNON SMITH, AN INDIVIDUAL 1
Jennifer Dease, Esq. and Claire T. Sellers, Esq.,
Counsels for the General Counsel
Edward F. O’Donnell, Jr., Esq. and Meredith
G. Diette, Esq., Counsel for the Respondent
Decision
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in Hartford,
Connecticut on eight days in April, May and July 2012. The charge and the amended charges
in 34-CA-013051 were filed by Adam Cummings on July 20, September 19 and October 31,
2011. The charge in 34-CB-067936 was filed by Cummings on October 31, 2011. The charge
in 34-CA-065800 was filed by Shannon Smith on September 29, 2011. A Consolidated
Complaint was issued on December 30, 2011 and alleged as follows:
1. That on or about April 8, 2011, the Employer began requiring employees to perform
the following tasks.
(a) Complete and submit vehicle check-off sheets on a daily basis;
(b) Check, maintain and add to the engine oil and coolant levels of the Employer’s
vehicles.
2. That between April 8 and June 3, 2011, Cummings as the Union’s shop steward
complained to the Employer about the foregoing actions.

1 Prior to the hearing, a settlement was executed by the National Emergency Medical Services
Association, (NEMSA), in Case No. 34-CB-67936. That case was severed and the caption is hereby
amended to reflect this fact.
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3. That on or about May 11 and June 10, 2011, the Employer disciplined employees
because they allegedly failed to perform the tasks described above.
4. That on June 3, 2011, the Employer discharged Cummings because of his union and
protected concerted activity. It also is alleged that the Employer violated Section 8(a)(3) by
acceding to the Union’s attempt to cause his discharge because of his internal union activities.
5. That on September 9, 2011, the Respondent accepted Smith’s resignation of her
position as a “Field Operations Supervisor” and refused her request to be reassigned to her
former job in the unit as a paramedic. It is contended that the Respondent’s motivation was
because of her past activities as a shop steward for District 1199.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following 2
Findings of Fact
I. Jurisdiction
The parties agree and I find that the Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. The Alleged Violations
(a) The Company’s Operations
The Respondent (AMR) is a nationwide provider of ambulance and medical
transportation services. The facility involved in the present case is located in West Hartford and
it is part of the Respondent’s Greater Hartford Division. The Division provides services in an
area encompassing Hartford, West Hartford, Windsor, Newington and Bloomfield, Connecticut.
There are about 300 employees who report to the West Hartford facility, mainly consisting of
paramedics and Emergency Medical Technicians also known as EMTs. The facility has a
garage with a head mechanic and three to five other mechanics who service the vehicles. The
vehicles consist of about 30 to 40 ambulances, 30 wheelchair transport vehicles and about 15
SUVs that are called “fly cars” and which are used by paramedics to go to a scene when
needed. Typically but not always, an ambulance or a wheelchair vehicle will have a two person
complement, usually consisting of an EMT and a paramedic. A fly car will have a one person
crew. It should be noted that in more recent years, the Company has begun to use gasoline
vehicles instead of diesel powered vehicles. The newer vehicles use more oil than the older
diesel models and therefore need to be checked more often for oil levels. Ambulances are used
on a 24 hour basis and when one crew finishes another takes over.

2 At the hearing I denied the Respondent’s Motion to defer, pursuant to Collyer Insulated Wire, 192
NLRB 837 (1971), the 8(a)(1) & (3) allegations concerning Cummings This argument was again raised in
the Respondent’s Brief. I reiterate my ruling because the grievance involving Mr. Cummings was filed by
a labor organization that no longer represents him or any of the other employees in the bargaining unit.
That union having been replaced, there is no assurance that it would adequately represent Cummings in
an arbitration proceeding. Moreover, there was evidence of animus by that union against Cummings
relating to his activity in its internal affairs.
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The General Manager of the West Hartford facility is Sean Piendel. Under him are a
group of Field Operations Supervisors who schedule and deal with the EMTs and paramedics
who are assigned to their respective shifts. At the time of these events, the supervisors were
Duane Drouin, Chris Chaplin, Chris Handel, Jason Kane and Henley Solomon. Shannon Smith,
one of the charging parties, was also a Field Operations Supervisor until September 22, 2011.
In her case, the General Counsel alleges that when she chose to give up her supervisory
position in September, the Respondent refused to allow her to resume her previous job as a
paramedic because of her prior union activities.
The Company has a Human Resources department and its director for Connecticut is
Robert Zagami. Also, an actor in this case was Kelly Gauthier who is employed in the Human
Resources department.
The Company and its employees in the Hartford area have had a somewhat unique
history of collective bargaining. Before 2002, these employees were represented by the Greater
Hartford Emergency Medical Technician Association (GHEMTA). 3 However, in 2002 another
union, New England Health Care Employees Union, District 1199, took over from GHEMTA.
This new relationship didn’t last very long since a third union, NEMSA, won a Board conducted
election in 2008. Two of the Company’s employees, James Gambone and Jim Misercola were
that union’s representatives until they left the Company’s employ. At that point their union
functions were taken over by an individual named Toby Sparks. Finally, in September 2011, still
another union, Local 559, Teamsters, filed an election petition and it was certified on November
1, 2011.
At the time that the events in this case occurred, the collective bargaining agreement in
effect was between the Company and NEMSA. This contract was executed on April 2, 2009 and
contains a number of provisions that are relevant to various issues in this case. (These will be
described in the context of the particular issue to which a provision is relevant). After
ratification, the parties continued to meet to resolve certain issues as to how the Company’s
Standard Operating Procedure was to be interpreted and/or implemented in light of the
collective bargaining agreement. Such meetings were held in the autumn of 2009 and the
winter of 2010. During these meetings the parties discussed the checklist policies set forth in
the Standard Operating Procedure. In this regard, the Company contends that a new checklist
was e-mailed to union representatives Gambone on February 23, 2010 and that the Union
agreed to changes which included a provision at Section 2.22 entitled “Start of Shift Procedures”
that required employees to:
Report to the vehicle and complete a “Vehicle Inspection” sheet and include it in
the daily paperwork. Ensure that the vehicle is ready to respond by checking the
oil level and starting the vehicle. Any vehicle failures shall be promptly reported
to the Operations Supervisor.
However, contrary to the Respondent’s contention, the evidence does not establish that
this was, in fact, agreed to by NEMSA. At best, the evidence shows that the SOP was e-mailed
as an attachment to Gambone who did not respond. There was no testimony by any witness
that would show that Gambone or anyone else representing NEMSA ever agreed to the
proposed new SOP or the checklist procedure described above. Gambone was not called as a
witness and although Piendel testified that he was told by his superior, Zagami, that the Union

3 The Respondent recognized GHEMTA when it took over the operations of a predecessor company.
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agreed to the new SOP, Zagami was not called as a witness in this proceeding. There is in fact,
no document, e-mail or other memorandum indicating that the Union assented to the proposed
Standard Operating Procedure and I find that it did not.
(b) Prior NLRB cases
In American Medical Response, 356 NLRB No. 155, the Board approved the Judge’s
findings that the Respondent violated Section 8(a)(1),(3) and (5) by;
1. Threatening employees with the loss of annual pay increases because they engaged
in union activities.
2. Engaging in surveillance of employees’ union activities.
3. Prohibiting employees from possessing union materials on company time and
property.
4. Prohibiting employees from using a bulletin board to post union-related items.
5. Prohibiting employees from wearing a union pin.
6. Discriminatorily refusing to allow an employee to attend a company meeting on paid
time.
7. Unilaterally and without notice to or bargaining with the Union, failing to pay eligible
bargaining unit employees upgrade pay, tuition reimbursement payments and
recertification payments.
8. Unilaterally and without notice to or bargaining with the Union, failing to post the
biannual shift bid for bargaining unit employees.
9. Unilaterally and without notice to or bargaining with the Union, failing to grant EMTs,
paramedics and drivers a scheduled annual wage increase.
In American Medical Response of Connecticut Inc., JD(NY)- I5-11, I concluded in a case
not yet decided by the Board, that the Respondent violated Section 8(a)(1) by soliciting
employees to file a decertification petition and that it violated Section 8(a)(5) of the Act by
unilaterally changing a policy regarding outside employment.
(c) The alleged unilateral change involving vehicle
checklists and daily checks of oil and coolant
Over the years, the Company has utilized checklists in relation to the operation of its
vehicles. For ambulances, there is a checklist that sets forth the medical supplies that are
supposed to be in the vehicle at all times. Employees when they take over an ambulance, have
always been required to utilize this checklist and make sure that they have the right supplies for
their shift.
During the period from about 1996 to 2001, the Company also used a document called a
pre-trip inspection ambulance service driver check list. With this list, the ambulance crew was
supposed to check off, inter alia, that they inspected the vehicle’s exterior, checked oil levels,
windshield washer fluid and engine coolant. The testimony was that this checklist was used
during that period of time and was then discontinued. There was a variety of testimony given by
employees. Some testified that they checked the oil and coolant on a regular basis as a matter
of course. Others testified that they did not do this but left it to the mechanics who inspected the
vehicles on a regular schedule. Still others testified that they checked the oil when the engine
started to sound bad. In all cases, the testimony was that since 2001, they did not check oil
and coolant on a daily basis and that no employees were ever required to document that they
did so or were disciplined for failing to do so.
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Before 2010, the ambulances were diesel powered. The Company then started to buy
as replacements, gasoline powered ambulances which use more oil. The testimony was that in
a gasoline powered engine, as opposed to a diesel engine, the lack of oil can result in a
catastrophic engine failure. There is no question but that with a gasoline powered vehicle, it is
necessary to check the oil on a more frequent basis.
In an e-mail dated January 24, 2011, the Respondent advised fleet managers about
excessive oil consumption in the Ford V10 6.8L gasoline engines. The e-mail states: “It is very
important to check oil levels daily. A low oil level in a gasoline engine can be more damaging
than a diesel.”
By e-mail dated April 1, 2011, from Duane Drouin to the Field Supervisors and Field
Training Officers, he attached a new proposed “pre-trip inspection” form and asked for their
feedback. This form is somewhat similar to the form used before 2001 and has a space for
employees to indicate whether the oil and coolant levels are low or full.
By e-mail dated April 6, 2011, Drouin sent a new checklist to the supervisors. He stated:
“Please start utilizing them asap. We will need to work on tracking them. We have had 2
situations this past week with vehicles extremely low on oil. We don’t need to blow another
engine… 913 and 903 both were found to be 4+ quarts low.”
When employees arrived at work on April 8, 2011, they were advised that they had to
use the new checklists on a daily basis. Soon thereafter, a notice was posted that perhaps for
emphasis, had a picture of the grim reaper with the caption, “Don’t let him catch us off guard.”
The remainder of the notice read in pertinent part:
There have been some questions raised regarding the check sheets. The
check sheets are not new to us. There have been many different versions over
the years they have been redesigned and updated.
We are requiring one for each shift worked. This is important to our
operations due to the fact that we have discovered several vehicles very low on
oil. We cannot afford to damage another engine needlessly.
There has been an increase in unknown damage to the vehicles and we
will use these forms to protect employees from being held responsible for
damage that isn’t caused by them. 4
Checklists are required for every vehicle used and are to be completed at
the beginning of each shift or as soon as otherwise possible and turned in by the
end of the shift. The process of completing this/these forms (s) provides an
orderly process to check the vehicle’s readiness, equipment location and to
ensure adequate medical supplies. Both members of an ambulance crew are
responsible for and must work together in completing the check. A full description
of any vehicle problem is required to properly diagnose the problem. Unsafe
conditions should be reported t to the Supervisor immediately and an incident
report filed.

4 I am assuming that this remark relates to the part of the form where employees can show dents to
the vehicle.
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On April 19, 2011, Adam Cummings, a shop steward, filed a written grievance alleging
that the implementation of the new check list violated the collective bargaining agreement
because it was done without giving the employees and the Union proper notice. The contract
requires that during the life of the Agreement, the Company must notify the Union of any
proposed additions, deletions or modifications to existing operational policies, procedures and
work rules.
During the period from May 9 to 11, 2011, (about one month after the policy was first
implemented), the Company issued formal disciplinary warnings to 116 unit employees for
failing to turn in the check lists on various dates in April and early May. Thereafter, on June 10,
2011, the Respondent issued disciplinary warnings to 50 employees for not turning in check lists
during the period from May 21 to May 29. In some cases, the employees acknowledged that
they had not turned in the check lists on the dates alleged, whereas others denied that they had
failed to do so. In this regard, some employees testified that they had received a warning for
dates that they were not even working whereas others contested the warnings stating that they
had, in fact, turned in the check lists. There also was some credible testimony that during the
first two months, the procedure for collecting the checklists was chaotic and that some were
even disposed of by a person in the billing department because the employees were inserting
them into folders that were used for another purpose. In either case, the evidence establishes
that the policy of requiring the employees to document and check the oil and coolant levels on a
daily basis was being enforced by means of disciplinary measures.
The issue here is not whether the requirement that employees check oil and coolant
levels on a daily basis and confirm doing so by submitting a check list, is a good, bad or
indifferent idea. (As one of the General Counsel’s witnesses testified, such a rule is probably a
good idea). Rather, the issue is whether this requirement constitutes a material change in the
employees’ terms and conditions of employment; whether the Union has waived its right to
bargain about the change; and whether under Section 8(a)(5) of the Act, the Company must first
notify the Union about it and afford an opportunity to bargain before its implementation.
In my opinion, the evidence shows that since 2002, the Company has not required its
employees to check the fuel and/or coolant levels on vehicles on a daily basis and has similarly
not required them to document that they did so. It therefore is my opinion that the requirements
that were put into effect on April 8, 2011, constituted a unilateral change in employees’ terms
and conditions of employment. I also conclude that this change was sufficiently material as to
require the Company to first notify and bargain with the Union before implementation. See
Carbonex Coal Company, 262 NLRB 1306, 1313 (1982) (change in shift schedule affecting 3
employees); Mitchellace Inc., 321 NLRB 191, 195 (1996) (change in hours held to be nontrivial
change in shift starting times); Blue Circle Cement Co., 319 NLRB 954 (1995), (change in start
times); Carpenters Local 1031, 321 NLRB 30 (1996) (change requiring employee to work 1/2
hour more per day).
I also conclude that the Respondent has not demonstrated that the Union waived its
right to bargain over this change. Its assertion that after the contract was ratified, the Union
nevertheless agreed to a new Standard Operating Procedure allowing the Company to require
these procedures and checklists was not, in my opinion, supported by any competent evidence.
Inasmuch as I conclude that the unilaterally implemented requirements that employees
check fuel and coolants on a daily basis and turn in checklists was unlawfully implemented, it
follows that any disciplines issued to employees for failing to follow these procedures would also
be unlawful. Randolph Children's Home 309 NLRB 341 (1992). I therefore conclude that the
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disciplines issued to employees from May 9 to 11, 2011 and on June 10, 2011, violate Section
8(a) (1) of the Act.
(d) The Discharge of Adam Cummings
The General Counsel contends that the Respondent discharged Cummings because of
his activity as a union shop steward, particularly in relation to his concerted actions in protesting
and filing a grievance about the unilateral change described above. Alternatively or
concurrently, the General Counsel contends that the Respondent discharged Cummings at the
behest of his Union because of his internal union activities. (As previously noted, a Complaint
had been issued against NEMSA but it agreed to a settlement and that charge was severed
from the instant cases).
The Company’s defense is that after the change was instituted, Cummings in an e-mail
urged employees to protest the change by engaging in a work stoppage which, in conjunction
with the contractual grievance/arbitration provisions, is prohibited by a no-strike clause in the
collective bargaining agreement. (Article 17 of the contract). If the Company is correct in its
contention that Cummings instigated a work stoppage, even in the context of a concerted
protest over the unilateral changes, then this would, in my opinion, be a sufficient defense under
either of the General Counsel’s two theories. For if Cummings did instigate a contractually
prohibited work stoppage, this action would not be protected under the Act and would have
been an independent and valid reason to discharge him even if the Union had asked for his
discharge for reasons relating to Cumming’s internal union activities. In NLRB v. Sands
Manufacturing Co., 306 U.S. 332, the Court ruled that where striking employees violate or
repudiate the provisions of a collective bargaining agreement, the Act does not prohibit an
employer from discharging them. And in Chrysler Corp., 232 NLRB 828, the Board upheld the
discharge of a union steward for his leadership of an unauthorized work stoppage violating the
agreement’s no strike clause. On the other hand, if his communications are not construed as an
incitement to engage in a work stoppage, they would then constitute legitimate union activity
and also would be construed as protected concerted activity. In such circumstances, it would
be concluded that Cummings’ discharge would violate Section 8(a)(1) & (3) of the Act.
On April 8, Cummings as a union shop steward sent an e-mail to Sean Piendel with
copies to the Bree Eichler, the chief steward, and to two other union stewards. This expressed
concern about the requirement that crews check the oil and coolant levels. He also asked if this
was a new policy and requested more information about it.
Piendel responded via e-mail and referred to the Standard Operating Procedure,
implicitly claiming that the Union had agreed to the reinstitution of a vehicle check list policy.
Piendel also stated that supervisors had been told to advise employees that if they didn’t know
how to check oil and coolant levels, they should seek out the maintenance department for a
demonstration. Human Resource Director Zagami was copied on this e-mail.
With respect to the claim that the Company had the right to implement the procedure
pursuant to the Standard Operating Procedure, Toby Sparks, a newly appointed union business
agent, sent an e-mail to the stewards stating his belief that the Company had the right to
implement these rules. However, I have already concluded that the evidence shows that the
Standard Operating Procedure, relied on by the Respondent, was never actually agreed to by
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the Union. As such, I conclude that the e-mail from Sparks, (who did not testify), was mistaken
at best. 5
On April 10, Cummings spoke to Chris Chaplin, a Field Operations Supervisor, and said
that he was concerned that employees could get hurt when the engine was hot if they were not
familiar with the different types of ambulance engines. (Since there is almost an immediate turn-
around of crews when an ambulance comes back to the yard, the engines are hot most of the
time.)
On April 11, Zagami sent an email telling Cummings that he should have reviewed the
manuals before making any accusations. About 20 minutes later, Eichler sent a response to all
of the persons in the chain, repeating Cummings safety concern and stating that vehicle
checklists and fluid checks had never been previously enforced. She also stated that some
employees were not skilled in checking engine fluids. Finally, she stated that in accordance with
Article 15 of the collective bargaining agreement, a notice of implementation should have been
posted for 30 days and that safety classes should be set up to deal with this issue.
Cummings then entered the e-mail chain and stated that the checklist policy had not
been enforced during his six years at the Company. Although stating that he was aware that
checking the engine fluids was important, he asked that a meeting be set up between the
company and either himself or Eichler to discuss the need for employee training.
In response, Piendel sent an e-mail to Eichler with copies to the others and stated that if
employees were uncomfortable checking engine fluids, they should see a supervisor or a
mechanic for proper guidance. At the same time, Piendel asserted that employees, as part of
their regular training, had already received training.
Eichler replied that the Union’s priority was to ensure safety and stated that requiring
employees to check engine fluids had not been enforced during the eight years that she had
been employed. She stated that the regular training that she had received did not include
matters “under the hood” of the vehicles. She, like Cummings, also asked for a meeting with
management.
Soon thereafter, another steward, Dennis, sent an e-mail into the chain, stating, in
substance, that the new gasoline powered ambulances used a lot of oil; that the supervisors
were not able to assist the crews in how to check the oil; and that on some vehicles it was
difficult to see the fluid reservoir levels.
Later on April 11, Piendel replied to Dennis and stated that he wanted to know which
ambulance crews operating the gasoline powered ambulances did not know how to check the
engine fluids.
In response, Cummings sent an e-mail into the chain, stating that he was driving one of
the newer ambulances and had never received any training about how to check the fluids. In
this escalating set of email messages, Cummings also wrote the following statement:
I can assure you that my hire class had no training what so ever in regards to
checking anything under the hood. What you have asked the employees to do is

5 The General Counsel has a more sinister theory about why Sparks sent this e-mail.
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among other things not safe. You need to provide everyone with the proper
training before asking anyone to do these tasks. Until then, I will be advising the
employees to have a mechanic check the trucks to protect the equipment and the
employees.
Piendel responded by stating:
Am I to understand that you are initiating a concerted job action against AMR?
Please respond and based on your response, I will take the necessary action
immediately!
About fifteen minutes later, Cummings replied to Piendel and made the following
statement:
Have at it if you feel that is [what] my response entailed, and you feel that is a
more appropriate response than meeting with the union about this situation.
Piendel then sent an e-mail to Cummings, with copies to the others, wherein he stated
that he had asked Cummings for a yes or no answer and that Cummings had not given him one.
Cummings response was as follows:
I feel that I have made my concerns and intentions quite clear. I also think that it
is clear that the other stewards feel as I do. Do with that knowledge as you will. I
should hope that you will meet with the union and confer on this matter.
As previously noted, the Company issued disciplinary warnings to 116 employees who it
contends did not fill out and file the vehicle check lists during the period from April 9 to early
May. Additionally, on June 10, 2011, the Respondent issued disciplinary warnings to 50
employees for allegedly not turning in check lists during the period from May 21 to May 29.
On May 12, 2011, Union representative Toby Sparks sent a letter to the Company
purporting to disavow an unauthorized work stoppage which he implied was instigated by
Cummings. The Company thereupon requested that this letter be posted at the facility and
Chief Steward Eichler refused to do so.
On June 1, Cummings, accompanied by Eichler, was called to a meeting with Piendel,
Zagami and Gauthier. At this meeting, Cummings was confronted with the May 12, Sparks
letter and asked if he could explain the contents. Cummings replied that he didn’t write the
letter and that he did not instigate a work stoppage. The Company representatives did not
confront Cummings with any other evidence that he had been responsible for a work stoppage
other than the assertions made by Sparks. 6

6 There is in fact no evidence, apart from the April 8 and11 e-mail chains, to show that Sparks had
any knowledge of or made any inquiries of unit employees as to whether Cummings had instigated any
kind of work stoppage. On June 2, Anthony Calhoun wrote to Sparks and stated that Cummings had not
incited a work stoppage and that any claim that he had done so was false. And since Sparks was not
called to testify, he did not provide the basis for his assertion in his May 12 letter that a work stoppage
had occurred.
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The evidence does not show that any employees were ever advised or solicited by
Cummings or any other shop steward to not do the oil and coolant checks or to refuse to turn in
the checklists. To the contrary, the evidence presented at this hearing was that there were (a)
some employees who simply forgot to submit the checklists, (b) some employees who did
submit checklists which were either lost or discarded by office personnel, and (c) some
employees who were given warnings for not turning in checklists on days that they were not
actually working. The Respondent did not produce a single person who testified that Cummings
ever asked him or her either to not check oil and coolant levels or to refuse to turn in the
checklists. On the other hand, the General Counsel produced multiple witnesses who testified
that they were never told by Cummings to refuse to do these tasks.
On June 3, 2011, the Company sent Cummings a letter stating that he was being
terminated because he violated Section 17.01 of the collective bargaining agreement. Basically,
it is the Respondent’s assertion that it fired Cummings because he instigated a work stoppage
in violation of the no-strike clause in the contract.
Shannon Smith testified that upon her return to full duty in early June, 2011, she had a
conversation with Duane Drouin about Cummings. According to her credible testimony, she
asked Drouin if it was true that he got Cummings fired, whereupon Drouin responded by saying:
“Well it takes a little bit more time to set the smart ones up.”
In my opinion, the evidence does not support the Respondent’s contention that
Cummings incited a work stoppage. The only evidence that might arguably support such a
conclusion are e-mails from Cummings on April 11, where he notified Piendel that he would
advise employees “to have a mechanic check the trucks to protect the equipment and the
employees.” And although Cumming avoided a direct response to Piendel’s e-mail asking if he
was initiating a concerted job action, there is nothing in any of these e-mails, which in my
opinion, can reasonably be described as a call for employees to engage in a work stoppage of
any kind. In my opinion, Cummings initial remarks about advising employees to see a mechanic
were basically consistent with Piendel’s previous e-mail to Eichler stating that if an employee
didn’t know how to check the oil or fluids, he or she should ask a mechanic for a demonstration.
In my opinion, the e-mail chains on April 8 and 11, show an escalating form of exasperation by
representatives of both parties and demonstrates how a relatively small matter can blow up into
a large misunderstanding. 7
The Respondent asserts that it decided to discharge Cummings because of his alleged
instigation of a work stoppage as evidence by his e-mails on April 11 and because of what it
perceived to be the refusal of employees to turn in the checklists in April and May 2011. There
was, however, no evidence that Cummings ever actually urged any employees to engage in a
work stoppage. Nor was there any evidence that Cummings urged or solicited any employees to
not perform any of their work functions, including the new and unilaterally established rules
requiring daily oil and coolant checks and the submission of checklists. And because his April
e-mails related to his contentions, inter alia, that the rules were not adopted in accordance with
the notice provisions of the collective bargaining agreement, his communications, as a shop
steward, to management and to the other shop stewards must be construed both as union
activity and protected concerted activity. Interboro Contractors, 157 NLRB 1295, enfd., 497 F.2d
679 (6th Cir. 1986). As such, a subjective belief that Cummings was inciting a work stoppage is

7 This may have been exaggerated because all of the communications were conducted by e-mail and
there were no meetings where people could sit down together and discuss the issue, face to face.
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insufficient to constitute a defense where, as here, that belief is not supported by the objective
facts. See NLRB v. Burnup & Sims, 379 U.S. 21 (1964).
I therefore conclude that the Respondent violated Section 8(a)(1) & (3) by discharging
Cummings because of his union and protected concerted activities. Having reached this
conclusion, it is unnecessary for me to address the alternative theory that the Company’s
discharge of Cummings was violative of the Act because it was the result of unlawful actions of
the Union to cause Cummings’ discharge in violation of Section 8(b)(2) of the Act.
(e) The refusal to put Shannon Smith
back into the bargaining unit
as a full time paramedic
Shannon Smith began her employment as an EMT in 1996 with the Company’s
predecessor. In 1998 she became a paramedic and in 2002 she became a shop steward for
GHEMTA, the union that then represented the EMTs and paramedics. When Local 1199
replaced GHEMTA, Smith became a delegate for that union. From all accounts, she was a
diligent, aggressive intelligent and fair minded union representative who effectively acted as the
bargaining unit’s chief steward. She participated in contract negotiations and handled employee
complaints mainly with Piendel. According to Smith, she and Piendel were usually able to come
to an agreement on grievances and that she therefore did not have to file many formal
grievances with the Union. Testimony revealed that while she was aggressive in her dealings
with management, she also would tell employees when their grievances did not have merit.
In July 2008, Local 1199 was voted out and NEMSA was voted in. When that
happened, Smith decided that she did not want to support NEMSA and chose not to continue as
a union representative. From that date, Smith has had no connection with union activities and
has played no role either in internal union affairs or in representing employees in their dealings
with management.
In May 2010, Smith was offered and accepted a position as a Field Operations
Supervisor and acted in that capacity until she finally sought to give up that position and return
to being a paramedic in September 2011. Again, from all accounts, Smith seems to have been
an effective supervisor. In that position she was paid a salary and was no longer in the
bargaining unit. Prior to her decision to return to the unit, she was among 8 other supervisors.
On September 9, 2011, Smith sent an e-mail to Piendel stating that she was resigning
as a supervisor and asked that she be transferred back to a full time paramedic position. One of
the reasons she did this was because the Company had ceased paying bonuses to the
supervisors and she felt that she could make more money, with overtime, as a paramedic.
Piendel responded that he was disappointed with her decision.
The General Counsel showed that over the years, it was not unusual for people who
were Field Operations Supervisors to ask for and be transferred back to their former positions
either as EMTs or Paramedics. In this regard, she provided evidence of numerous such
transactions since 2006.
However, as of September 2011, there were no full time paramedic positions open in
this region. In this regard, the local managers do not have discretion to determine the number
of paramedic or EMT positions; that being a matter determined by the Company’s corporate
office. Moreover, in April 2011, the Respondent lost an account with the Windsor Volunteer
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Ambulance Service and this resulted in the loss of five paramedic positions that were
transferred to other operations.
In the meantime, the Company had already allowed for several EMTs to train to become
Paramedics before Smith sent her June letter. In this regard, the process by which an EMT
becomes a paramedic involves the completion of a course of instruction at a College and then
an apprenticeship type of program which is undertaken by the Employer and has to be
successfully completed. The evidence shows that once agreeing to embark on an
apprenticeship program (called precepting), the Company essentially makes a commitment to
promote that person to a Paramedic position, if the program is successfully completed and if a
position is available at the time of completion. This involves a substantial investment in a
person who is being trained and if he or she successfully completes the program, the Company
will reimburse for a portion of the college course work. The record shows that when an
individual named Roper completed his precepting, he was offered and accepted a position as a
Paramedic after September 2011. Another individual, named Kashetta also successfully
completed his precepting, but was only offered a part-time paramedic position in January 2012.
In my opinion, the General Counsel has not made out, pursuant to Wright Line,8 a prima
facie case regarding the Respondent’s failure to transfer supervisor Smith back into a unit job
because of her prior union activities. 9 Although the evidence shows that Smith was a very
active Local 1199 delegate, her union activities ceased in 2008. Moreover, in 2010 she was
offered and accepted a supervisory position and in that job, she seems to have brought the
same intelligence and zeal as when she was a union delegate. There was, in my opinion, little
or no reason for the Company to be concerned about her past union activities, which were long
past.10 Moreover, Smith was not involved in any activities on behalf of Local 559 Teamsters and
there is no evidence that the Company believed that she was involved with that labor
organization.
Although the evidence showed that it was usual for the Company to agree to transfer
supervisors back into unit jobs when asked, the facts in the present case tend to show that at
the time that Smith asked to be transferred, (in September 2011), there were, except for the
precepting employees, no immediate prospect for full time paramedic positions to be open in the
foreseeable future. And except for Roper and Kashetta, no new paramedics were employed
after September 2011. (As noted above, in Kashetta’s case, he was only given a part time
schedule, much to his chagrin).
I must say that I was impressed with Smith as a witness and as a person, and I suspect
that the Company lost a valuable employee when it chose not to transfer her back into the
bargaining unit. But based on the evidence in this case, this does not mean that I can conclude

8 Wright Line, a Division of Wright Line, Inc. 251 NLRB 1083, 1089, enfd 662 F.2d 899 (1
st
Cir. 1981),
cert denied 455 U.S. 989 (1982).
9 The Respondent contends that as a supervisor, any alleged discharge of Smith must be dismissed
pursuant to the Board’s decision in Parker-Robb Chevrolet, 262 NLRB 402, 403 (1982) aff’d, Automobile
Salesmen’s Union Local 1095 v. NLRB, 711 F.2d 383 (C.A.D.C.) 1983). The General Counsel disagrees
and asserts that the violation here is analogous to a refusal to hire an employee because of his or her
union activities.
10 I don’t place any weight on the testimony that Smith was described by Druin as “a pain in the butt”
in connection with her past role as a delegate for District 1199. This was, in my opinion, too remote in
time.
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that her separation from the Company was motivated by illegal reasons. I therefore conclude
that in this respect, the Respondent has demonstrated that it had a legitimate reason for
accepting Smith’s resignation and for not transferring her back to the position of a full time
paramedic. In this regard, I shall therefore recommend that this aspect of the Complaint be
dismissed.
Conclusions of Law
1. By unilaterally changing its policies regarding the checking of oil and coolants and
the requirement that employees fill out daily checklists, the Respondent has violated Section
8(a)(1) and (5) of the Act.
2. By discharging Adam Cummings because of his union and protected concerted
activities, the Respondent has violated Section 8(a)(1) & (3) of the Act.
3. By discharging Adam Cummings because of his union and protected concerted
activities, the Respondent has violated Section 8(a)(1) & (5) of the Act. 11
4. The Respondent has not violated the Act in other manner encompassed by the
Complaint.
5. The aforesaid violations affect commerce within the meaning of Section 2(2), (6) and
(7) of the Act. 12
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an employee, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him. Backpay shall be computed in accordance with F.W.

11 The Respondent contends that post discharge conduct by Cummings requires a finding that he
should forfeit the right to reinstatement and backpay. This consists of a comment made by Cummings on
another person’s face book page that stated, next to Cummings’ own face book profile picture of him
aiming a rifle: “Until AMR gets rid of the management team up to and including Zagombi, nothing will
change. Only crews and patients will suffer.” In my opinion, the Respondent reads far too much into this
picture and comment and I do not construe his statements with his profile picture as constituting a threat
of violence. In C-Town, 281 NLRB 458 (1986), a case involving an ethnic slur, The Board concluded that
the misconduct was not sufficient to deny reinstatement and backpay. The Board stated:
[N]ot every impropriety deprives the offending employee of the protection of the Act. The
Board looks at the nature of the misconduct and denies reinstatement in those flagrant
cases “in which the misconduct is violent or of such character as to render the employees
unfit for further service.
12 In its Brief, the Respondent contends that this case should be dismissed because the Board, as
currently constituted, does not have a legitimate forum. This is way beyond the scope of my job
description and until it is found otherwise at the appropriate appellate level, I will assume that the Board
has the authority to act.
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Woolworth Co., 90 NLRB (1950), with interest at the rate prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010), enf. denied on other grounds sub.nom., Jackson Hospital
Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
On these findings of fact and conclusions of law and on the entire record, I issue the
following conclusions and recommended
13
ORDER
The Respondent, American Medical Response of Connecticut Inc., its officers, agents
and assigns, shall
1. Cease and desist from
(a) Unilaterally and without notice to or bargaining with the duly designated union,
change the term and conditions of employment of the employees in the bargaining unit.
(b) Issuing disciplinary warnings to employees pursuant to the change in policy and
rules relating to oil and coolant checks and the requirement that employees file daily checklists
that was put into effect on April 8, 2011.
(c) Discharging employees because of their union and/or protected concerted
activities.
(d) In any like or related manner interfering with, restraining or coercing employees in
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Adam Cummings full
reinstatement to his former job, or if that job no longer exist, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Adam Cummings whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him in the manner set forth in the Remedy section of
this Decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to
the unlawful actions against Adam Cummings and within three days thereafter, notify him in
writing, that this has been done and that the discharge will not be used against him in any way.
(d) Rescind, until such time as it has bargained in good faith, the rules relating to oil
and coolant checks along with the requirement that employees submit daily vehicle check lists
and rescind all warnings issued to employees pursuant to such rules in May and June 2011.

13 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(e) Upon request, bargain in good faith with Local 559, Teamsters about the rules
described above.
(f) 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 designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(g) Within 14 days after service by the Region, post at Hartford facility, copies of the
attached notice marked “Appendix” 14 Copies of the notice, on forms provided by the Regional
Director for Region 34, after being signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. In addition to physical
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 customarily
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 covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since April 8, 2011.
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. November 20, 2012
_____________________
Raymond P. Green
Administrative Law Judge

14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(NY)–36–12
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor Relations
Act and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT unilaterally and without notice to or bargain with the duly designated
union, change the term and conditions of employment of the employees who are represented by
their collective bargaining representative.
WE WILL NOT issue disciplinary warnings to employees pursuant to the change in
policy and rules relating to oil and coolant checks and the requirement that employees file daily
checklists that was put into effect on April 8, 2011.
WE WILL NOT discharge or discipline employees because of their union and/or
protected concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees
in the rights guaranteed them by Section 7 of the Act.
WE WILL offer Adam Cummings full reinstatement to his former job, or if that job no
longer exist, to a substantially equivalent position, without prejudice to his seniority or any other
rights or privileges previously enjoyed and make him whole for any loss of earnings and other
benefits suffered as a result of the discrimination against him.
WE WILL remove from our files any reference to the unlawful actions against Adam
Cummings and within three days thereafter, notify him in writing, that this has been done and
that the discharge will not be used against him in any way.
JD(NY)–36–12
WE WILL rescind the rules relating to oil and coolant checks along with the requirement
that employees submit daily vehicle check lists, and WE WILL rescind all warnings issued to
employees pursuant to such rules, and WE WILL, upon request bargain in good faith about
these rules with Local 559 Teamsters as the duly designated collective bargaining agent.
AMERICAN MEDICAL RESPONSE OF
CONNECTICUT, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
A.A. Ribicoff Federal Building and Courthouse
450 Mail Street, Suite 410
Hartford, Connecticut 06103-3033
Hours: 8:30 a.m. to 5 p.m.
860-240-3522.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 860-240-3006.