Florida Ambulance Service

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 459 (N.L.R.B. 1981)

FLORIDA AMBULANCE SERVICE
SAS Ambulance Service, Inc., d/b/a Florida Ambu-
lance Service; MSK Ambulance Service, Inc.,
d/b/a Atlas Ambulance Service; and LBJ Am-
bulance Service, Inc., d/b/a C & R Ambulance
Service and 1199, National Union of Hospital
& Health Care Employees, Retail, Wholesale
and Department Store Union, AFL-CIO. Cases
12-CA-9291, 12-CA-9292, 12-CA-9293, and
12-CA-9456
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 8, 1981, Administrative Law Judge
Howard I. Grossman issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed limited exceptions and a brief in sup-
port thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions' of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
'The Administrative Law Judge found, and we agree, that Respond-
ent demanded the names of union members as a precondition to engaging
in collective bargaining, that Respondent's demand was irrelevant to its
bargaining position and had ominous overtones in light of Respondent's
past violations of Sec. 8(a)3), and that the demand does not constitute an
adequate defense to the allegation that Respondent violated Sec. 8(aH5)
by refusing to meet with the Union's authorized bargaining representa-
tives. See Nomad Division Skyline Corporation. Inc., 240 NLRB 737
(1979). Thus, the Administrative Law Judge implicitly considered Re-
spondent's conduct in this matter to be unlawful. but made no specific
finding of a violation.
The General Counsel has excepted to the Administrative Law Judge's
failure to make the specific finding that Respondent violated Sec. 8(a)(5)
and (I) of the Act as alleged in the complaint by demanding the names of
union members as a precondition to engaging in collective bargaining.
We find merit in the exception. We shall amend the Conclusions of Law
and the Order accordingly, and shall issue a notice in lieu of that recom-
mended by the Administrative Law Judge.
2 In the section of the Decision entitled "The Remedy," the Adminis-
trative Law Judge recommended that Respondent be required to cease
and desist from "in any other manner" infringing upon its employees'
statutory rights. The basis of this recommendation was Respondent's
egregious and continuing unfair labor practices which demonstrated a
disregard of its employees' fundamental statutory rights, as well as the
fact that Respondent had been subject to a broad order such as this in the
previous proceeding before the Board. See SAS Ambulance Service. Inc..
d/b/a Florida Ambulance Service. et al., 255 NLRB 286 (1981) However,
the Administrative Law Judge inadvertently failed to include this broad
proscription in his recommended Order. We agree with his recommenda-
tion, and shall modify the Order accordingly. See Hickmoul Foods. Inc.,
242 NLRB 1357 (1979).
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980). Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
258 NLRB No. 65
AMENDED CONCI.USIONS OF LAW
Delete Conclusion of Law 6 and substitute the
following:
"6. By refusing upon demand to meet with the
Union's authorized bargaining representatives, by
unilaterally engaging in individual bargaining with
the employees in the unit described in paragraph
4(c) above, by unilaterally granting said employees
a wage increase on or about November 7, 1980,
and by demanding the names of union members as
a precondition to engaging in collective bargaining
with the Union, Respondent has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
SAS Ambulance Service, Inc., d/b/a Florida Am-
bulance Service; MSK Ambulance Service, Inc.,
d/b/a Atlas Ambulance Service; and LBJ Ambu-
lance Service, Inc., d/b/a C & R Ambulance Serv-
ice, Clearwater, Florida, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Delete paragraph l(d) and substitute the fol-
lowing:
"(d) Demanding the names of union members as
a precondition to engaging in collective bargaining
with the Union.
"(e) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To refrain from the exercise of any or all
such activities.
We will not refuse to bargain with any au-
thorized agent or agents of 1199, National
Union of Hospital & Health Care Employees,
Retail, Wholesale and Department Store
Union, AFL-CIO, as the exclusive representa-
tive of all our employees in each of the bar-
gaining units stated below.
WE WILL NOT bargain individually with any
of our represented employees in any of the
units stated below.
WE WILL NOT unilaterally grant wage in-
creases to our employees in the units stated
below without prior consultation and bargain-
ing with their representative. Nothing herein
shall be construed as requiring any wage in-
crease heretofore granted to be revoked. Since
our companies interchange employees and are
an integrated business enterprise, the appropri-
ate unit for each company at our Clearwater,
Florida, facility, is as follows:
All full-time and regular part-time registered
emergency technicians, registered paramed-
ics and licensed ambulance drivers; exclud-
ing office clerical employees, shift leaders,
dispatchers, mechanics, guards and supervi-
sors as defined in the Act.
WE WILL NOT demand the names of union
members as a precondition to engaging in col-
lective bargaining with the Union.
WE WILL grant to our employees employed
by SAS Ambulance Service, Inc., d/b/a Flor-
ida Ambulance Service, and by MSK Ambu-
lance Service, Inc., d/b/a Atlas Ambulance
Service, in the units described above, wage in-
creases equal to those previously granted on
November 7, 1980, to our employees em-
ployed by LBJ Ambulance Service, Inc.,
d/b/a C & R Ambulance Service, retroactive
to such date or the date of an individual em-
ployee's initial employment, whichever is later,
with interest.
WE WILL, upon request, bargain for I year
with any authorized agent or agents of the
above-named labor organization as the exclu-
sive representative of all our employees in
each unit described above, with respect to
rates of pay, wages, hours, and other terms
and conditions of employment, and, if an un-
derstanding is reached, embody such under-
standing in a signed agreement.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Sec-
tion 7 of the National Labor Relations Act, as
amended.
SAS AMBULANCE SERVICE, INC.,
D/B/A FLORIDA AMBULANCE SERV-
ICE; MSK AMBULANCE SERVICE,
INC., D/B/A ATLAS AMBULANCE
SERVICE; AND LBJ AMBULANCE
SERVICE, INC., D/B/A C & R AMBU-
LANCE SERVICE
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge:
This case was heard on December 19, 1980,1 in Tampa,
Florida. The charges in cases 12-CA-9291, 12-CA-9292,
and 12-CA-9293, were filed on August 4 by 1199, Na-
tional Union of Hospital & Health Care Employees,
Retail, Wholesale and Department Store Union, AFL-
CIO (herein the Union or the Charging Party), and a
consolidated complaint was issued on September 3. The
charge in Case 12-CA-9456 was filed on November 12,
and an amendment to the consolidated complaint was
issued on December 4. As thus amended, the complaint
alleges that SAS Ambulance Service, Inc., d/b/a Florida
Ambulance Service (herein Respondent SAS); MSK
Ambulance Service, Inc., d/b/a Atlas Ambulance Serv-
ice (herein Respondent MSK); and LBJ Ambulance
Service, Inc., d/b/a C & R Ambulance Service (herein
Respondent LBJ (all three enterprises referred to collec-
tively herein as Respondent) violated Section 8(a)(5) of
the National Labor Relations Act, as amended (herein
the Act), by (1) refusing to bargain with the Union's bar-
gaining committee because it included former employees
of Respondent and because the Union declined to reveal
the names of its members in the bargaining unit; (2) en-
gaging in individual bargaining with employees in the
bargaining unit; and (3) unilaterally implementing a wage
increase pursuant to said individual bargaining.
Upon the entire record, including my observation of
the demeanor of witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondents SAS, MSK, and LBJ, three separate
Florida corporations, have been affiliated business enter-
prises with common officers, ownership, management,
and supervision; have formulated and administered a
common labor policy affecting employees of said corpo-
rations; have shared common premises and facilities in
Clearwater, Florida; and have interchanged personnel
with each other. Said business enterprises constitute a
single integrated business enterprise and a single employ-
er within the meaning of the National Labor Relations
All dates hereinafter are in 1980 unless otherwise specified.
460
FLORIDA AMBULANCE SERVICE
Act, and are engaged in providing ambulance service in
Pinellas County, Florida. During 1979, Respondent de-
rived gross revenues in excess of $500,000 and provided
services valued in excess of $50,000 for the city of St.
Petersburg, which is directly engaged in interstate com-
merce. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act. 2
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In the Board's recent decision involving the same Re-
spondent,3 the Board concluded that Respondent violat-
ed Section 8(a)(1) by various acts of interference with its
employees' Section 7 rights, and also, on January 9,
1980, violated Section 8(a)(3) by discriminatorily dis-
charging employees Ronald Hollins and Nicholas
Bojack. 4
On April 8, after a Board election, the Union was cer-
tified as the exclusive collective-bargaining representa-
tive of the employees of each of the individual Respond-
ents employed at their Clearwater, Florida, facility in the
following appropriate and identical units:
All full-time and regular part-time registered emer-
gency medical technicians, registered paramedics
and licensed ambulance drivers; excluding office
clerical employees, shift leaders, dispatchers, me-
chanics, guards and supervisors as defined in the
Act.
B. The Bargaining History
Subsequent to certification, the employees' organizing
committee selected a bargaining committee.5 On June 12,
committee members Isom, Neville, Hollins, and Bojack
went to the office of William W. Stanley, president of all
three Respondent corporations, and requested a meeting.
Isom testified without contradiction that Stanley's secre-
2 On March 26, 1981, the Board issued its decision in SAS Ambulance
Service, Inc.. d/b/a Florida Ambulance Service. er al., 255 NLRB No 31, a
case involving the same parties wherein the Union is named as "SAS
Ambulance Workers Organizing Committee, 1199, National Union of
Hospital & Health Care Employees. RWDSU, AFL-CIO." However,
the record herein establishes that the Union as named in the caption was
certified by the Board on April 8, 1980, as the representative of Respond-
ent's employees. There being nothing in the record to warrant my chang-
ing the name of the certified Union so as to conform it to that stated in
the Board's aforesaid Decision, I shall leave it as established by the plead-
ings herein.
' Ibid.
I In the proceeding before the Administrative Law Judge in SAS Am-
bulance Service. supra. Respondent contended that Hollins and Bojack
were discharged because of their participation in the distribution of leaf-
lets which were defamatory with respect to Respondent. This contention
was rejected by the Administrative Law Judge in his Decision dated Oc-
tober 15, and by the Board
5 The members of the bargaining committee were Patrick Isom. an or-
ganizer; employees Bill Wade and Jeff Lowe: former employees Ronald
Hollins and Nicholas Bojack; and two other former employees identified
as Neville and Beattie.
tary went back into the office and returned with the
message that Stanley would meet with Isom, but not
with the other committee members. Isom thereafter had
a telephone conversation with Stanley in which the latter
stated his refusal to meet with former employees of Re-
spondent.
On July 3, Stanley met with Isom and one other
member of the committee who was employed, Bill
Wade. Stanley was accompanied by Barry Mogil, vice
president and general manager of all three Respondent
corporations. According to Isom, Stanley again refused
to meet with former employees, and demanded a list of
current union members. He also refused to meet at a neu-
tral place, and was "very insistent" upon having meet-
ings only at his office and during working hours. Isom
told Stanley that he was not entitled to the names of
union members until after negotiations had been complet-
ed, and that the Union had made a checkoff request.
Stanley's testimony partially corroborated Isom's, and
was partially equivocal. He acknowledged having ex-
pressed a willingness to meet with union members in Re-
spondent's offices during normal business hours, but
without the presence of former employees. Asked wheth-
er he would object to the presence of former employees
at meetings conducted on "neutral territory," Stanley
said that he would have "no control" over this, and
thought that he said he would accept if it became a "ne-
cessity." I credit Isom's version of the July 3 meeting.
C. Respondent's Contract With the City of St.
Petersburg
Respondent had a contract for services to be provided
to the city of St. Petersburg, one of the provisions of
which was that the city pay Respondent $100,000 annu-
ally to offset "bad debts" incurred by the latter. If the
bad debts did not equal 100,000, the difference was to
be refunded by Respondent to the city.
Deputy City Manager Lawrence E. Arnold testified
that, on July 28, he met with Hollins, Bojack, Beattie,
and Neville at their request. They protested to Arnold
that Respondent was not making proper reimbursement
to the city under the bad-debt provision of the contract,
and that it was not providing adequate service. Arnold
did not believe, however, that there was any direct im-
plication of fraud. The city thereafter conducted an 8-
week audit of Respondent's contract, and determined
that Respondent was in basic compliance with the agree-
ment. Arnold informed Respondent of the results of the
audit by letter dated October 6.
Stanley initially testified that he did not know the date
that the employees complained to the city manager, and
again stated that he was "lost for notes." It was not until
he saw a copy of Respondent's Exhibit I (the St. Peters-
burg report, which cites July 29 as the date of the com-
plaint) that Stanley gave July 30-31 as the date he
learned about the complaint. However, there is no refer-
ence to the matter in Stanley's affidavit given on August
13. According to his testimony, the affidavit closes with
a statement of Stanley's willingness to bargain in Re-
spondent's offices during business hours, without the
presence of former employees, provided that the Union
461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discloses at the first session the names of Respondent's
employees who were union members.
D. The August 4 Meeting
Following the unsuccessful July 3 meeting, Isom re-
quested assistance from the Federal Mediation Service,
and thereafter met with General Manager Mogil on
August 4. Isom was accompanied by Bojack, Hollins,
and Neville. Isom testified that Mogil restated Respond-
ent's position; to wit, that it would only meet with com-
mittee members who were still employed, and would
only meet during working hours at Respondent's place
of business. Although Mogil did not testify, Stanley af-
firmed that he had instructed Mogil to insist on meeting
only during working hours in Respondent's offices with-
out the presence of former employees. It is obvious that
Isom's account of the August 4 meeting is accurate.
E. Allegations Admitted by Respondent
The pleadings establish that Respondent LBJ, begin-
ning about August 18, engaged in individual bargaining
with employees in the certified unit, and, about Novem-
ber 7, unilaterally implemented a wage increase as a
result of such individual bargaining.
F. The District Court Proceeding
In addition to issuance of the complaint herein, the Re-
gional Director filed a petition in a United States district
court for injunctive relief under Section 10(j) of the Act,
and the matter was heard on October 9. The district
court order shows that Respondent then argued before
the court that the hostility of Bojack and Hollins was
such that Respondent's refusal to bargain with them as
committee members was justified. "Respondents allege,"
the court's order states, "that the two were terminated
because they participated in the distribution of literature
and statements which Respondents believe were calculat-
ed to disparage and financially harm them." However,
the court was provided with a copy of the October 15
Decision of the Administrative Law Judge in the prior
proceeding which rejected this defense, and the court
thereafter issued its injunction on October 20, to remain
in effect until final disposition of the matter by the
Board. 6
G. Respondent's Defense
Respondent makes the same general defense in this
proceeding that it has advanced previously, with some
additional argument. Thus, Stanley testified herein that
he learned from the testimony of Hollins during the
former Board hearing (May 12 and 13) that Neville and
Beattie had also distributed the allegedly defamatory
leaflets. According to Respondent, this formed part of
the basis of Stanley's alleged belief that Neville and Beat-
tie (in addition to Hollins and Bojack) possessed such
animus against Respondent as to "create an atmosphere
not conducive to good faith bargaining." According to
6As noted supra, fn. 2, the Board's Order affirming the Administrative
Law Judge was issued on March 26, 1981.
Stanley, this was the reason for Respondent's refusal to
bargain with such individuals on July 3.
Respondent did not, however, take any action against
Neville and Beattie because of the leaflet distribution.
Beattie was discharged prior to July 3 because of alleged
"multiple" traffic violations. Neville was disabled on July
3, was then receiving workmen's compensation, and was
subsequently discharged because of alleged falsification
of an employment application and failure to reveal prior
surgery.
As described above, Stanley testified that he learned
on July 30 or 31 of the July 28 visit and protest of Hol-
lins, Bojack, Neville, and Beattie to the St. Petersburg
Deputy City Manager, which Respondent calls an at-
tempt "to financially harm nay cripple, the Respondent."
Accordingly, Respondent's "initial refusal to bargain
arose from its perception that the four former employees
were attempting indirectly in January 1980 what they at-
tempted to do directly on July 28, 1980. It can be said
only that Respondents' pre-conceived fears were later
warranted and only by slightly more than one month."
In support of its admitted refusal to bargain, Respond-
ent cites dictum in General Electric Company v.
N.L.R.B. that there may be an exception to the general
rule permitting either side to choose its bargaining repre-
sentative, but only in "rare . . . situations so infected
with ill-will, usually personal, or conflict of interest as to
make good-faith bargaining impractical."8
Respondent's principal authority, however, is The Ken-
tucky Utilities Company, 76 NLRB 845 (1948), a case in
which the Board held that respondent therein was not
justified in refusing to bargain with a union agent despite
the latter's hostility to respondent, but where the Board
was reversed on this point by the Court of Appeals for
the Sixth Circuit.9 The court's reasoning was grounded
on a finding by the Trial Examiner that the union agent
made speeches saying that he had a grudge to settle with
the company, that some of the company's officials were
liars, that the company "did not give a damn for the wel-
fare of its employees," and that the union agent hoped
the company would go broke and be forced to sell out to
the Tennessee Valley Authority. ° "His expressed hostil-
ity to the respondent and his purpose to destroy the re-
spondent financially made any attempt at good faith col-
lective bargaining a futility," in the court's opinion. Ad-
ditional reasons considered by the court were the facts
that the agent had not been personally chosen by the em-
ployees, that he had been withdrawn on two prior occa-
sions at respondent's request, and that other union repre-
sentatives had orally agreed that he was not a proper
person to represent the employees. "
Respondent in this case therefore concludes that to re-
quire it "to bargain with these former employees would
encourage even more blatant conduct from them and
make a mockery out of good faith bargaining."
7412 F.2d 512 (2d Cir. 1969)., enfg. as modified 173 NLRB 253 (1968).
"Id. at 517.
9N.L.R.B. v. Kentucky Utilities Company, 182 F.2d 810 (6th Cir. 1950),
enfg. as modified 76 NLRB 854.
'°Id. at 812.
" Id. at 813-814
462
FLORIDA AMBULANCE SERVICE
H. Factual and Legal Analysis
I. Respondent's refusal to meet with the Union's
authorized bargaining representatives
Section 7 of the Act guarantees to employees the right
"to bargain collectively through representatives of their
own choosing," and Respondent's burden, as it concedes,
is to establish that its admitted refusal to bargain with the
representatives selected by the certified Union was war-
ranted because this case presented one of those "rare
. . situations so infected with ill-will, usually personal,
or conflict of interest as to make good-faith bargaining
impractical," or, stated otherwise, that there was "per-
suasive evidence that the presence of the particular indi-
vidual [or individuals] would create ill will and make
good-faith bargaining impossible.' I conclude that Re-
spondent has not met this burden.
Respondent's initial refusal to bargain occurred on
June 12 when the bargaining committee requested a
meeting at Stanley's office, and Stanley responded
through his secretary that he would meet with Isom but
not with other committee members. This message was
repeated in a later telephone conversation between Stan-
ley and Isom and again on July 3 when Stanley's condi-
tion for bargaining, expressed directly to Isom, was that
there be no former employees participating in the negoti-
ations. Stanley also rejected Isom's request that bargain-
ing take place at a "neutral" location other than Re-
spondent's offices, and demanded a list of union members
as a condition for bargaining. Stanley's testimony con-
cerning his own affidavit establishes clearly that Re-
spondent demanded bargaining at its own offices, the
names of all union members, and the absence of former
employees as a prerequisite to negotiations.
As noted, Respondent defends with the assertion that
its "initial refusal to bargain arose from its perception
that the four former employees [Hollins, Bojack, Neville,
and Beattie] were attempting indirectly in January 1980
what they attempted to do directly on July 28, 1980."
The argument is replete with error. In the first place, the
Board's decision in the former proceeding establishes
that the employee distribution of leaflets in January was
protected activity, and that Respondent's discharge of
Hollins and Bojack because of this activity was violative
of Section 8(a)(3) of the Act. Accepting at face value
Stanley's testimony that he learned during the prior
Board hearing that Neville and Beattie also distributed
leaflets, such knowledge is not a defense to Respondent
in this case. Employee participation in protected activity,
without more, cannot be equated with employee ill will
of a degree sufficient to warrant an employer's refusal to
bargain with the employees. Such employee activity is
no more a defense to the 8(a)(5) allegation in this case
' General Electric Company v. N. LR.B. supra.
" KDEN Broadcasting Company, a wholly owned subsidiary of North
American Broadcasting Company, Inc., 225 NLRB 25, 35 (1976). See also
Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda
County. etc. (Silas F Royster d/b/a East Bay Consultants), 183 NLRB
1330 (1970), enfd. 459 F.2d 694 (9th Cir. 1972); Deeco. Inc., 127 NLRB
666 (1960); Roscoe Skipper. Inc.. 106 NLRB 1238 (1953), enfd. 213 F.2d
793 (5th Cir. 1954)
than it was to the 8(a)(3) charge in the former proceed-
ing.
The Board's decision in the prior case shows that the
employee leaflet complained about unsafe ambulances,
and that Hollins testified that public officials could assist
the employees' cause because the city of St. Petersburg
had a contract with Respondent for ambulance service. "
Respondent now argues in this proceeding that its "ini-
tial" refusal to bargain (June 12) arose from its "percep-
tion" of what the employees "attempted to do on July
28" (the meeting with the deputy city manager).
Respondent's argument imputes to it an element of
clairvoyance which is not warranted by the record; i.e.,
that it knew on June 12 that the employees would take
specific action on the matter. Nor was it likely that Re-
spondent could "perceive" this still future activity on
July 3 when Stanley again repeated his unlawful de-
mands to Isom. Although Stanley asserted that he
learned on July 30-31 about the four employees' meeting
with the deputy city manager on July 28, this testimony
is suspect because (1) Stanley did not know the date
during his initial testimony and could only give it after
seeing the St. Petersburg written report; (2) he did not
state the source of his knowledge, which was far in ad-
vance of the first official notice from the city; and (3) his
affidavit dated August 13 contains no reference to this
asserted reason for refusing to bargain.
The first documentary evidence of notice of the audit
to Stanley is the deputy city manager's letter to him
dated October 6. Whether Stanley received this letter by
October 9, the date of the hearing in Federal district
court on the injunction petition, is unknown. In any
event, Respondent did not advance this argument in the
hearing held that day, so far as is indicated by the court's
order. I do not credit Stanley's testimony that he learned
of the July 28 complaint to the city on July 30-31.
Rather, I conclude that Respondent advances the conten-
tion in this proceeding as an afterthought to bolster its
case.
Even if Respondent's refusal to bargain had taken
place subsequent to the employee protest to the city and
subsequent to Respondent's knowledge thereof, this
would not have provided Respondent with a defense.
The employee protest charged Respondent with failure
to remit proper amounts to the city pursuant to the bad-
debt provision of the contract, and with failure to give
adequate service, but did not amount to a charge of
fraud in Deputy City Manager Arnold's opinion. This is
a far cry from the facts in the case principally relied
upon by Respondent,'5 where the union agent made
speeches saying he had a grudge to settle with the com-
pany, that some of the company officials were "liars,"
that the company did not "give a damn" for the welfare
of its employees, and that the agent hoped the company
would go broke and be forced to sell out. Nor do the
circumstances in this proceeding approach the facts in a
case where the union insisted on including representa-
tives of a second union that did not represent the em-
ployees in the bargaining unit, but, instead, represented
" SAS Ambulance Service. Inc.. supra.
NL.R.B. v The Kentucky Utilities Company. supra.
463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of one of the employer's competitors, and
where the employer intended to reveal confidential trade
secrets during negotiations. On these facts the Board
found a "clear and present danger to meaningful collec-
tive bargaining," which justified a refusal to bargain.6
Even less do the facts in the instant case resemble those
where the union agent to whom the employer objected
had made a sudden, unprovoked physical attack on the
personnel director. 17
Instead, the employees herein merely filed a complaint
with a public official consistent with the position taken in
their leaflets and in Hollins' prior testimony-matters al-
ready adjudicated by the Board. I conclude that this ad-
ditional activity does not constitute "persuasive evidence"
of the impossibility of collective bargaining with these
employees,"t even if such additional activity had taken
place prior to Respondent's refusal to bargain.
2. Respondent's demand for names of union
members
The evidence clearly establishes that Respondent de-
manded the names of union members as a precondition
to bargaining, and that the Union refused, saying that it
would supply the names only when presenting a check-
off request at the conclusion of negotiations.
Respondent's posture when making this demand was
that of an employer who had already violated Section
8(a)(3) of the Act, as established in the prior case. This
gives an ominous overtone to Respondent's demand for
the names of all union adherents. As the Board has
stated:
An employer cannot discriminate against union ad-
herents without first determining who they are. The
Board is continually confronting cases involving un-
lawful discrimination against employees where the
prelude to the discrimination was the employer's at-
tempt systematically to investigate the sympathies
of his employees. The frequency of a pattern of em-
ployer conduct associating discrimination against
union adherents with the employer's efforts to learn
the names of union activists supports the conclusion
that there is a "danger inherent" in such conduct: a
tendency toward interference with the exercise by
employees of their organizational rights. 9
Respondent advances no reason or necessity to explain
its demand for this information. In a recent case where
the company conditioned bargaining upon receipt from
the union of statistical information concerning the racial,
sexual, and ethnic composition of the union's member-
ship, the Board concluded that such information was "ir-
relevant" to the company's bargaining obligation, and
did not constitute a defense to a refusal-to-bargain
charge. 20 For similar reasons, Respondent's demand
" CBS Inc., 226 NLRB 537, 539 (1976), enfd. sub nom. International
Brotherhood of Electrical Workers, AFL-CIO, e al. v. N.L.R.B., 557 F.2d
995 (2d Cir. 1977).
" Fitzsimons Manufacturing Company, West Branch Tube Division, 251
NLRB 375 (1980).
" KDEN Broadcasting Company. supra.
" Cannon Electric Company, 151 NLRB 1465, 1468-69 (1965).
' Nomad Division Skyline Corporation. Inc., 240 NLRB 737 (1979).
herein for slightly different information about the
Union's membership is also irrelevant to its own bargain-
ing obligation, and does not constitute an adequate de-
fense to the 8(a)(5) allegation.
3. Individual bargaining and the unilateral wage
increase
As set forth above, the pleadings establish that Re-
spondent LBJ, beginning about August 18, engaged in
individual bargaining with employees in the certified
unit, and, about November 7, unilaterally implemented a
wage increase therein. It is settled law that such conduct
is violative of Section 8(a)(5) and (1) of the Act. It
should be noted that the pleadings establish this as a vio-
lation only by Respondent LBJ.
I therefore find, for the reasons given above, 2t that Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
In accordance with these findings, I make the following:
CONCLUSIONS OF LAW
1. SAS Ambulance Service, Inc., d/b/a Florida Am-
bulance Service; MSK Ambulance Service, Inc., d/b/a
Atlas Ambulance Service; and LBJ Ambulance Service,
Inc., d/b/a C & R Ambulance Service, constitute a
single integrated business enterprise and a single employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. 1199, National Union of Hospital & Health Care
Employees, Retail, Wholesale and Department Store
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. On or about March 27 and 28, 1980, a majority of
Respondent's employees in the units described in para-
graph 4 below, by secret-ballot election conducted by
the Board, selected the Union as their representative for
the purposes of collective bargaining and, on or about
April 8, 1980, the Board certified the Union as the exclu-
sive representative of all the employees in said units.
4 (a) All full-time and regular part-time registered
emergency medical technicians, registered paramedics,
and licensed ambulance drivers employed by Respondent
SAS Ambulance Service, Inc., d/b/a Florida Ambulance
Service, at its Clearwater, Florida, facility, excluding
office clerical employees, shift leaders, dispatchers, me-
chanics, guards, and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
(b) All full-time and regular part-time registered emer-
gency medical technicians, registered paramedics, and li-
censed ambulance drivers employed by Respondent
MSK Ambulance Service, Inc., d/b/a Atlas Ambulance
Service, at its Clearwater, Florida, facility, excluding
office clerical employees, shift leaders, dispatchers, me-
chanics, guards, and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective
"1 Although the record contains evidence that Respondent refused to
bargain at any location other than its own office, the complaint does not
allege this as a violation, and the General Counsel stated that the matter
had been "resolved." Accordingly, I make no findings on this issue.
464
FLORIDA AMBULANCE SERVICE
bargaining within the meaning of Section 9(b) of the
Act.
(c) All full-time and regular part-time registered emer-
gency medical technicians, registered paramedics, and li-
censed ambulance drivers employed by Respondent LBJ
Ambulance Service, Inc., d/b/a C & R Ambulance Serv-
ice, at its Clearwater, Florida, facility, excluding office
clerical employees, shift leaders, dispatchers, mechanics,
guards, and supervisors as defined in the Act, constitute
a unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. Since on or about April 8, 1980, and at all times
thereafter, the Union has been, and is now, the repre-
sentative for the purposes of collective bargaining of a
majority of the employees in the units described in para-
graph 4 above, and, by virtue of Section 9(a) of the Act,
has been, and is now, the exclusive representative of all
the employees in said units for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
6. By refusing upon demand to meet with the Union's
authorized bargaining representatives, by unilaterally en-
gaging in individual bargaining with the employees in
the unit described in paragraph 4(c) above, and by unilat-
erally granting said employees a wage increase on or
about November 7, 1980, Respondent has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(5) of the Act.
7. By the aforesaid refusal to bargain, Respondent has
interfered with, restrained, and coerced, and is interfer-
ing with, restraining, and coercing, employees in the ex-
ercise of the rights guaranteed them in Section 7 of the
Act, and thereby has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
8. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
IV. THE REMEDY
It having been found that Respondent engaged in cer-
tain unfair labor practices, it is recommended that it
cease and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the Act.
Thus, I recommend that Respondent cease and desist
from refusing to meet with any of the Union's authorized
bargaining representatives, from unilaterally engaging in
individual bargaining with any of the represented em-
ployees in any of the units specified above, and from uni-
laterally granting said employees wage increases without
bargaining therefor with the Union.
In accordance with Board policy, this last recommen-
dation should not be construed as a requirement that Re-
spondent revoke any wage increase previously given.22
Rather, Respondent's prior unlawful wage increase only
for Respondent LBJ employees requires that it take spe-
cific affirmative action to correct the effects of same. If
unremedied, Respondent's action would require the
22 Allis-Chalmers Corporation, 234 NLRB 350, fn. 4 (1978), and 237
NLRB 290, 292 (1978), enfd. as modified 601 F.2d 870 (5th Cir. 1979).
Union first to bargain for a similar increase for the em-
ployees in the other units, and then to bargain for what it
believed to be an adequate wage for all employees. In
the integrated enterprise which Respondent conducts,
this would tend to create dissension within the Union
and fragmented bargaining, a result directly attributable
to Respondent's unlawful conduct. Therefore, I shall rec-
ommend that Respondent first grant each employee of
Respondents SAS and MSK a wage increase equal to
that previously granted the employees of Respondent
LBJ, retroactive to the date thereof, November 7, 1980,
or to the date of an individual employee's first date of
employment, whichever is later, with interest, in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).23 In granting said recommended wage
increase to the employees of Respondents SAS and
MSK, Respondent must make certain that the wage rates
in all units are equal for jobs similarly classified.
I shall further recommend that Respondent also be re-
quired to bargain, upon request, with any authorized
agent or agents of the Union as the exclusive representa-
tive of all the employees in each certified unit. More-
over, because Respondent's refusal to meet with the
Union's bargaining team has cost the Union most of its
certified year, I shall recommend that Respondent be re-
quired to continue to bargain and recognize the Union
for 1 year from the date it begins to negotiate with the
Union's bargaining team. 24
Because Respondent's continuing unfair labor practices
are sufficiently egregious in nature so as to demonstrate a
disregard for its employees' fundamental statutory rights,
and because the Board in the prior proceeding involving
this Respondent issued a broad order, I shall recommend
another order requiring Respondent to cease and desist
from in any other manner infringing upon such rights.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 25
The Respondent, SAS Ambulance Service, Inc., d/b/a
Florida Ambulance Service; MSK Ambulance Service,
Inc., d/b/a Atlas Ambulance Service; and LBJ Ambu-
lance Service, Inc., d/b/a C & R Ambulance Service,
Clearwater, Florida, its officers, agents, successors, and
assigns, shall:
i. Cease and desist from:
(a) Refusing to meet with any authorized agent or
agents of 1199, National Union of Hospital & Health
Care Employees, Retail, Wholesale and Department
Store Union, AFL-CIO, as the exclusive representative
of all the employees in any of the following appropriate
units:
23 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
KDEiV Broadcasting Company, supra.
2 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
465
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) All full-time and regular part-time registered emer-
gency medical technicians, registered paramedics, and li-
censed ambulance drivers employed by Respondent SAS
Ambulance Service, Inc., d/b/a Florida Ambulance
Service, at its Clearwater, Florida, facility; excluding
office clerical employees, shift leaders, dispatchers, me-
chanics, guards, and supervisors as defined in the Act.
(2) All full-time and regular part-time registered emer-
gency medical technicians, registered paramedics, and li-
censed ambulance drivers employed by Respondent
MSK Ambulance Service, Inc., d/b/a Atlas Ambulance
Service, at its Clearwater, Florida, facility; excluding
office clerical employees, shift leaders, dispatchers, me-
chanics, guards, and supervisors as defined in the Act.
(3) All full-time and regular part-time registered emer-
gency medical technicians, registered paramedics, and li-
censed drivers employed by Respondent LBJ Ambulance
Service, Inc., d/b/a C & R Ambulance Service, at its
Clearwater, Florida, facility; excluding office clerical em-
ployees, shift leaders, dispatchers, mechanics, guards, and
supervisors as defined in the Act.
(b) Unilaterally engaging in bargaining with any of the
represented employees in any of the units set forth
above.
(c) Unilaterally granting wage increases to any of the
represented employees in any of the units described
above without prior consultation and bargaining with
their representative. Nothing herein shall be construed as
requiring Respondent to revoke any wage increase previ-
ously granted.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Grant retroactive wage increases to the employees
in the units described above in subparagraphs l(a)(l) and
l(a)(2) in the manner described in the section of this De-
cision entitled "The Remedy."
(b) Upon request, bargain with any authorized agent
or agents of the above-named labor organization as the
exclusive representative of all employees in the aforesaid
units for a period of I year from the first date of bargain-
ing in good faith with respect to rates of pay, wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(c) Preserve, and upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of the retroactive
wage increases due under the terms of this recommended
Order.
(d) Post at its Clearwater, Florida, facility copies of
the attached notice marked "Appendix."2 6 Copies of said
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
26 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
466