Bristol Hospital EMS

National Labor Relations Board - Board Decisions

Dec 24, 2009

354 NLRB No. 116 (N.L.R.B. 2009)

354 NLRB No. 116
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Bristol Hospital EMS, LLC and International Associ-
ation of EMTS and Paramedics SEIU/NAGE,
Local 5000. Case 34–CA–12481
December 24, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on October 8, 2009, the
General Counsel issued the complaint on October 15,
2009, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case
34–RC–2313. (Official notice is taken of the “record” in
the representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer admitting in part and denying in part the
allegations in the complaint, and asserting affirmative
defenses.
On November 2, 2009, the General Counsel filed a
Motion for Summary Judgment and Memorandum in
Support of Motion. On November 6, 2009, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted.1 The Respondent filed a response.

1 On November 9, 2009, the Board issued an Order Correcting the
Notice to Show Cause.
Ruling on Motion for Summary Judgment2
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the basis of its
objections to the election in the representation proceed-
ing.3
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accor-
dingly, we grant the Motion for Summary Judgment.4
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Connecticut
corporation with a facility located in Bristol, Connecti-
cut, has been engaged in the operation of providing am-
bulance and medical transportation services.
During the 12-month period ending September 30,
2009, the Respondent, in conducting its operations de-
scribed above, derived gross revenues in excess of

2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kirsa-
now and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Narricot Industries, L.P. v. NLRB, ___
F.3d ___, 2009 WL 4016113 (4th Cir. Nov. 20, 2009); Snell Island
SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed
78 U.S.L.W. 3130 (U.S. Sept. 11, 2009) (No. 09-328); New Process
Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted ___ S.Ct.
___, 2009 WL 1468482 (U.S. Nov. 2, 2009); Northeastern Land Ser-
vices v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78
U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213); Teamsters Local
523 v. NLRB, ___ F.3d ___, 2009 WL 4912300 (10th Cir. Dec. 22,
2009). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB,
564 F.3d 469 (D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W. 3185
(U.S. Sept. 29, 2009) (No. 09-377).
3 In addition to denying that the Union’s certification was proper, the
Respondent also contests the validity of the Union’s certification on the
basis that the Board lacked a quorum on July 23, 2009, when it issued
the Decision and Certification of Representative in the underlying
representation case, Case 34–RC–3413. However, this defense is with-
out merit for the reasons stated above in fn. 2.
4 Thus, we deny the Respondent’s requests that the Board dismiss
the complaint or remand the proceeding for hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
$500,000 and purchased and received at its facility goods
valued in excess of $5000 directly from points outside
the State of Connecticut.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union, International Associa-
tion of EMTs and Paramedics SEIU/NAGE, Local 5000,
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on April 16,
2009, the Union was certified on July 23, 2009, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:

All full-time and regular part-time EMT-P’s, EMT-I’s,
EMT-Basics, Secretary III, and Wheel Chair Van At-
tendants, employed by the Employer at its 371 Terry-
ville Avenue, Bristol, Connecticut facility; but exclud-
ing other office clerical employees, the EMS Education
Coordinator, EMS Supervisors, the BLS instructor, all
other employees, and all guards, professional em-
ployees and supervisors as defined in the Act.

The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
By letter dated September 16, 2009, the Union re-
quested that the Respondent bargain collectively with the
Union as the exclusive collective-bargaining representa-
tive of the unit. Since about September 16, 2009, the
Respondent has failed and refused to recognize and bar-
gain with the Union as the exclusive collective-
bargaining representative of the unit. We find that this
failure and refusal constitutes an unlawful failure and
refusal to bargain in violation of Section 8(a)(5) and (1)
of the Act.
CONCLUSION OF LAW
By refusing since about September 16, 2009, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of employees in the ap-
propriate unit, the Respondent has engaged in unfair la-
bor practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union, and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Bristol Hospital EMS, LLC, Bristol, Con-
necticut, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Association of EMTs and Paramedics
SEIU/NAGE, Local 5000, as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit on terms and conditions of
employment, and if an understanding is reached, embody
the understanding in a signed agreement:

All full-time and regular part-time EMT-P’s, EMT-I’s,
EMT-Basics, Secretary III, and Wheel Chair Van At-
tendants, employed by the Employer at its 371 Terry-
ville Avenue, Bristol, Connecticut facility; but exclud-
ing other office clerical employees, the EMS Education
Coordinator, EMS Supervisors, the BLS instructor, all
other employees, and all guards, professional em-
ployees and supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Bristol, Connecticut, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
BRISTOL HOSPITAL EMS 3
forms provided by the Regional Director for Region 34,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. 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 Res-
pondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall dup-
licate 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 September 16, 2009.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. December 24, 2009

______________________________________
Wilma B. Liebman, Chairman

______________________________________
Peter C. Schaumber, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize and bargain
with International Association of EMTs and Paramedics
SEIU/NAGE, Local 5000, as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:

All full-time and regular part-time EMT-P’s, EMT-I’s,
EMT-Basics, Secretary III, and Wheel Chair Van At-
tendants, employed by us at our 371 Terryville Avenue,
Bristol, Connecticut facility; but excluding other office
clerical employees, the EMS Education Coordinator,
EMS Supervisors, the BLS instructor, all other em-
ployees, and all guards, professional employees and
supervisors as defined in the Act.

BRISTOL HOSPITAL EMS, LLC