Community Emergency Medical Services

National Labor Relations Board - Administrative Judge Opinions

Feb 10, 2004

07-CA-045582 (N.L.R.B. Feb. 10, 2004)

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Detroit, MI

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

COMMUNITY EMERGENCY MEDICAL Cases 7–CA–45582
SERVICES, INC. 7–CA–46012
7–CA–46526
and 7–CA–46540
7–CA–46543
7–CA–46571
INTERNATIONAL ASSOCIATION OF
EMTS AND PARAMEDICS, AFFILIATED
WITH SERVICE EMPLOYEES
INTERNATIONAL UNION, AFL-CIO

Patricia A. Fedewa and Darlene Haas Awada, Esqs., for the General Counsel.
Paul W. Coughenour, Esq., (Brady, Hathaway, Brady & Bretz, P.C.), Detroit, Michigan,
for the Respondent.

DECISION

Statement of the Case

ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Detroit,
Michigan on November 17-21 and December 8-10, 2003. The charges were filed between
October 28, 2002 and September 3, 2003. The fourth consolidated complaint was issued on
October 28, 2003.

After the hearing closed, the parties settled most of the allegations in the complaint with
the exception of paragraph 11(d) which alleges that Respondent, Community Emergency
Medical Services, Inc. (CEMS) violated Section 8(a)(3) and (1) on August 8, 2003 by
discharging one of its employees, paramedic Patrick Montie.

In this settlement, the Union, the International Association of EMTs and Paramedics,
agreed to withdraw and not refile all pending charges filed up to and including December 29,
2003, excluding: any charges previously settled by agreement with the NLRB; that portion of
Case 7–CA–45193(1) which was deferred to arbitration by the NLRB;1 and that portion of Case
7–CA–46543 relating to the discharge of Patrick Montie. The Union also agreed to withdraw
and rescind all data and information requests pending as of December 29, 2003.

CEMS agreed to rescind the discipline issued to Shawn Prendegrast on or about
February 1, 2003 and April 22, 2003, and remove written evidence of this discipline from its
files. Respondent has also agreed to inform Shawn Prendegrast in writing that this has been
done. The Union agreed that the employer has the right to enforce its uniform policy in a non-
discriminatory manner.

1 This matter was not before me and involves an allegation that Respondent discharged
Vicky Pavloff in violation of Section 8(a)(3) and (1).

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Respondent agreed to recognize and bargain with the Union and agreed that the
certification year shall be extended for six (6) months from the date of the parties’ first
bargaining session. The parties have agreed that the first bargaining session will take place no
later than January 19, 2004.

CEMS and the Union have agreed to maintain during bargaining the tentative
agreements previously reached and agree to the implementation of the following tentative
agreements on January 7, 2004:

Management Rights—tentatively agreed to on January 9, 2003;
Grievance Procedure and Arbitration—agreed to on December 6, 2002;
Bulletin Board—tentatively agreed to on or about November 6, 2002.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following

Findings of Fact

I. Jurisdiction

Respondent CEMS provides emergency and non-emergency medical treatment and
transportation services to the public in southeastern Michigan. Respondent admits and I find
that it 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. Alleged Unfair Labor Practices

Background

On June 12, 2002, the NLRB certified the Union as the exclusive collective bargaining
representative of Respondent’s employees in a bargaining unit consisting of all full-time and
regular part-time emergency medical technicians (EMTs), emergency medical technician-
specialists and paramedics.

On September 6, 2002, the Union hired Dennis Albers, a labor consultant, to represent it
in bargaining with Respondent. After Albers took over this responsibility from Matthew Levy, a
national representative of the Union, relations between the Union and Respondent became
increasingly contentious. On July 25, 2003, Respondent withdrew its recognition of the Union.
The General Counsel alleged that Respondent violated Section 8(a)(5) and (1) in doing so. This
dispute has been resolved by the parties’ aforementioned settlement.

Patrick Montie’s discharge

Patrick Montie worked for Respondent as a paramedic from 1997 until August 8, 2003.
At the time of his termination he was working out of the Novi, Michigan station. Montie
supported the Union and Respondent was aware that he did so. In December 2002, Montie
attempted to file a grievance on a union grievance form. Respondent’s Human Resources
Manager Bea Paige informed Montie in writing that CEMS would not accept a grievance on the
union’s form and would not allow a union representative to file a grievance on his behalf, GC
Exh. 48, Tr. 1368.

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In the spring of 2003 Montie posted union literature at one of CEMS’ stations. He was
ordered to take it down by Supervisor Brian McLaren, and also by Supervisor Jeff Saladin.
When Montie refused to take union materials down at McLaren’s direction, McLaren removed
the material himself (Tr. 1388). Montie posted union literature at the station again after McLaren
removed it. I credit Montie’s testimony that he posted literature at the station that was unrelated
to the Union and that Respondent did not disturb this material.

The incident of August 6, 2003

Ken Slinker, Respondent’s Chief Operating Officer, testified that he fired Patrick Montie
solely on the basis of his conduct during an ambulance run to a private residence in the early
morning hours of August 6, 2003. Thus, I deem irrelevant evidence introduced by Respondent
regarding an ambulance run in July 2003 and evidence regarding prior discipline that
Respondent issued to Montie.2

On a 24-hour shift that ran from 7:00 a.m. August 5, to 7:00 a.m. August 6, 2003, Montie
worked in an ambulance with paramedic Richard Dunn. These two paramedics had worked as
partners on a regular basis since January 2003 and at least by August, disliked one another.3
Montie and Dunn responded to a call at about 10 or 11:00 p.m. on August 5. Montie drove the
ambulance and Dunn operated as the attending paramedic. After the call or run was over, they
went back to where they were parked and waited for their next call. Montie went to sleep while
they waited, which is not a violation of any work rule.

At about 2:35 a.m. on August 6, Supervisor Troy Rowe contacted Dunn and dispatched
the ambulance to a residence in Novi. Rowe dispatched the ambulance as a #1 priority call,
which signifies a medical emergency. Dunn drove to the residence; Montie woke up enroute or
when they arrived. Dunn and Montie were joined at the house by two Novi fire trucks. They
entered the house with four firefighters at 2:42 a.m. and were at the residence for 21 minutes,
leaving at 3:03 a.m. (R. Exh. 18). Dunn and Montie’s usual practice, and that of other CEMS
employees, was to alternate as to which one attended to the patient. Generally, this was the
paramedic who did not drive to the scene. Thus, for the call in question, Montie would normally
act as attending paramedic.

When the two paramedics and four firefighters entered the house, they determined that
the patient was a female diabetic who called 911 very frequently for non-emergencies. Fireman
James Durham took her vital signs, such as her pulse and blood pressure, and then determined
that the patient was neither seeking medical treatment nor transportation to a hospital or clinic.
She had gone to bed without her insulin and felt too dizzy to get out of bed to get it herself. The
patient asked the paramedics and firefighters to get her insulin for her. The paramedics and
firemen searched the kitchen for her insulin before finding it. The patient, who never left her
bed, administered the insulin by injecting herself with an insulin pen (essentially a prefilled
syringe). Richard Dunn entered the bedroom and determined that the patient knew who she
was, where she was and was oriented as to time. Dunn then obtained her vital signs and had
the patient sign a document refusing medical treatment or transportation.4
Continued
2 Because it is irrelevant, I make no findings of fact with regard to the allegations that Montie
was guilty of misconduct during the ambulance run in July.
3 There is no indication that Montie and Dunn’s mutual antipathy had anything to do with the
Union. Neither of them signed the decertification petition that was at issue in this case prior to
the settlement.
4 This document is referred to as an “S & R” or sign and release form. It’s not entirely clear

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_________________________
There is a conflicting testimony as to whether Patrick Montie made contact with the
patient before Dunn. The paramedic who first makes contact with the patient is the attending
paramedic and is responsible for completing the call. Montie testified that he never entered the
patient’s bedroom. Dunn testified that Montie went into the patient’s bedroom before he did.
James Durham, one of Respondent’s EMTs, also works for the Novi fire department and was
one of the firemen present. Durham recalled seeing Dunn in the patient’s bedroom, but not
Montie.

I find that Montie entered the bedroom and made contact with the patient before Dunn.
First of all, consistent with the usual practice of Respondents’ employees, Montie would have
been the attending paramedic. Secondly, a close reading of Durham’s testimony leaves open
the possibility that Montie was in the bedroom before Dunn and that Durham merely failed to
notice his presence. In any event, Dunn reported to his supervisor that Montie had initiated
patient contact and I conclude that CEMS had a reasonable belief that this was so—regardless
of which paramedic actually entered the patient’s bedroom first.

After the insulin pen had been found and passed to the patient, Montie left the house
and went to sleep in his ambulance. Dunn went out to ambulance to get a clipboard to assist
with the completion of the paperwork for the run and noticed Montie sleeping. The ambulance
left the residence as a priority 3 (out of 4) or nonemergency call, rather than a priority 1 call.
When the ambulance returned to its station, Dunn called Supervisor Troy Rowe and complained
about Montie’s conduct.5

Rowe told Dunn to submit a written report about the incident and to have Montie call
him. When Montie called, Rowe told him to submit a report within 24 hours. Montie declined to
do so. Montie told Rowe that whether or not he was the attending paramedic was
inconsequential since Dunn had obtained the appropriate signed releases from the patient.
Dunn submitted an incident report to Rowe, which Rowe forwarded to Respondent’s Chief
Operating Officer Ken Slinker. Rowe had told Slinker about the incident on the telephone on the
morning of August 6.

On Friday, August 8, 2003, when Montie reported to work, he was escorted to a
conference room to meet with Ken Slinker. Slinker had already prepared Montie’s termination
notice, but may not have signed it. By Montie’s account, Slinker told him Respondent was firing
him because he had initiated patient contact and had not obtained a signed release form from
the patient. Montie testified that he told Slinker that since CEMS had a signed release it didn’t
matter who obtained it, Montie or Dunn. Moreover, Montie testified that he denied having any
contact with the patient.

Slinker testified that Montie told him that he had talked to the patient but hadn’t done
anything for her. He testified that because Montie had made contact with the patient he was
guilty of “patient abandonment” in leaving the house before a signed release form had been
obtained from the patient. Slinker was aware that Dunn had obtained such a release. Prior to
whether the patient’s vital signs were taken once or twice. Similarly, Dunn may have simply
recorded vital signs taken by a fireman.
5 Respondent’s witnesses testified that individuals from the Novi Fire Department
complained about Montie’s conduct. I need not make any finding as to whether such complaints
were received.

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the end of the meeting, Slinker presented Montie with his termination notice, which stated that
“patient abandonment” was the reason for the discharge.

Analysis

In order to prove a violation of Section 8(a)(3) and (1), the General Counsel must
generally make an initial showing that (1) the employee was engaged in protected activity; (2)
the employer was aware of the activity; and (3) that animus towards the protected activity was a
substantial or motivating reason for the employer’s action. Once the General Counsel makes
this initial showing, the burden of persuasion shifts to the Respondent to prove its affirmative
defense that it would have taken the same action even if the employees had not engaged in
protected activity, Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir. 1981); La
Gloria Oil and Gas Co., 337 NLRB No. 177 (2002).

The Board requires the General Counsel to make an initial showing sufficient to support
an inference that the alleged discriminatee’s protected conduct was a ‘motivating factor’ in the
employer’s decision. Then the burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of protected conduct, American Gardens
Management Co., 338 NLRB No. 76 (November 22, 2002). Unlawful motivation is most often
established by indirect or circumstantial evidence, such as the suspicious timing of disciplinary
action, pretextual reasons given for the discipline and disparate treatment of the
discriminatee(s) compared with employees without known union sympathies.

In the instant case, the General Counsel has established that Respondent was aware
that Patrick Montie supported the Union and had engaged in activities to assist the Union, such
as posting union literature in the stations. I infer that Ken Slinker, the management official who
fired Montie, was aware through Montie’s supervisors and through Human Resources Director
Bea Paige, of Montie’s support for the Union and his posting of union materials. Given the level
of hostility between Respondent and the Union, I infer that lower level supervisors advised
Slinker and other high-level management officials of any significant activity in support of the
Union by CEMS employees.

There is also evidence of anti-union animus on the part of Respondent and Ken Slinker
in particular. The relationship between CEMS and the Union was hostile—particularly after
Dennis Albers began to represent the Union in September 2002. When Patrick Montie
attempted to file a grievance with Respondent on a union form, it was rejected because it was
on a union form. Moreover, Respondent’s discriminatory reaction towards union literature
posted by Montie, leads me to conclude that CEMS bore animus towards Montie by virtue of his
union activities. Finally, Ken Slinker’s August 2, 2002 email [a year prior to Montie’s discharge]
regarding employee Andy Emler indicates that Slinker bore animus to employees who actively
supported the Union.

Regarding Emler, Slinker wrote, “[p]erhaps he WAS a good employee but I would
respectfully disagree that he is one now. He is the one who ran to the union about having the
car moved from Sinai and he is also one of a pair who consistently has bills missing or
incomplete documentation. His absence and tardy record is no better than some of our worst
employees and he lobby’s behind our backs for whatever is good for Andy.” (GC Exh. 45).

The General Counsel argues that I should infer that Respondent was motivated by anti-
union animus in discharging Patrick Montie on August 8, 2003. I find that there is insufficient
evidence to draw such an inference. The General Counsel relies on:

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1. the timing of Montie’s discharge, which occurred approximately two weeks after
Respondent withdrew its recognition of the Union;

2. alleged disparate treatment of Patrick Montie when compared with employees
without known union sympathies;

3. an allegedly inadequate investigation of the August 6 incident;

4. shifting reasons advanced for Montie’s termination.

5. the implausibility that Respondent would fire Montie for such a minor offense, without
a discriminatory motive.

Timing

I conclude that the timing of Montie’s discharge in of itself does not establish
discriminatory motive. Montie’s activities on behalf of the Union occurred several months before
his termination. His discharge was certainly not motivated by anti-union animus regarding
anything he had done recently. Furthermore, the fact that Respondent withdrew recognition of
the Union two weeks prior to Montie’s discharge does not significantly bolster the General
Counsel’s theory of discriminatory motive. Finally, I conclude that there is insufficient other
evidence on which to conclude that the timing of the discharge suggests discrimination.

Alleged Disparate Treatment

In contending that Montie was disparately treated, the General Counsel relies primarily
on one-day suspensions issued to Tara Pina and Shaina Shevein in April 2002, GC Exh. 38.
Pina and Shevein were suspended for failing to obtain an S & R form while on a call at a nursing
home. There is virtually no evidence regarding details of this incident in the record, Tr. 578.
However, the fact that Pina and Shevein were at an institutional facility and not at a private
residence makes their situation distinguishable from Montie’s. The patient would not have been
completely alone when they left the scene. I find that this incident does not support the General
Counsel’s contention that Respondent fired Patrick Montie for discriminatory reasons.6

There is no credible evidence that other employees, for whom there is no evidence of
union support, were treated more leniently. Patrick Montie made some charges alleging serious
on-the-job misconduct by Richard Dunn. I find that Respondent was unaware of these
allegations until approximately August 21, 2003, two weeks after Montie was discharged. I draw
no inferences from Respondent’s failure to investigate these allegations—which were not
reported by any other source. The General Counsel also alleges disparate treatment on the
grounds that CEMS did not confront Dunn about violating the Southeastern Michigan Protocol in
not recording the patient’s blood sugar on the run form on August 6. It has not been established
that Dunn violated this Protocol.7 Dunn testified without contradiction that he could not have
taken the patient’s blood sugar without her consent. It has not been established that he was
obliged to ask the patient to take her own blood sugar reading and then record it.
6 I simply do not understand how the treatment of Lavon West, whom Respondent fired,
supports the General Counsel’s theory of this case.
7 First of all, the General Counsel has not established that the provisions of the Protocol,
Exh. G.C. 47, page 407, relating to diabetic emergencies, applied to the August 6 run. There
was no testimony adduced at hearing on this subject.

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Allegedly Inadequate Investigation

The General Counsel contends that Respondent’s discriminatory motive is indicated by
its failure to do a more thorough investigation of the August 6 incident, for example, by
interviewing the four firefighters who were at the residence. However, CEMS provided Patrick
Montie an opportunity to provide his version of events. Supervisor Troy Rowe discussed the
incident with Montie on the morning of August 6, and gave him an opportunity to present
Respondent with a written response to the allegations made against him. Montie simply
declined to make the report Rowe requested. Since Montie declined to do so, I do not infer
discriminatory motive from the fact that CEMS did not try to interview the fire department
personnel who were also at the residence during the run in question, or the fire chief who
allegedly complained about him. Indeed, there is no evidence that Montie suggested to Rowe
or Slinker that they talk to the fire department personnel to confirm his version of events.

Even more importantly, Respondent relied primarily on Dunn’s complaints about Montie
in terminating Montie. The argument that Montie made to Rowe and Slinker emphasized his
belief that his conduct did not constitute significant misconduct. Indeed, he told both of them
that it didn’t matter whether he or Dunn was the attending paramedic. Thus, it was not that
significant that Respondent didn’t try harder to resolve any discrepancies in the accounts of
Dunn and Montie. Moreover, it is more likely than not that Montie never claimed that Dunn was
the attending paramedic. He told Rowe and Slinker that since CEMS had an S & R form from
the patient, the fact that he went out to the ambulance and went to sleep while Dunn completed
the run did not constitute significant misconduct.

Shifting Reasons

The General Counsel’s argument regarding shifting reasons relies on Patrick Montie’s
disputed testimony. Ken Slinker testified that he fired Montie solely on the basis of the August 6
incident (Tr. 1049)8 and that he told Montie at the outset of the August 8 meeting that the issue
was patient abandonment (Tr. 1032). I therefore, decline to infer discriminatory motive on the
basis on allegedly shifting reasons for the discharge.

Implausibility

Finally, I decline to infer discriminatory motive on the grounds that it is implausible that
CEMS would have fired Montie for his behavior on August 6, without a discriminatory motive.
There are factors indicating that Montie’s misconduct, if any, was not that significant. For
example, he left the patient’s residence only after he and others determined that the patient did
not need any medical treatment or transportation. Moreover, the only tasks performed by
Richard Dunn after Montie went out to the ambulance were taking the patient’s vital signs,
possibly for a second time, and obtaining a signed release.

On the other hand, James Durham, the General Counsel’s witness, testified that when a
paramedic or EMT initiates patient care, he or she must treat the patient, transport the patient,
or get a signed refusal of treatment and transport. His testimony also supports Respondent’s
position that if the attending paramedic or EMT does not do one of these three things, he or she
is guilty of patient abandonment. Respondent had a reasonable belief that Patrick Montie
8 Respondent’s counsel raised other issues and implied that they were relevant to the
discharge. I do not infer discriminatory motive simply because counsel and his witness were not
in sync with one another.

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initiated patient contact and that he was the attending paramedic during the ambulance run in
question—regardless of whether this was in fact the case. Thus, I cannot conclude that
Respondent’s belief that Montie was guilty of patient abandonment was unreasonable.

Additionally, the fact that Dunn obtained a signed release from the patient does not lead
me to the conclusion that the incident was so trivial that CEMS could not have discharged
Montie without having a discriminatory motive. When Montie left the residence, he had no way
of knowing whether Dunn would obtain the signed release or not. Respondent had a
reasonable belief that Montie placed Dunn in a position where he had to assume Montie’s
responsibility to obtain the signed release.

For the reasons stated herein, I find that the General Counsel has failed to make a prima
facie case that Patrick Montie’s discharge was motivated by Respondent’s anti-union animus.
Thus, the General Counsel failed to establish that Respondent violated Section 8(a)(3) and (1)
of the Act in terminating Patrick Montie. For that reason I dismiss paragraph 11(d) of the
Complaint, Case No. 7–CA–46543.

Dated, Washington, D.C., February 10, 2004.

Arthur J. Amchan
Administrative Law Judge