Physicians & Surgeons Ambulance Service, Inc. d/b/a American Medical Response

National Labor Relations Board - Board Decisions

Apr 29, 2011

356 NLRB No. 149 (N.L.R.B. 2011)

356 NLRB No. 149
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.
Physicians & Surgeons Ambulance Service, Inc. d/b/a
American Medical Response and Teamsters Lo-
cal Union No. 507 a/w International Brother-
hood of Teamsters. Case 8–CA–39333
April 29, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
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 February 8, 2011, the
Acting General Counsel issued the complaint on Febru-
ary 22, 2011, alleging that the Respondent has violated
Section 8(a)(5) and (1) of the Act by refusing the Un-
ion’s request to bargain following the Union’s certifica-
tion in Case 8–RC–17008. (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 deny-
ing in part the allegations in the complaint, and asserting
affirmative defenses.
On March 14, 2011, the Acting General Counsel filed
a Motion for Summary Judgment. On March 17, 2011,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification based on the Re-
gional Director’s failure to grant a hearing on the Re-
spondent’s objections.
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.1 See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, an Ohio corpora-
tion, with its principal facility located at 520 South Main
Street, Suite 2438-B, Akron, Ohio 44311 and facilities
located at Cleveland East, 26309 Miles Road, Suite 6,
Warrensville Heights, Ohio 44128 and Cleveland West,
13929 West Parkway, Cleveland, Ohio 44135, has been
engaged in the business of providing ambulance trans-
port services. Annually, the Respondent, in conducting
its business operations described above, derived gross
revenues in excess of $500,000, and purchased and re-
ceived at its Akron, Ohio facility goods valued in excess
of $50,000 directly from points outside the State of Ohio.
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 Teamsters Local Union No. 507
a/w International Brotherhood of Teamsters (the Union)
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the secret-ballot election held November 19,
2009, the Union was certified on November 30, 2010, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time wheelchair, EMT
basic, EMT intermediate, and EMT paramedics em-
ployed at the Employer’s facilities located at Cleveland
East 26309 Miles Road Suite 6, Warrensville Heights,
Ohio, 44128 and Cleveland West 13929 West Park-
way, Cleveland, Ohio, 44135 a/k/a Post 90 and Post 93,
but excluding all supervisors, managerial, sales em-
ployees, professional and office clerical employees, and
guards as defined by the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.

1 Member Hayes would have granted review in the underlying repre-
sentation proceeding. He agrees, however, that the Respondent has not
raised any new matters that are properly litigable in this unfair labor
practice case, and that summary judgment is appropriate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
B. Refusal to Bargain
About January 10, 2011, the Union requested that the
Respondent bargain with it as the exclusive collective-
bargaining representative of the unit employees, and,
since about January 31, 2011, the Respondent has re-
fused to do so. We find that this failure and refusal con-
stitutes an unlawful failure and refusal to recognize and
bargain with the Union in violation of Section 8(a)(5)
and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since January 31, 2011, to rec-
ognize and bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the
appropriate unit, the Respondent has engaged in unfair
labor 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, Physicians & Surgeons Ambulance Service,
Inc. d/b/a American Medical Response, Akron, Warrens-
ville Heights, and Cleveland, Ohio, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with Teamsters Lo-
cal Union No. 507 a/w International Brotherhood of
Teamsters, as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining 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, recognize and 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 agree-
ment:
All full-time and regular part-time wheelchair, EMT
basic, EMT intermediate, and EMT paramedics em-
ployed at the Employer’s facilities located at Cleveland
East 26309 Miles Road Suite 6, Warrensville Heights,
Ohio, 44128 and Cleveland West 13929 West Park-
way, Cleveland, Ohio, 44135 a/k/a Post 90 and Post 93,
but excluding all supervisors, managerial, sales em-
ployees, professional and office clerical employees, and
guards as defined by the Act.
(b) Within 14 days after service by the Region, post at
its facilities in Akron, Warrensville Heights, and Cleve-
land, Ohio, copies of the attached notice marked “Ap-
pendix.”2 Copies of the notice, on forms provided by the
Regional Director for Region 8, 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 dis-
tributed 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.3 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 its facili-
ties involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 31,
2011.
(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.

2 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.”
3 For the reasons stated in his dissenting opinion decision in J. Picini
Flooring, 356 NLRB No. 9 (2010), Member Hayes would not require
electronic distribution of the notice.
AMERICAN MEDICAL RESPONSE 3
Dated, Washington, D.C. April 29, 2011
Wilma B. Liebman, Chairman
Mark Gaston Pearce, Member
Brian E. Hayes, 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 vio-
lated 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 Teamsters Local Union No. 507 a/w International
Brotherhood of Teamsters, 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, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the following bargaining unit:
All full-time and regular part-time wheelchair, EMT
basic, EMT intermediate, and EMT paramedics em-
ployed at our facilities located at Cleveland East 26309
Miles Road Suite 6, Warrensville Heights, Ohio, 44128
and Cleveland West 13929 West Parkway, Cleveland,
Ohio, 44135 a/k/a Post 90 and Post 93, but excluding
all supervisors, managerial, sales employees, profes-
sional and office clerical employees, and guards as de-
fined by the Act.
PHYSICIANS & SURGEONS AMBULANCE
SERVICE, INC. D/B/A AMERICAN MEDICAL
RESPONSE