American Medical Response of Connecticut, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 23, 2011

34-CA-012592 (N.L.R.B. May. 23, 2011)

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Avon, CT
Southington, CT
Waterbury, 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-12592
34-CA-12728
NATIONAL EMERGENCY MEDICAL 34-CA-12847
SERVICES ASSOCIATION
Thomas Quigley, Esq. and Catalina
Arango, Esq., Counsel for the
General Counsel
Edward F. O’Donnell Jr. Esq. and
Michael J. Spagnallo, Esq., Counsel for the
Employer
Timothy K. Talbot, Esq., Counsel for the
Union
DECISION
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in Hartford,
Connecticut on April 30 and 31, 2011.
The charge and amended charges in 34-CA-12592 were filed on February 9, March 18,
March 25 and April 30, 2010. A Complaint on those charges was issued on May 28, 2010.
The charge and the first amended charge in 34-CA-12728 were filed on June 16 and
August 24, 2010.
On August 30, 2010 the Regional Director issued a Consolidated Complaint in 34-CA-
12592 and 34-CA-12728.
The charge in 34-CA-12847 was filed on November 23, 2010 and the Regional Director
issued a Consolidated Complaint in relation to this and the previous charges on January 20,
2011.
The allegations set forth in the Consolidated Complaint are as follows:
1. That in December 2009, the Respondent, sometimes referred to as AMR, suspended
Ray Caruso, and Kristina Oliveira because of their union and concerted activities and in order to
discourage employees from engaging in such activities.
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2. That on December 19, 2009, the Respondent unilaterally modified its criteria for
approving time-off requests without affording the Union an opportunity to bargain.
3. That on May 12 and May 21, 2010, the Respondent solicited employees to decertify
the Union.
4. That on or about November 17, 2010, Respondent unilaterally modified its "outside
employment" policy without affording the Union an opportunity to bargain.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
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 and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. Background
The Respondent (AMR) is a nationwide provider of ambulance and medical
transportation services. The present case involves the Waterbury Division which covers the
towns of Avon and Southington in addition to the city of Waterbury. The General Manager of
the Waterbury facility is Robert Retallick. The local Human Resources person is Tony
Cardivellis and Mark Hughson is the lead supervisor. Other supervisors referred to in this case
are Bryan Reynolds, Michael Popyk and Joe Spagna. There are about 160 employees working
in the Waterbury division. David Banelli is the National Vice President for Labor Relations and
he was involved in contract negotiations between the Respondent and the Union.
For a number of years since 1998, employees of the Waterbury Division had been
represented by the Waterbury Emergency Services Union, also known as WESU. This was an
independent union that eventually affiliated with the International Union of Police Association.
The first collective bargaining agreement was effective from 1999 through October 2002.
Thereafter, two successive contracts were executed, the last of which ran from October 31,
2006 to October 30, 2010.
I note here that Ray Caruso, one of the alleged discriminatees in the present case was
an officer of WESU who thereafter became the chief shop steward of NEMSA after that labor
organization replaced WESU in September 2009.
In 2007, the International Union of Police Association notified WESU that it no longer
wished to represent employees in the private sector and WESU obtained the assistance of
another union, the International Association of EMTs and Paramedics. When that arrangement
terminated, WESU sought to affiliate with the National Emergency Medial Services Association
which is called NEMSU. When the Employer refused to recognize the affiliation, NEMSU
gathered authorization cards from bargaining unit employees and filed a petition with the NLRB
on July 10, 2009.
Pursuant to the Regional Director’s Decision and Direction of Election dated August 7,
2009, an election was held on September 4. NEMSU received 82 votes against 55 employees
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who voted against union representation. WESU had requested that it not be on the ballot and it
was not. As a consequence, NEMSA was certified on September 15, 2009 in the following unit:
All full-time and regular part-time and per-diem paramedics, emergency medical
technicians and chair car drivers employed by the Employer at its Waterbury,
Southington and Avon, Connecticut facilities, but excluding all other employees,
office clerical employees and guards, professional employees and supervisors as
defined in the Act.
After the election was held, bargaining for a first contract commenced in December
2009. AMR’s chief spokesman was David Banelli and the Union’s chief spokesperson was
Timothy Talbot. Each side had various other representatives who participated in their
respective caucus. Somewhat unusual to my experience, the Employer demanded and the
Union acceded to a process whereby the parties met in three day segments and did not meet
face to face unless there were specific points that had to be clarified. Thus, when the parties
met, each side, for the most part stayed in separate rooms and electronically transmitted
proposals and counter-proposals to each other.
About two weeks before the start of this hearing, the parties reached a first contract that
was ratified by the bargaining unit but which had not yet been executed by the Employer.
After the Election, NEMSA filed a number of unfair labor practice charges against the
Employer. (From September 28, 2009 to December 21, 2010). A hearing on a Consolidated
Complaint was held before Administrative Law Judge Mindy Landow on April 14 and 15, 2010
and she issued a Decision on November 9, 2010. That Decision was sustained by the Board on
May 10, 2011 in 356 NLRB No. 155. In pertinent part, she concluded 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.
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It is noted that as to Caruso, one of the protagonists in this case, the Judge found that
the Respondent violated Section 8(a)(1) of the Act when its agent instructed Caruso to remove
a NEMSA pin from his uniform.
III. Allegations concerning Ray Caruso
and Kristina Oliveira
As noted above, Ray Caruso was an officer of WESU when that labor organization was
the bargaining representative. During the period of time that NEMSA sought to organize the
employees, Caruso was a proponent for that labor organization and as previously noted was
directed by AMR not to wear a NEMSA pin on his uniform. After NEMSA was certified, Caruso
was on the new Union’s bargaining committee and was elected as its chief shop steward. In
that capacity, according to the testimony of Robert Retallick, he filed numerous grievances.
Kristina Oliveira is also employed by the Respondent and was, at the time of these
events, a full-time employee. She was and is Caruso’s finance and had little or no involvement
in union affairs. 1
All parties agree that at the time of these incidents and notwithstanding the lack of a
contract between the Company and NEMSA, the Company and that Union were operating
under certain terms and conditions as they existed under the previous collective bargaining
agreement with the predecessor union. Insofar as relevant, the contract provisions are:
Article X: Absence From Work
Section 1. …. Paid personal days shall be available for sick days, paternity days,
birthdays or whatever reason the employee shall deem appropriate. To be
entitled to paid personal days, an employee must have notified the on duty
supervisor of the proposed absence at least 6 hours before the start of his or her
shift. Employees who do not give the on duty supervisor 6 hours notice of the
proposed absence will not be paid for the day they are absent.
Section 1A. Personal Day Limitations
Notwithstanding any other language of this Agreement, there shall normally be a
limit on the number of employees who will be compensated for personal days on
any one particular shift, as follows: Ambulance Division – four employees, days;
three employees, evenings: and two employees, nights.
Transportation Services Division – four employees, days; three employees,
evenings; nights not applicable.
However, the Employer shall have reserved to it the right to increase or limit the
number of employees who may be paid for personal days on any particular shift,
as the Employer in its discretion determines it necessary to appropriately staff the
shifts.

1 At the time of this hearing, she had completed nursing school and was employed elsewhere on a
full-time basis. She has not worked for the Respondent for quite some time although she could ask to
work for the Respondent if she desired.
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Section 5. Unexcused Absences. Unexcused absence is defined as any
absence from work without the approval of the Operations Director or his
designee. Unexcused absences are a violation of the employee’s responsibilities
to the Employer and will subject the employee to discipline. Disciplinary penalty
for unexcused absences shall consist of the following:
Employee’s first offense – one day suspension; employee’s second offense – two
day suspension; additional offenses subject the employee to termination. The
Employer agrees to discuss the absence with the employee prior to taking
disciplinary action.
Article XII. Vacations.
Section 2. Full time employees shall have an opportunity to request vacation
time in multiple day increments provided such requests are received a minimum
of thirty days in advance of the scheduled requested day off. Full-Time
employees shall have an opportunity to request vacation time in single day
increments provided such requests are received a minimum of two weeks in
advance of the scheduled requested day off. Vacation time will be approved on
a first come first served basis.
In December 2009, Caruso and Oliveira both worked on the 6 a.m. to 6 p.m. shift on
Saturdays and Sundays.
(a) The denial of personal time offs for December 20 and the
ensuing suspensions of Caruso and Oliveira
The General Counsel’s contention is that AMR retaliated against Caruso because of his
activities on behalf of the Union. As to Oliveira, the General Counsel argues that the
Company’s motivation in suspending her was not because of any union or concerted activity on
her part, but in order to retaliate against Caruso, inasmuch as she is his finance. If this is true,
then I would conclude that the Company’s actions against Oliveira would be unlawful even
though she did not engage in any union activity. Thus, any violation with respect to Oliveira
would depend on a finding that the suspension of Caruso was discriminatorily motivated.
The Company’s argument is that its actions against both employees were dictated by the
terms of the applied collective bargaining agreement. That is, it asserts that both employees
ignored contractually permissible company decisions to deny their requests for paid time off and
therefore they were absent without excuse. The Company contends that it simply applied the
contractually prescribed disciplinary actions to these two employees.
At some point during the morning of December 19, 2009, Oliveira asked her immediate
supervisor, Brian Reynolds, for a personal day off, (PTO), for the following day because she
was beginning to feel sick. (She did not request to go home early as she apparently felt well
enough to finish her shift). 2 Oliveira testified that she orally made this request in the morning
and that Reynolds, at that point, said that this would be fine. Later in the afternoon of December
19, 2009, Caruso wishing to be home with Oliveira on December 20, also handed Reynolds a
written request for a personal day for that date.

2 She also was well enough to go to a union Christmas party held that evening.
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There is no dispute that both Oliveira and Caruso had already acquired sufficient leave
time in order for each to take a personal day off on December 20, 2009. There is also no
dispute that under the terms of the contract, there was no need for either to have a good
reason, or any reason, for taking this time off.
Nevertheless, the Company’s witnesses testified that on December 19, they became
aware that a large snow storm was being forecast for December 20. They testified that at some
point during the morning, they decided to cancel paid-time off requests for the following day.
And in light of the Company’s contractual commitment to have a certain number of emergency
vehicles available at all times, it would be reasonable to have sufficient vehicles and drivers
available in order to adequately respond when road conditions could likely cause delays.
According to the Company’s witnesses, they continued to monitor the weather forecasts
during that day and throughout the night. The testimony was that the forecast hadn’t changed
by late evening. The General Counsel did not challenge the Company’s assertion that on
December 19, the weather forecast was for a big snowstorm on December 20.
There is no dispute that in the afternoon of December 19, Reynolds denied the PTO
requests of Caruso and Oliveira, citing the impending snow storm as the reason. According to
Caruso, he told Reynolds that just because it was going to snow, this was no reason to deny his
request for the day off. 3 He states that Reynolds then suggested that he “just book of with Mike
Popyk tonight.” According to Caruso, he understood this to mean that he should call Popyk,
(Reynold’s replacement), after 6 p.m. and tell him that he was taking off because he was sick.
After the 6 a.m. to 6 p.m. shift ended, Reynolds was replaced by Michael Popyk. When
Caruso called him at 6:19 p.m., he told Popyk that he would not be coming in on his Saturday
shift. According to the credited testimony of Popyk, he told Caruso that the Company had
suspended all book-offs because of the storm and that Caruso replied that he was going to take
the day off anyway. 4
Oliveira testified that she spoke to Popyk later in the evening and told him that she was
sick and was not coming in for her Saturday shift. She testified that Popyk responded: “Oh
great, you’re sick” and that he then hung up on her.
On December 20, neither employee showed up for work. Also, despite the weather
prediction, the snow storm did not materialize and therefore no emergency actually ensued.
On December 23, 2009 Caruso and Oliveira each received a one day suspension for
their unexcused absences on December 20, 2009.

3 Oliveira testified that when Reynolds denied the PTO requests he said that Mark Hughson had said
that I could not have the day off because we were supposed to have a storm the following day and they
were not accepting call outs or book offs. She testified that Reynolds told her to call later in the night and
book off with Popyk.
4 Even assuming that Reynolds told Caruso and Oliveira that they could or should call Popyk after
Reynolds left for the day and tell Popyk that they were taking off due to illness, thereby implying that
Popyk would OK the requests, that would not be binding on Popyk or the Employer. The evidence shows
that by the time that Popyk took over, the Company’s decision to suspend PTOs was still in effect and it
seems to me that it would be very unlikely that Popyk would take it upon himself to ignore such an order.
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The General Counsel suggests that in addition to a general animus against the Union,
(evidenced by the findings by the ALJ in the prior case), there is a causal link between the
suspensions of Caruso and Oliveira and the fact that the Union filed a tenth unfair labor practice
charge two days earlier on December 21, 2009.
I should note that as a general rule, even if not eligible for paid time off, employees have
not been disciplined if they call in and can’t report to work due to illness or other legitimate
reasons. 5 In that respect, AMR’s past practice at this location suggests that in the absence of
the conversations that took place on December 19, if Oliveira and Caruso had simply called in
sick on the morning of December 20, they would not have been suspended. But based on this
record, it looks like the Company’s supervisors had reason to doubt that either was sick and that
both were trying to evade the Company’s decision to deny PTOs on December 20.
The Company cites the fact that another employee named William Boucher was also
suspended for failing to show up for a scheduled shift on December 25 2009, after having been
denied a leave and after asserting that he intended to ignore the Company’s decision. On one
hand, I note that the Boucher’s one day suspension occurred after the suspensions of Caruso
and Oliveira. On the other hand, the Company notes that Boucher was an employee who had
expressed some antipathy towards the Union.
The factual questions then become (a) was the Company’s decision to deny PTOs for
December 20 reasonable and consistent with the terms of the contract; (b) whether the two
employees’ decision to ignore the Company’s decision were sufficient to warrant suspensions;
(c) whether the suspensions were motivated in whole or in part by anti-union considerations;
and (d) whether the Employer would have taken the same action notwithstanding the
employees actual or perceived union activities.
(b) The denial of Caruso’s vacation request for
December 26 and the ensuing suspension
On December 19, 2009, Caruso also requested a one day vacation for the day after
Christmas. Although, he clearly had sufficient time available to be eligible to take off on
December 26, his request was not made timely under the terms of Article XII Section 2 of the
contract. As noted above, that provision requires that; “Full-Time employees shall have an
opportunity to request vacation time in single day increments provided such requests are
received a minimum of two weeks in advance of the scheduled requested day off.” With respect
to this, it is clear that Caruso was not making a request for a PTO but was making a request for
a vacation day.
On December 21, 2009, Caruso’s request was denied. Although the denial is inartfully
written, it seems to conflate Caruso’s request as one for a PTO and a vacation day. To the
extent that it treats the request as one for a PTO, the request was denied because the
Company claimed that four other employees had been granted paid time off for that day. And to
the extent that the request was treated as a request for a vacation day, the denial was based on

5 For example, on December 20, 2009, three other employees, (St. George, Negrotti and another
whose name I can’t read), called in to report that for a variety of reasons they would not be coming to
work on their scheduled shifts for that date. None of these employees received any discipline. I note
however, that all three had later shifts than Caruso and Oliveira and that by the morning, the storm had
passed by.
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the fact that Caruso’s request was not made within the two week time frame required for such
requests.
The General Counsel points out that even if Caruso’s vacation request was not timely,
the Respondent has presented no documentary evidence to support its claim that it had granted
the day off to four other employees.
(c) Concluded findings regarding Caruso and Oliveira
The legal test as enunciated in Wright Line, 251 NLRB 1083, (1980), enf’d. 622 F.2d 899
(1st Cir., 1980), cert. denied 455 U.S. 988 and as approved in Transportation Mgt., 464 U.S. 393
(1983) is that once the General Counsel makes out a prima facie showing that union or
protected concerted activity is a motivating factor in the employer’s action against an employee,
the burden shift so that the Employer must demonstrate that it would have taken the same
action even in the absence of the protected conduct.
Given the conclusions by the Judge in the prior case and given her conclusions
regarding credibility, I think it is fair to conclude that the Respondent has exhibited a certain
degree of animus towards the Union. I also note in this regard, her conclusion that the
Respondent violated Section 8(a)(1) when its agent instructed Caruso to remove a NEMSA pin
from his uniform. Additionally, although somewhat ambiguous, I note that the first suspension
issued to Caruso and to his fiancé occurred two days after the Union had filed one of its many
unfair labor practice charges. In short, I conclude that the General Counsel has made out a
prima facie case for the proposition that the Company retaliated against Caruso and Oliveira
because of Caruso’s union activities.
On the other hand, I conclude that the Respondent has demonstrated, by a
preponderance of the evidence, that it would have taken the same disciplinary actions
notwithstanding Caruso’s union and protected concerted activities.
Although Caruso and Oliveira clearly had a right under the contract to take a personal
day off on December 20, 2010 irrespective of their reasons for wanting time off, the contract
also gave the Employer the right to “limit the number of employees who may be paid for
personal days on any particular shift, as the Employer in its discretion determines it necessary
to appropriately staff the shifts.”
In my opinion, the imminent anticipation of a large snow storm would be sufficient under
the terms of the contract to permit the Employer to suspend PTOs. This is because the
Employer has contracted to provide a certain level of services that could easily be impacted by
the occurrence of a major snowstorm. And it should be recalled that what we are talking about
here is the transportation of sick or injured people to hospital emergency rooms. Thus, I do not
think that it was unreasonable, or contrary to the terms of the contract, for the Employer’s
agents to decide on the afternoon of December 19, 2009 to deny requests for PTOs for
December 20. And although the snowstorm did not materialize, the forecasts during the
evening of December 19 were still calling for a storm on December 20.
In light of the above, when Popyk reiterated at 6:19 p.m. on December 19, that Caruso
could not take off on December 20, Caruso’s statement that he was going take off anyway
indicates an intention to ignore a direct company order, which order, in this circumstance was
reasonable and not discriminatorily motivated. Therefore, when Caruso did not show up for his
shift on December 20, this could have reasonably been viewed by the Respondent as an
intentional act of defiance and not simply an unexcused absence.
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In my opinion, these facts warranted the imposition of a one day suspension issued to
Caruso. (Similar in circumstances to the suspension issued to Boucher). As the contract calls
for the imposition of a one day suspension for an unexcused absence, it seems to me that the
Company was acting in accordance with the contract’s terms. As such, I do not conclude that
the Respondent’s imposition of the one day suspension to Caruso for his failure to report on his
December 20 shift was violative of Section 8(a)(1) and (3) of the Act.
As I have concluded that the Company did not violate the Act against Caruso, I also
conclude that it did not violate the Act by issuing a one day suspension to his fiancé. Because
of the impending storm, her request for time off was also denied. When she called in on the
evening of December 19 stating that she was too ill to come to work on December 20, this was
met with skepticism. In any event, as her case depends on a finding that the Company illegally
discriminated against Caruso, I shall recommend that the allegation involving Oliveira also be
dismissed.
As to the vacation issue, the evidence shows that Caruso, on December 19, made a
request for a vacation day on December 26. He clearly was eligible for the vacation day, but his
request under the terms of the contract was untimely inasmuch as such requests need to be
made at least two weeks in advance. Since the Company’s denial of his vacation request was
in conformity with the terms of the contract, I cannot say that it was so unreasonable as to
evidence a discriminatory motive or that the denial is evidence of disparate treatment. I
therefore conclude that this allegation should be dismissed.
Finally, as I have concluded that the Company acted in conformity with the relevant
contract provisions relating to time off requests, I cannot say that it unilaterally changed the
terms and conditions of employment as to this issue. I therefore recommend that this particular
8(a)(1) and (5) allegation be dismissed.
IV. The alleged solicitation to file a decertification petition
About eight months after NEMSA was certified and during the period that contract
negotiations were still in progress, the Company sent a letter to its employees at the Waterbury
facility. This letter, which originated from Banelli, was dated May 17, 2010. It stated as follows:
Over the past several days, we have received numerous questions from
employees about what is happening at NEMSA, what effect NEMSA’s internal
issues are having on employees, and what can be done about NEMSA. We
understand that employees in many areas may already be taking steps to seek a
decertification vote.
The Company cannot take a position on the issue of decertification at this time.
We are committed to observing the law in this situation – even if that means that
we are not allowed to speak directly with employees on the topic.
Here are the questions we have received and answers based on the information
we have at this point.
QUESTION #1: “We have heard that NEMSA has fired multiple Business
representatives and stewards in California and the Northeast. Is that true and do
you know why?”
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ANSWER #1: At last three NEMSA Business Representatives … and multiple
other stewards have been fired by NEMSA. The exact reasons for their
termination have not been disclosed.
QUESTION #2: “Was a petition to organize filed with the National Labor
Relations Board by current Business Representatives and Stewards of NEMSA?”
ANSWER #2: Yes a petition was recently filed with the NLRB by a group
seeking an election to unionize as NEMSA workers.
QUESTION #3: “Is true that an unfair labor charge has been filed against
NEMSA for unjust terminations of Stewards and Business Representatives?”
ANSWER #3: Yes, based on a letter dated May 4, 2010 … it appears that at
least two Unfair labor Practice charges have been filed against NEMSA by a
group calling itself the “NEMSA Representatives Employee Association.”
QUESTION #4: “With the termination of those Business Representatives and
Stewards who will represent us from NEMSA?”
ANSWER #4: As of today, we have been advised that Aaron Pelican and Dary
Sardad, NEMSA Business Representatives for Northern California, will now
assume responsibility for all areas in the Northeast and Pierce County,
Washington (in addition to Northern California).
QUESTION #5: “Is it true that a petition is being circulated to recall the current
NEMSA President….?”
ANSWER #5: We have heard rumors that a petition is being circulated, however
we are not aware of any specific information relating to this issue.
QUESTION #6: “We are frustrated with NEMSA and now with all this internal
turmoil can we just vote them out?”
ANSWER #6: The NLRA includes a procedure to allow employees who are
represented by a union to seek a new vote to determine if they want to keep the
same representation.
ï‚· 30%+ of all unit employees must sign petitions asking for a new vote.
ï‚· The employer cannot have anything at all to do with the petitions.
ï‚· Once there are petitions with at least 30% signed up, the interested
employees can take the documents to the NLRB (or mail them).
ï‚· At that point, the NLRB may schedule an election to give employees a
choice.
ï‚· To remain the bargaining representative, the Union would need to get a
majority vote in such an NLRB election. If not, the employees would be
non-union.
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QUESTION #7: “How can we find out more about removing the Union and what
our options are?”
ANSWER #7: Employees can contact the National Labor Relations Board, the
national Right to Work Foundation or the Right to Work Committee. Employees
can also access the website www.nlrb.org
QUESTION #8: “Why does the Company have to remain neutral on this issue?”
ANSWER #8: If it appears that management is trying to do anything other than
answer basic questions, NEMSA can file an Unfair labor Practice charge and that
would impact the rights of t hose who are looking for legitimate answers. It is
only when an actual decertification petition is filed with the NLRB that
management can legally discuss the company’s position with the employees.
Again - you have the legal right to explore your options. Ultimately, such an
important decision is up to all of you. Thank you.
Retallick testified that prior to its distribution, there were “some” Waterbury unit
employees who questioned various of the topics contained in the memorandum. He also
testified:
[S]ome employees that were coming to me and asking me what they could do to
stop affiliating with NEMSA and what was going on with NEMSA at the time and
really I couldn’t get into any communication with them about it, other than telling
them that they could call the NLRB. Then this notice came out from Mr. Banelli
hopefully trying to clarify some of the questions.
One problem with Retallick’s testimony on this point is that he did not identify who these
employees were and did not specify what it was that they actually said to him. (Nor were any of
the other foundation questions asked such as when and where these conversations took place
or who was present). Secondly, even if true, Retallick’s testimony was that “some” employees
asked how they could stop the affiliation between MEMSA and WESA. But this was not an
issue at the time that this memorandum was issued and whatever affiliation questions may have
existed in 2008 and 2009, they were superseded by the fact that NEMSA had replaced WESA
after the former had won an NLRB election in September 2009. The affiliation issue was moot
and there is no indication in Retallick’s testimony that any employees came to him in the period
before May 17, 2010 to inquire about the possibility of decertifying NEMSA.
In my opinion the disposition of this issue is mandated by the Board’s decisions in
Correction Corp. of America, 347 NLRB 632, 633 (2006) and Armored Transport, Inc., 339
NLRB 374, 378 (2003).
In Armored Transport, Inc., the Board stated:
The law is clear that an employer may not solicit its employees to circulate or
sign decertification petitions and it may not threaten employees in order to secure
their support for such petitions. An employer may not provide more than
ministerial aid in the preparation or filing of the petition. The decision regarding
decertification and the responsibility to prepare and file a decertification petition
belongs solely to the employees. “Other than to provide general information
about the process on the employees’ unsolicited inquiry, an employer has no
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legitimate role in that activity, either to instigate or to facilitate it.” Harding Glass
Co., 316 NLRB 985, 991 (1995), and cases cited therein. In this case, by
directing employees as to the decertification process by suggesting that they go
to the Board to request a new election, and by requesting that they file a
decertification petition and present the Respondent with sufficient evidence to
withdraw recognition, the Respondent did much more than merely provide
information or ministerial assistance to its employees.
In Correction Corp. of America, the Board stated:
We agree with the judge that the Respondent violated Section 8(a)(1) by
unlawfully encouraging the employees to seek decertification of the Union. “An
employer may not ‘initiate a decertification petition, solicit signatures for the
petition or lend more than minimal support and approval to the securing of
signatures and the filing of the petition.’” Sociedad Espanola de Auxilio Mutuo y
Beneficencia de P.R., 342 NLRB 458, 459 (2004) (quoting Eastern States Optical
Co., 275 NLRB 371, 372 (1985)). It is not determinative that an employer does
not expressly advise employees to get rid of the union. Armored Transport, Inc.,
339 NLRB 374, 378 (2003) (citing Wire Products Mfg. Corp., 326 NLRB 625, 626
(1998), enfd. sub nom. NLRB v. R. T. Blankenship & Associates, Inc., 210 F.3d
375 (7th Cir. 2000)). Indeed, such direct appeals are not essential to establish
that an employer solicited decertification. Id. at 378.
The Respondent argues that its statements about decertification were merely in
response to employee inquiries on how to decertify the Union. We agree with the
judge that the Respondent’s position has no merit.
The credited testimony establishes that the Respondent’s communications
about decertification were not prompted by employee inquiries and that the idea
of decertifying the Union was conceived by the Respondent and then proffered to
the employees. See, e.g., Condon Transport, Inc., 211 NLRB 297, 302 (1974).
There is no credible evidence that any employee ever asked the Respondent
how to get rid of the Union. As noted above, the only employee to testify on this
issue was de la Fuente. That testimony shows that, in response to his
complaints about health benefits, Warden Wagner falsely stated that no other
plans were available because the Union had “voted” for the current health care
packages. Then, the Respondent distorted de la Fuente’s inquiry (as to how to
obtain additional health benefits) to suggest to employees that De la Fuente had
asked how to decertify the Union. Thus, this is not a case of an employer aiding
employees in the “expression of their predetermined objectives.” Poly Ultra
Plastics, Inc., 231 NLRB 787,790 (1977) (employer’s president assisted
employees with the petition they were preparing to allow them to revoke their
authorization cards). Instead, Wagner’s posting was a “transparent attempt to
invite pro-company antiunion efforts with implied support.” NorthwestGraphics,
Inc., 342 NLRB 1288, 1297 (2004). Furthermore, the Respondent’s statement
implying that it would know who did, and who did not, support the decertification
drive added coercive force to its efforts to rid itself of the Union. Under these
circumstances, we find that the Respondent violated Section 8(a)(1) by
unlawfully encouraging its employees to decertify the Union.
Given the absence of evidence showing that employees sought information from the
employer regarding the mechanics of filing a decertification proceeding, it seems to me that the
Respondent’s May 17 memorandum, which can reasonably be read as encouraging employees
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to file a decertification petition, would be unlawful 8(a)(1) conduct under the rationales of the
aforementioned Board decisions. 6
V. The outside employment issue
For many years the Company’s employee handbook has contained a policy regarding
dual or outside employment. This reads in pertinent part:
Employees are expected to devote their full attention and effort to their positions
with the company. However, you may want to work another job. This is
acceptable as long as it does not interfere with your work here or require the use
of Company resources, including supplies, phones, people, or information. Keep
in mind that if your department needs overtime, you will be asked and expected
to work your share.
If full-time non-management employees wish to be employed by another private
provider of emergency or non-emergency ground medical transportation service
or their affiliated billing entities, (i.e. ground transportation ambulance Company
in a market in which the Company operates…), the Employee must notify the
Company and obtain prior approval.
All questions regarding any potential conflict of interest pertaining to any of the
above should be addressed to your Leader and HR.
The testimony of the Union’s witnesses shows that they were aware of this policy
because they did seek and obtain permission before getting part-time jobs for work related to
Bristol Hospital. Bristol Hospital is in a territory that abuts the territory that the Respondent
covers and for many years the Respondent has taken EMS calls to transport people to Bristol
Hospital.
The policy described above, does not absolutely prohibit the Respondent’s employees
from working for competing ambulance companies and during a stretch of years, at least four of
the Respondent’s EMTs have been employed either by Bristol Hospital or an ambulance
company that serviced the territory of that hospital.
On May 12, 2010, Bristol Hospital Emergency Medical Services, LLC sent a letter to the
Respondent which in essence, complained that the Respondent was transporting people to and
from the hospital within that hospital’s territorial jurisdiction. In substance, Bristol Hospital was
telling AMR to stay out of its territory.
In the meantime, the Union and the Company were involved in contract negotiations.
And commencing on July 21, 2010, both sides made proposals and counter proposals regarding
the issue of outside employment. In substance, the Company proposed a strict limitation on
outside employment for all full-time employees, requiring written approval and allowing the

6 In my opinion the Respondent’s reliance on R.L. White, 262 NLRB 575, 576 (1982) and Perkins
Machine Co., 141 NLRB 697, 698 (1963) is inapposite. Neither of those cases deal with situations where
an employer was involved in urging or soliciting employees to file decertification petitions. Instead, they
involved situations where company managers or supervisors told employees about their rights to revoke
authorization cards or their contractual rights to withdraw from union membership and revoke their dues
check-off authorizations.
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company to revoke any approval which actions would not be subject to the grievance procedure
of the contract. The Union’s position throughout negotiations was to reject the Employer’s
proposal on this issue. The Union, although acknowledging that full-times employee would
have to give precedence to their employment with the Respondent, made a proposal that would
be less restrictive in the ability of employees to work for other employers, including employers
that might be competitors of the Respondent.
On October 19, 2010, the parties made a tentative agreement on this issue. This was as
follows:
Section 25.01 – Outside Employment
The Employer shall be considered by all full-time employees covered by this
Agreement as their employer of first choice. Work requirements of the Employer
will have precedence over any outside employment. Employees who are unable
to maintain a high standard of work performance or are unable to report to duty
as required by the employer as a result of outside employment are subject to
appropriate corrective action.
The Employer will not pay any benefits for injuries or illness resulting from
outside employment except as provided for by the employee’s medical
insurance, PTO accruals, or required by applicable law.
Notwithstanding the tentative agreement on this issue made on October 19, 2010, the
Company, apparently in response to the attempt by Bristol Hospital to exclude AMR from its
territory, issued on November 17, 2010, a notice to AMR’s employees prohibiting them from
working at Bristol. This read:
Section 3.8 of the Employee Handbook provides that AMR employees may not
be employed by another private provider of emergency or non-emergency
ground medical transportation services without the company’s approval.
As Bristol Hospital EMS … is a direct competitor of American Medical Response,
it has been determined that employee with Bristol in any capacity while working
for AMR creates an unacceptable conflict of interest and will not be approved.
If you are currently employed with both AMR and Bristol, please contact myself
or Tony Cardenales in Human Resources no later than November 30, 2010 in
order to disclose that information. At that time you will need to inform us of your
decision to resign your employment with either AMR or Bristol.
As of December 14, 2010, any Paramedic, EMT and Transportation AMR
employee who has failed to made the appropriate disclosure to AMR and who is
found to still be working for Bristol in any capacity will be subject to termination of
employment from AMR immediately.
The Company’s witness, (Retallick), testified that shortly before issuing the November 17
notice, which clearly goes well beyond what was agreed to by the parties in the tentative
agreement made a month earlier, he had a conversation in his office with the Union’s new
business agent and that after showing him the proposed notice was told that it seemed OK.
This business agent was not a participant in the contract negotiations and was essentially a
newcomer to this area. It is inconceivable that he had the authority, or could reasonably have
been viewed as having the authority, to overturn what the parties had agreed to during the
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lengthy negotiations where substantial discussion and disagreement were expressed and
ultimately resolved over this very issue. Any contention that this alleged conversation should be
construed as a waiver is rejected.
It is clear to me that the November 17 notice constituted not only a material unilateral
change from the past practice whereby the Company typically permitted employees to work at
other competing employers, but also represented a breach of the agreement that the Union and
the Company had earlier made on this very subject. I therefore conclude that in this respect the
Employer violated Section 8(a)(1) and (5) of the Act. Quality Health Services of P.R., INC. d/b/a
Hospital San Cristobal, 356 NLRB No. 95 (2011).
Conclusions of Law
(1) By soliciting the filing of a decertification petition, the Respondent has violated
Section 8(a) (1) of the Act.
(2) By unilaterally changing its policies regarding outside employment, the Respondent
has violated Section 8(a) (1) and (5) of the Act.
(3) The Respondent has not violated the Act in other manner encompassed by the
Complaint.
(4) The aforesaid violations affect commerce within the meaning of Section 2(2), (6) and
(7) of the Act.
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.
As the evidence indicates that some employees terminated their employment with other
employers as a result of the Respondent’s November 17, 2010 policy change, it is
recommended that those employees be made whole for any loss of earnings as a result of the
Respondent’s unilateral action. Backpay shall be computed in accordance with F.W. Woolworth
Co., 90 NLRB (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283
NLRB 1187 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 7
ORDER
The Respondent, American Medical Response of Connecticut Inc., its officers, agents,
successor, and assigns, shall

7 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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1. Cease and Desist from
(a) Soliciting employees to file of a decertification petition.
(b) Unilaterally changing its policies regarding outside employment.
(c) 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) Restore and abide by the terms of the agreement setting forth the policy regarding
dual or outside employment.
(b) Make whole, with interest, any employees, who as a result of the November 17, 2010
policy change, lost their outside employment.
(c) Within 14 days after service by the Region, post at its Waterbury Connecticut facility,
copies of the attached notice marked “Appendix” 8 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 May 17,
2010.
(d) 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., May 23, 2011
_____________________
Raymond P. Green
Administrative Law Judge

8 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)–15–11
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 solicit employees to file of a decertification petition.
WE WILL NOT unilaterally change our policies regarding outside employment.
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 restore and abide by the terms of our agreement with NEMSA setting forth the policy regarding
dual or outside employment.
WE WILL make whole, with interest, any employees who lost their outside employment as a result of the
November 17, 2010 policy change.
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.
280 Trumbull Street, 21st Floor
Hartford, Connecticut 06103-3503
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, 860-240-3528.