Pride Ambulance Company, d/b/a Pride Care Ambulance, Care-A-Van Division

National Labor Relations Board - Board Decisions

Apr 5, 2011

356 N.L.R.B. 1023 (N.L.R.B. 2011)

PRIDE CARE AMBULANCE
356 NLRB No. 128
1023
Pride Ambulance Company, d/b/a Pride Care Ambu-
lance, Care-A-Van and Local 7, International
Brotherhood of Teamsters. Case 7–CA–50741
April 5, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On May 8, 2008, Administrative Law Judge George
Carson II issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed a brief in answer to the Respondent’s ex-
ceptions, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified, to modify his remedy,2 and to adopt the rec-
ommended Order as modified.3
I. INTRODUCTION
As set forth in the judge’s decision, this case arises
from the parties’ attempts to negotiate an initial collec-
tive-bargaining agreement and an ensuing economic
strike. The complaint alleges, and the judge found, that
the Respondent committed numerous unfair labor prac-
tices in the wake of the strike.
Specifically, the judge found, and we agree for the rea-
sons set forth in his decision, that the Respondent violat-
ed Section 8(a)(3) and (1) of the Act by discharging a
nonunit employee for refusing to perform struck work.
We also agree with the judge, for the reasons set forth in
his decision, as modified and supplemented below, that
the Respondent violated Section 8(a)(3) and (1) by dis-
charging employees because they engaged in an econom-
ic strike, and violated Section 8(a)(1), (3), and (5) by
threatening to implement, unilaterally implementing, and

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s recommended remedy by
requiring that backpay and other monetary awards shall be paid with
interest compounded on a daily basis.
3 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
dealing directly with employees regarding, a 90-day
waiting period for returning strikers to resume their
health insurance coverage.4
II. BACKGROUND
The Respondent provides critical care transports, event
standby, and wheelchair transports pursuant to a contract
with the city of Kalamazoo, Michigan. The Union has
represented a unit of the Respondent’s “Care-A-Van”
drivers since its certification by the Board on April 27,
2006. In June 2007, the unit drivers voted to reject the
Respondent’s proposal for an initial contract. On the
morning of August 1, 2007, 14 of the drivers commenced
an economic strike and began picketing outside the Re-
spondent’s facility.5 When Transportation Manager Dan
Robbert arrived at work and encountered the picket line,
he told Shop Steward Ron Smeltzer, “I just want you to
be perfectly clear if you don’t come back to work
now you don’t have jobs to come back to.” A few
hours later, Robbert visited the picket line and told the
striking employees that they could return without any
repercussions, but if they did not come back, they could
consider themselves “terminated.” Later the same day,
Robbert again visited the picket line, and asked each
striking employee individually to return to work. He
informed them that “if [they] came back to work right
then there would be no questions asked. . . . If [they]
didn’t, then [they] could look for other jobs.”6 General
Manager Becki Russon’s contemporaneous notes of the
discussions confirm that the striking employees “were
asked to come back to work or risk losing their jobs.”
Around 5 p.m., Robbert telephoned driver Michelle
Cronk, who was not scheduled to work on August 1, and
told her that she would be “fired” if she did not report to
work the next day.
On August 2, the Kalamazoo Gazette published an ar-
ticle reporting that Russon stated during an interview on
August 1 that “Pride Care was in the process of hiring
new drivers and the striking workers would not be al-
lowed to return to work.” Also on August 2, Robbert
assigned Patricia Smith, a nonunit employee, to drive a
route normally assigned to the striking drivers. Smith
refused, informing Robbert “I stand behind the drivers.”
Robbert then told Smith that he would have to “let her
go.” Smith asked, “Does that mean you are going to fire
me?” Robbert replied, “Yes, I’m firing you.”

4 The judge also found that the Respondent violated Sec. 8(a)(1) by
rendering assistance to employees in an effort to decertify the Union
and by maintaining a rule prohibiting discussion among employees of
their wages. There were no exceptions to those findings.
5 All dates are in 2007, unless otherwise specified.
6 One employee returned to work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1024
On August 6, the Respondent’s chief operating officer,
Timothy Onderlinde, hand delivered a letter to Business
Agent Andy Meulman. The letter stated, in pertinent
part “to avoid further damage to our relationship, I once
again invite the striking Union members to return to
work and encourage the Union bargaining team to return
to the bargaining table.” The letter also stated that if the
employees remained on strike, the Respondent would
be “compelled to continue hiring temporary replace-
ment workers.”7
Both prior to and after the strike, the Respondent
maintained a group health insurance plan. Seven of the
striking employees were covered under the plan. On
August 23, the Respondent sent a letter to those employ-
ees stating in pertinent part:
[I]f you continue to strike and refuse to return to work,
Pride Care Ambulance will cease paying its portion of
your health insurance premiums effective September 1,
2007. Attached please find notice of your COBRA
rights.
Finally, please be advised that you will be required
to comply with both Priority Health and Pride Care
Ambulance re-enrollment requirements (which in-
cludes a 90-day waiting period) if you do not elect
COBRA coverage and later return to work and reenroll
. . . .
On August 29, the Respondent, through Infinisource,
its agent for COBRA matters, sent notices to striking
employees enrolled in the health care plan advising them
that a “qualifying event” had occurred that entitled them
to continue their coverage under COBRA. The notice
identified the “qualifying event” as “termination of em-
ployment.”
By letter dated September 28, sent to Meulman,
Onderlinde again invited the striking employees to return
to work. The September 28 letter stated, in pertinent
part: “That we might avoid further damage to our rela-
tionship and attempt to resolve our differences in a more
constructive manner, I once again invite the striking Un-
ion members to return to work and encourage the Union
bargaining committee to return to the bargaining table or
continue with mediation—whichever the Union prefers.”
Strikers Patricia Brigance and Rebecca Stanfill Wy-
man returned to work on September 5 and October 10,
respectively. As a condition of their return, the Re-
spondent required both employees to meet with

7 The August 6 letter was directed to Meulman and not the striking
employees. Although Meulman testified that he “took [the August 6
letter] out to the strike line, shared it with the union steward and let
anybody read it that wanted to read it,” some striking employees denied
seeing the letter or learning of its contents.
Onderlinde and Robbert and to sign a return to work
statement, acknowledging that they were returning of
their own free will and under the same terms and condi-
tions of employment as before the strike, except that
there “would be no health coverage for a period of ninety
(90) days.”
III. DISCUSSION AND ANALYSIS
A. Alleged Discharge of Strikers
In determining whether or not a striker has been dis-
charged, the Board examines whether the employer’s
words or actions “would logically lead a prudent person
to believe his [or her] tenure has been terminated.” Leiser
Construction LLC, 349 NLRB 413, 416 (2007) (citation
omitted), petition for review denied 281 Fed. Appx. 781
(10th Cir. 2008). “To determine what a prudent person
would logically believe as to his employment status, it is
necessary to consider the entire course of relevant events
from the employee’s perspective.” Id. Moreover, if an
employer’s words or actions “created a climate of ambi-
guity and confusion which reasonably caused strikers to
believe that they had been discharged or, at the very
least, that their employment status was questionable be-
cause of their strike activity, the burden of the results of
that ambiguity must fall on the employer.” Kolka Tables,
335 NLRB 844, 846–847 (2001) (quoting from the
judge’s decision in Brunswick Hospital Center, 265
NLRB 803, 810 (1982)).
Applying these principles, the judge found that the to-
tality of the Respondent’s conduct would logically lead
the striking employees to believe that they had been dis-
charged. He further found that the Respondent’s August
6 and September 28 letters inviting the strikers to return
to work were not sufficient to rescind the discharges.
Although we agree with the judge that the Respondent
discharged the drivers for their participation in the strike
and that their discharges violated Section 8(a)(3) and (1)
of the Act, we do so only for the reasons that follow.
As described above, on August 1, Robbert told the
striking employees, “if you don’t come back to work
now you don’t have jobs to come back to.” He also
said that they could consider themselves “terminated”
and “could look for other jobs.” Further, that evening,
Robbert informed Cronk that if she did not report to
work the next day, she would be “fired.” Then, on Au-
gust 2, Robbert informed nonunit employee Smith that
he would have to “let her go” and he was “firing” her,
because she refused to perform struck work. The clear
implication of Robbert’s statements was that the striking
employees would be discharged unless they abandoned
the strike and “c[a]me back to work” right away. The
August 2 Kalamazoo Gazette article, which reported that
PRIDE CARE AMBULANCE 1025
Russon stated during an interview that “the striking
workers would not be allowed to return to work,” is con-
sistent with the position that the Respondent communi-
cated to employees, and it is a reasonable inference that
at least some employees read the article.
In its exceptions, the Respondent contends that the to-
tality of its actions belie the conclusion that it discharged
the striking employees. The Respondent points out, for
example, that it did not issue final paychecks or dis-
charge notices to the striking employees; it did not re-
quire them to return company property; it continued pay-
ing their health insurance premiums through the month
of August; and it repeatedly invited them to return to
work. Alternatively, the Respondent contends that the
August 6 and September 28 letters inviting the striking
employees to return to work reverted the alleged dis-
charges into a strike and/or cut off the Respondent’s
backpay obligation. We find these arguments unavail-
ing.
“In determining whether or not a striker has been dis-
charged, the events must be viewed through the striker’s
eyes and not as the employer would have viewed them.”
Brunswick Hospital Center, 265 NLRB at 810. In this
case there is no evidence that the strikers were aware of
the Respondent’s normal discharge procedures. Accord-
ingly, we are not persuaded that the strikers would neces-
sarily conclude from the Respondent’s failure to follow
its own internal procedures that they were not discharged
and could return to work, contrary to Robbert’s direct
and unequivocal statements that they were “terminated”
and “don’t have jobs to come back to” (and contrary also
to Russon’s statements reported in the Kalamazoo Ga-
zette article that they “would not be allowed to return to
work”).
Nor are we persuaded that the Respondent’s August 6
and September 28 letters were sufficient to dispel the
strikers’ reasonable belief that they had been discharged.
The letters did not directly disavow Robbert’s statements
(or Russon’s statements reported in the newspaper arti-
cle) by explicitly informing the strikers that they were
not discharged, nor were they necessarily inconsistent
with the strikers having been discharged. We recognize
that the August 6 letter stated that replacement workers
hired by the Respondent were “temporary” and that such
language would suggest to a person versed in Board law
that the Respondent had not actually discharged the
strikers. However, given Robbert’s repeated, contempo-
raneous statements, we find that the striking employees
would reasonably have understood the reference to tem-
porary replacement workers to mean that, although they
had been discharged, the Respondent was willing to rein-
state them if they unconditionally abandoned the strike,
discharging, if necessary, new drivers hired to fill their
positions. If they did not abandon the strike, however,
their employment status would remain the same: they
would no longer be in the Respondent’s employ and it
was a matter of the Respondent’s choice whether to rein-
state them. As found by the judge, their belief in this
regard would have been reinforced by the August 29
notices stating that strikers who participated in the Re-
spondent’s group health insurance plan qualified for
COBRA as a result of the “termination of [their] em-
ployment.”8 It would have been further reinforced by the
requirement that returning strikers Brigance and Stanfill
Wyman interview with Robbert and Russon and wait 90
days to requalify for health insurance coverage, require-
ments normally imposed on new employees.
We find that at the very least the totality of the Re-
spondent’s conduct created a climate of such confusion
and ambiguity as to cause prudent persons to believe
“that their employment status was questionable because
of their strike activity.” Brunswick Hospital Center, 265
NLRB at 810. Under well-established precedent “the
burden of the results of that ambiguity must fall on the
employer.” Id.; Kolkka Tables, supra at 846–847.
B. The 90-Day Reenrollment Period
As discussed above, by letter dated August 23, the Re-
spondent notified striking employees who participated in
the group health insurance plan that if they “continue[d]
to strike and refuse[d] to return to work” it would cease
paying their health insurance premiums as of September
1.9 The Respondent further informed them that if they
did not continue their coverage under COBRA, they
would be subject to a 90-day waiting period for coverage
if they later returned to work. Subsequently, when
Brigance and Stanfill Wyman returned to work, the Re-
spondent required them to sign a form acknowledging
that there “would be no health coverage for a period of
ninety (90) days.” It is undisputed that the Respondent

8 Our dissenting colleague discounts the COBRA notices, pointing
out that only 7 of the 14 strikers received them; 2 who received
COBRA notices subsequently returned to work; and there is no evi-
dence that those who did not receive COBRA notices were aware of the
notices or the “termination” language therein. Our colleague also de-
fends the Respondent’s selection of “termination of employment” as
the basis for the strikers receiving COBRA benefits, given the absence
of “strike” as an option on the computerized drop-down menu used by
the Respondent to report COBRA eligibility. We find these facts to be
inapposite. The appropriate inquiry is what the strikers reasonably
would have understood about their employment status. Viewed in that
light, the COBRA notices merely confirmed what the strikers already
knew or suspected: that they were terminated.
9 It was not alleged that the cancellation of health insurance benefits
during the strike was unlawful.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1026
did not notify or bargain with the Union before announc-
ing or implementing the waiting period.
Consistent with the complaint allegations, the judge
found that the Respondent violated Section 8(a)(1) of the
Act by threatening to impose the waiting period if strik-
ing employees did not return to work; Section 8(a)(3) by
imposing the waiting period on returning strikers
Brigance and Stanfill Wyman; and Section 8(a)(5) by
dealing directly with employees regarding, and by unilat-
erally implementing, the waiting period. In its excep-
tions, the Respondent argues, as does our dissenting col-
league, that the judge erred in ignoring the terms of the
Respondent’s plan with Priority Health, a third-party
insurer, under which employees were required to be
working “full time,” defined as “36 hours per week,” in
order to be eligible to participate in the health insurance
plan, and all “employees who return[ed] to work” were
required to wait 90 days before reenrolling. They assert
that the terms of the insurance plan were mandatory and
the Respondent had no choice but to impose the waiting
period. Hence, the Respondent contends, and our dis-
senting colleague would find, that the waiting period was
justified by legitimate and substantial business reasons.
We find no merit in these arguments.
1.
Even assuming arguendo that an employer could law-
fully deny vested rights and privileges to returning strik-
ers where compelled by the terms of a contract with a
third-party insurer, we would nevertheless find the wait-
ing period to be unlawful, because the strikers were un-
lawfully discharged. In Abilities & Goodwill, Inc., 241
NLRB 27, 28 (1979), enf. denied on other grounds 612
F.2d 6 (1st Cir. 1979), the Board explained:
When discharged strikers withhold their services after
the date of the unlawful discharge, one cannot really be
certain whether their continuing refusal to work is vol-
untary, i.e., a result of the strike, or whether the reason
for not making application for reinstatement is that the
employer, by discharging the employees, has
unmistakenly impressed on them the futility of making
such an application. Thus, it becomes difficult, if not
impossible, to determine whether the employees would
have continued to strike and, if so, for how long, had
the opportunity to return to work been available. (Inter-
nal quotes omitted.)
The Board therefore presumes that a discharged striker
would have returned to work were it not for the fact of the
discharge; the burden is on the employer to prove otherwise.
Id.
Applying that presumption here, and in the absence of
evidence to the contrary, we find that if the strikers had
not been discharged, they would have returned to work
before their health insurance coverage expired on Sep-
tember 1. Had they done so, they would not have expe-
rienced a break in coverage or been subject to the waiting
period for the resumption of coverage. It is no defense,
therefore, to say that the waiting period was compelled
by the terms of the Respondent’s insurance plan with
Priority Health.10
2.
Moreover, we would find application of the plan’s
terms unlawful even if we had not concluded that the
strikers were unlawfully discharged. The argument ad-
vanced by the Respondent and our dissenting colleague
that an employer may deny vested benefits to returning
strikers where compelled by the terms of a contract with
a third-party insurer is at odds with decades of Board
precedent. In Textron, Inc., 257 NLRB 1, 8–9 (1981),
enf. denied in relevant part 687 F.2d 1240 (8th
Cir. 1982), cert. denied 461 U.S. 914 (1983), Ace Tank &
Heater Co., 167 NLRB 663 (1967), and Cone Bros. Con-
tracting Co., 158 NLRB 186, 187–188 (1966), the Board
held employers to be responsible for the full restoration
of returning strikers’ insurance benefits, despite the terms
of the insurance plans themselves. In Cone Bros., the
Board stated:
. . . at the time of the discriminatory terminations and
the strike which followed as a result, the right to insur-
ance coverage had accrued to the employees. This in-
surance coverage represented a job benefit which arose
from the employment relationship and which had vest-
ed in the employees as of the date of the unlawful dis-
charges and protest strike. It could not, of course, be
lost to employees thereafter by virtue of an unlawful
termination, or forfeited by participation in an unfair
labor practice strike. In the latter connection, it is true
that strikers may incur certain economic losses, such as
wages whose sole aspect is monetary compensation for
work performed during the employment relationship.

10 We note that in any event, the strikers are entitled to a restoration
of their insurance benefits as part of the remedial order for the unlawful
discharges. In Abilities & Goodwill, the Board determined that, for the
purpose of computing backpay, unlawfully discharged strikers are to be
treated in the same manner as other discriminatorily discharged em-
ployees. 241 NLRB 27. Thus, discharged strikers are not required to
request reinstatement in order to start the employer’s backpay obliga-
tions, and the backpay period begins from the date of the discharges
and continues until an offer of reinstatement is made. Id. In this case,
the strikers were discharged on August 1. Therefore, they were entitled
to full reinstatement as of that date, with all of the rights and privileges
they previously enjoyed, including eligibility for health insurance bene-
fits. They are also entitled to be made whole for any loss of earnings
and benefits (including health insurance benefits) suffered from the
date of their unlawful discharges.
PRIDE CARE AMBULANCE 1027
But strike activity does not entail acceptance after the
strike of a smaller quantum of vested job rights and
privileges. 158 NLRB at 187–188 (footnotes omitted;
emphasis in original).
Consistent with the foregoing principles, the Respondent, as
a party to the insurance plan, must bear responsibility for
provisions which unjustly penalize strikers and prevent their
complete reinstatement.
Our dissenting colleague unpersuasively argues that
the Board’s decisions in Textron, Ace, and Cone Brothers
are distinguishable. In each, the key facts are the same:
the employer imposed a waiting period on returning
strikers for the resumption of health insurance coverage
and sought to escape liability for its conduct on the
grounds that the waiting period was mandated by the
terms of its insurance plan.
Our dissenting colleague nevertheless contends that
Ace is inapposite because the striker in that case was
unlawfully discharged, while our colleague would find
that the Respondent did not discharge the strikers here.
However, the Board’s rationale for imposing liability in
Ace was not dependent on a discharge. To the contrary,
the Board made clear in Ace that it would have reached
the same result even in the absence of the discharge, stat-
ing, “Assuming that the same situation would have pre-
vailed under the insurance contract even if Ramirez had
not been terminated, the fact remains that Respondent
was a party to that contract and must bear responsibility
for provisions which unjustly penalize strikers and pre-
vent their complete reinstatement.” 167 NLRB at 664.11
In Textron, the administrative law judge, affirmed by
the Board, found that the employer unlawfully required
returning strikers to undergo a 60-day probationary peri-

11 Similarly, in Cone Bros., the Board found the employer liable for
losses suffered by two employees resulting from the imposition of a
requalification period for health insurance coverage, only one of whom,
Otho Mathis, was unlawfully discharged. The other, Joe Swoboda,
engaged in an unfair labor practice strike in protest of Mathis’ dis-
charge but was not discharged himself. As to Swoboda, the issue was
whether the employer was justified in delaying resumption of his health
insurance coverage when he returned to work after the strike, under a
clause in its health insurance policy that provided, “An employee who
leaves the company on his own accord and later returns must again
complete 12 or more consecutive months’ employment before he is
eligible for insurance.” 158 NLRB at 187 fn. 5. Reversing the adminis-
trative law judge, who found that the employer was not responsible
because the delay was an economic detriment voluntarily accepted by
striking employees, the Board explained that “strikers may incur certain
economic losses, such as wages whose sole aspect is monetary com-
pensation for work performed during the employment relationship. But
strike activity does not entail acceptance after the strike of a smaller
quantum of vested job rights and privileges.” 158 NLRB at 188. As
noted, the Board also stated that the insurance coverage could not be
lost to employees by virtue of an unlawful termination. Id. It is clear
from the context that this statement applies to Mathis.
od before resuming health insurance coverage. The
judge rejected the employer’s defense that the probation-
ary period was mandated by its insurance policy with
Aetna, which provided that coverage would terminate
and an employee would have to re-serve a 60-day proba-
tionary period if the employee ceased active work, de-
fined as follows: “immediate termination of employment,
except that if you are absent from active work because of
sickness, injury, temporary layoff, or leave of absence, or
on account of being pensioned or retired, employment
may be deemed to continue.” 257 NLRB at 9. Employ-
ees who fell within these enumerated exceptions would
not lose their coverage under the plan, and consequently
would not be required to re-serve the probationary period
when they returned to work. The judge thus found that
“strikers were treated differently under the plan from
employees who ceased active work” pursuant to the ex-
ceptions. Id. Our dissenting colleague seeks to distin-
guish Textron based on these facts, but they instead lend
additional support to our decision. The Respondent’s
insurance plan with Priority Health, like the plan in Tex-
tron, provides that the Respondent may continue cover-
age for employees who cease active work for reasons of
layoff or disability, but makes no mention of strikers.12
As in Textron, therefore, strikers are treated differently
under the terms of the Respondent’s plan than employees
who cease work (but retain their status as employees) for
reasons other than protected strike activity.
Our colleague implies that the Board sub silentio over-
ruled Textron, Ace, and Cone, in Texaco, Inc., 285
NLRB 241 (1987). In Texaco, the Board set forth a
framework of analysis for determining whether an em-
ployer violates Section 8(a)(1) and (3) by withholding
benefits during a strike. The Board did not consider the
issue presented in Textron, Ace, Cone, and here, of
whether an employer may withhold vested benefits after
a striker returns to work, pursuant to a discriminatory

12 The policy provides that the Respondent “may offer an extension
of coverage” for laid off and disabled employees “until the employee’s
last day of employment.” The record does not reveal whether the Re-
spondent has ever done so. At the time of the hearing, the insurance
policy had been in effect for only 1 year, and no employees were laid
off during that period. The record is silent with regard to employees on
disability.
Our dissenting colleague contends that the lack of evidence estab-
lishing that the Respondent has ever continued health care coverage for
disabled or laid-off employees under the exceptions set forth in the plan
distinguishes this case from Textron. However, there is no indication in
the decision in Textron that the exceptions in the health insurance plan
were ever applied to continue an employee’s coverage. The judge
found that strikers were treated differently “under the plan,” apparently
referring to the plan language, but he made no reference to specific
instances of discriminatory treatment. 257 NLRB at 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1028
provision in an insurance policy.13 Consistent with our
prior decisions, we find such conduct to be unlawful.
For the above reasons, as well as those stated by the
judge in his decision, we find that the Respondent violat-
ed Section 8(a)(1) of the Act by threatening to impose
the waiting period if the drivers did not abandon the
strike; Section 8(a)(3) by imposing the waiting period on
returning strikers; and Section 8(a)(5) by dealing directly
with striking employees regarding, and unilaterally im-
plementing, the waiting period.
C. The January 29, 2008 Letter
On January 29, 2008, the Respondent sent a letter to
each discriminatee that stated:
As you may know, the National Labor Relations Board
has filed a complaint against the Company alleging,
among other things, that the Company fired you on
August 1, 2007, after you went on strike. . . . So there is
no confusion, and consistent with the Company’s Au-
gust 1, 2007, oral representations and August 6 and
September 28 letters, I am once again letting you know
that you were not terminated, you are welcome to re-
turn to work, and the Company stands ready and will-
ing to continue negotiations with your bargaining rep-
resentative(s). . . . [T]here is nothing in your personnel
record indicating that you have been terminated from
the Company.
The Respondent contends that the letter cured the un-
lawful discharge of the strikers under Passavant Memo-
rial Area Hospital, 237 NLRB 138 (1978). Alternative-
ly, the Respondent contends that the letter constituted an
offer of reinstatement sufficient to toll the backpay peri-
od. We find no merit in these arguments.
The Respondent’s January 29 letter was not timely, did
not admit wrongdoing, and failed to give assurance to
employees that the Respondent would not interfere with
their Section 7 rights in the future. The Respondent
therefore clearly failed to satisfy the standards for repu-
diation set forth in Passavant.
Moreover, we find that the letter was not a valid offer
of reinstatement. For a reinstatement offer to be valid, it
must have sufficient specificity to apprise the
discriminatee that the employer is offering unconditional
and full reinstatement to the discriminatee’s former or a
substantially equivalent position. See Midwestern Per-
sonnel Services, 346 NLRB 624 (2006), enfd. 508 F.3d
418 (7th Cir. 2007), and cases cited therein. See also
Consolidated Freightways, 290 NLRB 771, 772 (1988),

13 Cf. Advertiser’s Mfg. Co., 294 NLRB 740, 742–745 (1989) (The
Board, relying on Texaco, supra, found that the employer’s imposition
of a requalification period for life insurance after a strike ended violat-
ed Sec. 8(a)(1) and (3)).
enfd. as modified 892 F.2d 1052 (D.C. Cir. 1989), cert.
denied 498 U.S. 817 (1990) (“a Board order for rein-
statement of a discriminatee is designed to place that
individual in the same position the individual would have
been in had there not been discrimination against him.”
(Citation omitted)). Here, the positions offered were not
substantially equivalent to those the discharged strikers
previously held, due to the attendant condition that they
must wait 90 days to requalify for health insurance cov-
erage. Because the discriminatees would not have re-
tained their eligibility for health insurance, the letter did
not constitute a valid offer of reinstatement and did not
toll the backpay period. Accordingly, an evaluation of
the discriminatees’ response to the letter is unneces-
sary.14
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Pride
Ambulance Co., d/b/a Pride Care Ambulance, Care-A-
Van, Kalamazoo, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
Substitute the following for paragraph 2(f).
“(f) Within 14 days after service by the Region, post at
its Cork Street facility in Kalamazoo, Michigan, copies
of the attached notice marked “Appendix.”6 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since August 1, 2007.”

14 See Midwestern Personnel Services, supra at 625 fn. 8, citing
Clean Soils, Inc., 317 NLRB 99, 110 (1995) (the Board does not evalu-
ate a discriminatee’s reply to a reinstatement offer until the respondent
proves that the offer is a valid one); Consolidated Freightways, supra
at 772–773.
PRIDE CARE AMBULANCE 1029

MEMBER HAYES, dissenting in part.
I would reverse the judge’s finding that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by dis-
charging unit employees because they engaged in a
strike.1 There is no evidence that the employees were
actually discharged and the Respondent’s description of
the replacements as “temporary” and repeated invitations
to employees to return to work negated, in my view, any
arguable ambiguity as to the employees’ status. I would
also reverse the judge’s findings that the Respondent
violated Section 8(a)(3) and (1) by requiring striking
employees to requalify for the group health plan, Section
8(a)(1) by threatening employees with the requalification
period, and Section 8(a)(5) and (1) by dealing directly
with employees regarding, and unilaterally imposing, the
requalification period. As explained below, the Re-
spondent’s conduct was entirely consistent with the
preexisting, facially neutral language of the plan and
there is no evidence of animus or discriminatory treat-
ment of the strikers.
Facts
On August 1, 2007,2 14 of the Respondent’s Team-
sters-represented drivers commenced an economic strike.
Transportation Manager Dan Robbert initially reacted by
telling Shop Steward Ron Smeltzer, “I just want you to
be perfectly clear, if you don’t come back to work
now you don’t have jobs to come back to.” A few
hours later, Robbert told the still striking employees that
they could return without any repercussions, but if they
did not come back, they could consider themselves “ter-
minated.” Still later on the same day, Robbert told the
strikers “if [they] came back to work right then there
would be no questions asked. . . . If [they] didn’t, then
[they] could look for other jobs.” That evening, Robbert
informed a driver, who had not worked due to the strike,
that if she did not report to work the next day, she would
be “fired.” On August 2, the Kalamazoo Gazette pub-
lished an article reporting that the Respondent’s general
manager, Becky Russon, stated during an interview on
August 1 that “Pride Care was in the process of hiring
new drivers and the striking workers would not be al-
lowed to return to work.”
On August 6, however, the Respondent’s chief operat-
ing officer, Timothy Onderlinde, hand delivered a letter
to union business agent Andy Meulman, stating the Re-
spondent had been forced to hire temporary replacements

1 The complaint alleges that the strikers were discharged on August
1, 2007.
2 All dates are in 2007, unless otherwise specified.
and inviting the strikers to return to work. The letter
stated, in pertinent part:
[W]e have . . . been forced to hire temporary replace-
ments so that the Company can fulfill its contractual
commitments . . . .
That we might avoid further damage to our relation-
ship, I once again invite the striking Union members to
return to work and encourage the Union bargaining
team to return to the bargaining table. If, however, the
Union chooses to remain on strike and refuses to bar-
gain, we will be compelled to continue hiring tempo-
rary replacement workers to fulfill our contractual
commitments to the City.
Meulman testified that he “took [the August 6 letter] out to
the strike line, shared it with the union steward and let any-
body read it that wanted to read it.” He also testified that he
was “sure that it was passed around.” Striking employee
Robert Shellenberg confirmed that Meulman brought the
August 6 letter to the picket line and he testified that his unit
colleagues discussed the letter and generally decided that
they would stay on strike until there was a contract.3
Both prior to and after the strike, the Respondent
maintained a group health insurance plan. Seven of the
striking employees were covered under the plan. On
August 23, the Respondent sent a letter to those employ-
ees, stating that, despite the Respondent’s repeated re-
quests that the strikers return to work and the bargaining
table, the strikers had consistently refused to do so; that
the Respondent did not have to finance a strike against
itself; and so, if the employees continued to strike, the
Respondent, effective September 1, would cease paying
its portion of their health insurance premiums. The letter
also provided employees notice of their COBRA rights.
On August 29, the Respondent, through Infinisource, its
agent for COBRA matters, sent notices to the striking
employees who were enrolled in the health plan advising
them that a “qualifying event” had occurred that entitled
them to continue their coverage under COBRA. The
“qualifying event” is listed as “termination of employ-
ment” as of “9/1/2007.”
Then, by letter dated September 28, sent to Meulman,
COO Onderlinde “once again invite[d] the striking Un-
ion members to return to work.” Strikers Patricia
Brigance and Rebecca Stanfill Wyman returned to work
on September 5 and October 10, respectively. Both em-
ployees were required to meet with Onderlinde and
Robbert and to sign a return to work statement, acknowl-

3 A number of strikers denied having seen the letter or having been
told of the invitation to return. The judge did not discuss Meulman’s or
Shellenberg’s testimony or this testimony of other strikers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1030
edging that they were returning of their own free will and
under the same terms and conditions of employment as
before the strike, except that there “would be no health
coverage for a period of ninety (90) days.” On January
29, 2008, the Respondent sent a letter to all striking em-
ployees, expressly stating that they had not been termi-
nated and inviting them to return to work.
Analysis
1. Alleged discharge of the strikers
Contrary to my colleagues, I disagree with the judge’s
finding that the Respondent actually discharged the strik-
ing employees. As the Board explained in Lieser Con-
struction LLC, 349 NLRB 413, 415–416 (2007):
Where an unlawful discharge is alleged, it is self-
evident that the General Counsel must show, first and
foremost, a discharge. The fact of a discharge does not
depend on the use of formal words of firing. ‘It is suffi-
cient if the words or action of the employer ‘would log-
ically lead a prudent person to believe his [or her] ten-
ure has been terminated.’ (Internal citations omitted.)
Having examined the entire course of events, I find that the
General Counsel has not proven, by a preponderance of the
evidence, that a “prudent” employee in the place of the
strikers would logically have believed that he or she had
been discharged. While I concede that Robbert’s intemper-
ate initial remarks to employees could have created uncer-
tainty regarding their status, that uncertainty was removed
by official company communications shortly thereafter. The
Respondent’s August 6 letter, sent only 3 business days
after the strike began, clearly described the strikers’ status.
It specifically stated that the replacement workers were
temporary, and unequivocally invited the strikers to return
to work. Thus, no “prudent person” would have believed he
or she had been discharged rather than temporarily re-
placed.4
It is also significant that the Respondent did not follow
any of its normal procedures for terminating employees;
it did not issue final paychecks or discharge notices; it
did not require the striking employees to return company
property; and it continued paying their health insurance
premiums through the month of August.

4 Contrary to my colleagues, I do not believe that the August 2 Kal-
amazoo Gazette article would cause the strikers to reasonably believe
they had been discharged. First, the relevant standard looks to whether
the conduct of the employer, not third parties, created ambiguity.
Lieser Construction LLC, supra at 415–416. Second, there is no evi-
dence that the strikers read the Kalamazoo Gazette. Finally, only 2
business days after the article was published, the Respondent unequivo-
cally invited the strikers to return to work.

My colleagues’ efforts to discount the impact of the
clear written notice delivered to the union and employees
through the August 6 and September 28 letters are unper-
suasive. First, they note the letters did not disavow
Robbert’s initial remarks to employees or the Kalamazoo
Gazette article by expressly stating that the strikers had
not been discharged. As the majority elsewhere con-
cedes, however, our standard does not turn on the use of
formal words, but rather looks to the “entire course of
relevant events.” And, as noted above, the focus is on
the words and actions of the employer, not newspaper
reports over which the employer exercises no control.
Here, the Respondent’s letters explicitly referred to the
replacement workers as “temporary,” invited the strikers
to return to their jobs, and made clear that the use of re-
placements would continue only if the employees re-
mained on strike. My colleagues contend that only an
expert in labor law would have understood the import of
such language. I disagree. Reasonable employees know
what “temporary” means and would understand that an
invitation to return to work means that a job still exists
for them, i.e., they have not been discharged. Moreover,
the employees here were not without the benefit of guid-
ance, as the notice was filtered through the Union, which
was well versed in the lexicon of striker replacement law.
Finally, my colleague’s presumption that employees,
represented by an incumbent union, would be unfamiliar
with a company’s standard discharge procedures defies
logic. And even if one were to assume such ignorance,
reasonable employees certainly would have expected, in
light of the Respondent’s other written communications,
some formal notice that they had been discharged.
Which brings us to the effect, if any, of the COBRA
notices sent to the seven strikers participating in the Re-
spondent’s health insurance plan. As noted above, the
letters indicated that the “qualifying event” for COBRA
eligibility was “termination of employment” on Septem-
ber 1 (not August 1 as alleged in the complaint). Admin-
istrative assistant Sherry Shoemaker testified that she
initiated the COBRA notices by filling out an on-line
form that had a drop-down menu from which she was
required to select the “qualifying event.” The options on
the menu for covered employees were “termination of
employment” and “reduction of hours.” Shoemaker
testified that she chose “termination of employment,”
rather than “reduction of hours,” because she believed
that “reduction of hours” was “for people that are still
working.” While unfortunate in hindsight, Shoemaker’s
rejection of the “reduction of hours” option was not un-
reasonable given that the striking employees were not
working any hours. Moreover, although not discussed by
the judge, the COBRA notices were sent to only 7 of the
PRIDE CARE AMBULANCE 1031
14 striking employees, and 2 of the 7 testified that they
never received the notices, while 2 others (Brigance and
Stanfill Wyman) returned to work shortly after receiving
the notices. Thus, only 3 of the 10 remaining strikers
received COBRA notices and did not return. There is no
evidence that the strikers who did not receive COBRA
notices were aware of the notices or that they were influ-
enced by the language in the notices. Moreover, any con-
fusion in the notices was soon eliminated by: the Re-
spondent’s September 28 letter to Meulman, once again
unconditionally inviting the striking employees to return
to work; the return to work of Brigance and Stanfill
Wyman on September 5 and October 10, respectively;
and the Respondent’s January 29 letter expressly notify-
ing the strikers that they had not been discharged and
again inviting them to return to work.5
In sum, considering the entire course of relevant events
from the striking employees’ perspective, I am persuaded
that a prudent person would not reasonably have under-
stood that he or she had been discharged.
2. Allegations related to requalification for the
health care plan
The judge found that the Respondent violated various
sections of the Act by imposing on returning strikers a
90-day enrollment waiting period to requalify for health
benefits. I disagree.
The test for determining whether denial of a benefit to
strikers violates Section 8(a)(3) and (1) is set forth in
Texaco, Inc., 285 NLRB 241, 245–246 (1987). Under
Texaco, the General Counsel has the prima facie burden
to show some adverse effect of the benefit denial on em-
ployee rights. The General Counsel can meet this burden
by showing that (1) the benefit was accrued, and (2) the
benefit was withheld on the apparent basis of the strike.
The burden then shifts to the employer to show a legiti-
mate and substantial business justification for denying
the benefit. If the employer proves a business justifica-
tion, the Board may nevertheless find that the employer
has committed an unfair labor practice if the conduct is
demonstrated to be “inherently destructive” of important
employee rights or motivated by antiunion intent.
Whether the General Counsel has met the prima facie

5 My colleagues observe that the requirement that returning strikers
Brigance and Stanfill Wyman submit to an interview and wait 90 days
to requalify for health insurance coverage reinforced the strikers’ belief
that they were discharged. As discussed below, I find nothing unlawful
in that requalification obligation. Further, there is insufficient evidence
that Brigance and Stanfill Wyman were required to submit to an “inter-
view.” The evidence merely shows that they were required to meet
with Onderlinde and Robbert to discuss and execute a “Return to Work
Statement” acknowledging that they were returning on a status quo
basis (with the exception of the 90-day reenrollment period) and of
their own free will, without having been offered special incentives.
burden of proving that the health insurance benefit was
accrued depends on an interpretation of the relevant pro-
visions in the insurance plan and the Respondent’s past
practice of applying the provisions. Id. at 246 .
Applying these principles here, I find that the General
Counsel did not establish a prima facie case. The Re-
spondent’s insurance plan specifies that, in order to be
eligible for insurance, an employee must be working
“full time” and it defines full time as “36 hours per
week.” The insurance plan specifies further that “[t]he
eligibility waiting period for all new employees, rehires,
or employees who return to work will be 90-days from
the date of hire, rehire, or return.” (Emphasis added.)
Because they were not working as a result of the strike,
the strikers did not satisfy the eligibility requirements
under the plan and the Respondent terminated their cov-
erage.6 When they returned to work, the strikers were
required to wait 90 days to reenroll, pursuant to the
above-quoted provision. Thus, the insurance benefits
were not accrued at the time of the strike.
Moreover, even assuming arguendo that the General
Counsel established a prima facie case, the Respondent
met its burden of proving a legitimate and substantial
business justification by demonstrating reliance on a rea-
sonable and arguably correct interpretation of a nondis-
criminatory provision of its health plan. As stated above,
the Respondent interpreted the plan language specifying
that “[t]he eligibility waiting period for all . . . employees
who return to work will be 90-days” to require that strik-
ers who return to work wait 90 days before reenrolling in
the plan. The Respondent’s interpretation of the plan is
reasonable on its face and there is no evidence of a con-
trary past practice or interpretation. Finally, the 90-day
waiting period was not “inherently destructive” of em-
ployee rights, nor was it motivated by antiunion animus.
The Respondent’s implementation of the waiting period
had a relatively slight effect on employee rights and it
was not discriminatory; there is no evidence that the Re-
spondent ever deviated from its policy and there is no
evidence that nonstrikers were treated more favorably
than strikers in this respect.
My colleagues argue that, even if the strikers were not
discharged, the Respondent unlawfully imposed the 90-
day reenrollment period. However, the majority relies
upon decisions (Textron, Inc., 257 NLRB 1, 14–15

6 COO Onderlinde testified that the Respondent has consistently in-
terpreted the plan language to require all employees who experience a
break in coverage for any reason to wait 90 days to reenroll.
Onderlinde cited as an example nonunit employees covered under the
same plan who went from full time to part time. Just like the strikers in
this case, those employees were required to wait 90 days to reenroll
when they returned to full-time employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1032
(1981), enf. denied in relevant part 687 F.2d 1240 (8th
Cir. 1982), cert. denied 461 U.S. 914 (1983), Ace Tank &
Heater Co., 167 NLRB 663 (1967), and Cone Bros. Con-
tracting Co., 158 NLRB 186, 187–188 (1966)), that sub-
stantially predate Texaco, supra, which established the
current test for determining whether the denial of a bene-
fit to strikers violates Section 8(a)(3).7 Moreover, in this
case, unlike those cited by the majority, the Respondent
established a legitimate and substantial business justifica-
tion, as required under Texaco, for imposing on the re-
turning strikers a 90-day enrollment waiting period. Tex-
tron and Ace are also distinguishable on their facts. In
Textron, supra at 9, the judge found, and the Board
adopted that finding without further comment, that
“strikers were treated differently under the plan from
employees who ceased active work” for reasons other
than the protected activity of striking. Id. Here, by con-
trast, there is no evidence that strikers were actually
treated any differently under the insurance plan than oth-
er employees who were not working full time.8 Finally,
in Ace, supra at 664–665, the Board found that the em-
ployer was responsible for the restoration of a returning
striker’s insurance benefits because the employee was
unlawfully discharged. As discussed above, the strikers
here were not discharged.9
Because I find that the implementation of the 90-day
reenrollment waiting period was not unlawful, it follows
that the announcement of the waiting period did not vio-
late Section 8(a)(1). Similarly, because the waiting peri-
od was mandated by the insurance plan, which is not
alleged to violate the Act, it follows that the Respondent
did not violate Section 8(a)(5) by unilaterally implement-
ing the waiting period or by dealing directly with em-

7 The majority contends that the Texaco framework only applies in
determining whether an employer unlawfully withheld benefits during a
strike, but not to the facts here where an employer has imposed a
requalification period for benefits for returning strikers. However, the
Board, in Advertiser's Mfg. Co., 294 NLRB 740, 744 (1989), relied on
Texaco, in determining whether the employer unlawfully imposed a
waiting period on returning strikers for disability and life insurance.
8 My colleagues assert that the strikers were treated differently under
the Respondent’s plan, pointing to language in the plan documents
indicating that the Respondent may extend coverage for laid-off or
disabled employees. However, Onderlinde’s uncontradicted testimony
was that the Respondent has consistently interpreted and applied the
plan to require employees who experience a break in coverage for any
reason to wait 90 days to reenroll, and there is not a shred of evidence
to suggest that the Respondent has ever departed from that practice.
9 My colleagues claim that the Board’s rationale in Ace was not
based on the employee’s discharge. I disagree. The Board clearly
stated that the discriminatee was entitled to the restoration of his insur-
ance benefits as part of the remedial order for the unlawful discharge.
167 NLRB at 664. It reasoned that the discriminatee was unfairly
treated as a new employee with respect to insurance coverage because
of the discharge. Id.
ployees regarding it. Accordingly, I would dismiss these
allegations.

A. Bradley Howell, Esq., for the General Counsel.
Kalyn D. Redlowsk, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Kalamazoo, Michigan, on February 20 and 21,
2008, pursuant to a complaint that issued on December 31,
2007, and that was amended on February 6, 2008.1 Additional
amendments were made at the hearing and after the close of the
hearing. As amended, the complaint now alleges that the Re-
spondent maintained certain rules that impinge upon employ-
ees’ Section 7 rights, threatened striking employees, and ren-
dered assistance to employees in an effort to decertify the
Charging Party Union in violation of Section 8(a)(1) of the
National Labor Relations Act (the Act), discharged striking
employees and one employee who made common cause with
the striking employees in violation of Section 8(a)(3) of the
Act, required striking employees who returned to work to wait
90 days for health care coverage in violation of Section 8(a)(3)
of the Act, and unilaterally implemented return to work state-
ments and dealt directly with two returning strikers in violation
of Section 8(a)(5) of the Act. The Respondent’s answer denies
any violation of the Act. I find that the Respondent did violate
the Act substantially as alleged in the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing2
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Pride Ambulance Company, d/b/a Pride
Care Ambulance, Care-A-Van (the Company), is a corporation,
with facilities in Kalamazoo, Michigan, that provides transpor-
tation services to the public pursuant to a contract with the city
of Kalamazoo. The Company annually derives gross revenues
in excess of $500,000 from its operations and provides services
valued in excess of $50,000 to the city of Kalamazoo. The Re-

1 All dates are in 2007, unless otherwise indicated. The charge was
filed on October 5 and was amended on November 14 and December
12.
2 The brief of the Respondent refers to correspondence with the Re-
gion 7 Resident Office in Grand Rapids, Michigan, and attaches that
correspondence to its brief. The foregoing documents were not offered
or admitted into evidence, are not part of the record, and have not been
considered. The brief of the Respondent incorrectly states that the Gen-
eral Counsel offered no evidence with regard to par. 10 of the com-
plaint. GC Exh. 2, a stipulation by the Respondent, admits that the
Respondent “maintained an Employee Handbook and Policy and Pro-
cedure Manual containing the language set forth in paragraphs 10(a),
10(b) and 10(c)” of the complaint. The Respondent correctly states that
the General Counsel presented no evidence relating to unlawful com-
ments allegedly made at a local restaurant on September 11, and I shall
recommend that those allegations be dismissed.
PRIDE CARE AMBULANCE 1033
spondent admits, and I find and conclude, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The Respondent admits, and I find and conclude, that Local
7, 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. Overview
The Company provides various transportation services in and
around Kalamazoo as well as in Nashville, Tennessee. In Kal-
amazoo, the Company operates out of two facilities, a facility
located on Portage Road from which the ambulance and wheel-
chair division and Metro van division operate and a facility
located at Cork Street from which the Care-A-Van division
operates. Timothy Onderlinde is the chief operating officer
(COO), and he oversees all operations of the Company. Becki
Russon is the general manager of the Company. Both
Onderlinde and Russon work out of the Portage Road facility.
Dan Robbert is transportation manager for the Care-A-Van
division, and his office is located at the Cork Street facility. The
complaint allegations relate only to the Care-A-Van division.
The Company operates the Care-A-Van division pursuant to
a contract with the city of Kalamazoo. Most of vehicles utilized
are provided by the city of Kalamazoo, but the Company is
responsible for maintaining them. Prior to the Company’s ac-
quisition of the contract in late 2005, the services provided by
the Care-A-Van division were performed by a predecessor
identified in the record as TMI. The Company began operating
the Care-A-Van division in January 2006. The transportation
services provided include transporting customers for personal
business including scheduled medical appointments. There are
three dispatchers at the Cork Street facility who schedule the
pickup of customers.
The Union was certified on April 27, 2006, as the exclusive
bargaining representative of the Care-A-Van drivers in the
appropriate unit defined as follows:

All full-time and regular part-time drivers employed by the
Employer in its Care-A-Van Division, located in Kalamazoo,
Michigan, but excluding clerical employees, mechanics,
guards and supervisors as defined in the Act, and all other
employees.

Negotiations for a collective-bargaining agreement were un-
successful. In June, the employees voted to reject the contract
being offered by the Company. Contemporaneously, in the
summer of 2007, the drivers experienced problems with the
buses that they were driving, including breakdowns and brake
failure. On July 30, the members voted to strike. On August 1,
the Union struck. The central issues in this proceeding relate to
that strike.
B. Procedural Matters
The complaint was amended on February 6, 2008, to delete
employee Gary Yeo from the list of striking employees that the
Respondent allegedly discharged. Yeo returned to work on
August 1. The amendment also alleges that Pat Smith, who is a
dispatcher and is not in the unit, was discharged because she
“made common cause with the strikers and joined the strike.”
The Respondent argues that it was “blind sided” by this
amendment to which it had no opportunity to respond and
moves for dismissal because the allegation is not “closely relat-
ed” to the discharge of strikers allegation and is time barred,
coming more than 6 months after August 2, the last date that
Smith worked. The Respondent also argues that the charge
covers only discharges on August 1. The initial charge herein
alleged that, on August 1, the Respondent “discharged all em-
ployees that participated in the strike.” The charge, as amended
on November 11, alleges that the Respondent, on August 1,
“discharged employees because they engaged in a strike.” The
Respondent fails to acknowledge that Smith was named as a
striking employee in the initial complaint and that its answer,
which gives a blanket denial that it did not discharge the listed
striking employees, does not treat Smith separately. The answer
does not raise an affirmative defense, as the Respondent did at
the hearing, that Smith quit and that she was not protected by
the Act because she was a supervisor. The Respondent was
fully aware that Smith was alleged as a discriminatee. The
amendment makes clear that she was a nonunit employee who
made common cause with the strikers. The one day discrepancy
between August 1 and 2 is immaterial. The amendment was
proper, and the Respondent has not been prejudiced in any way.
The Respondent’s motion to dismiss is denied.
At the end of the second day of hearing, February 21, 2008,
counsel for the General Counsel moved that the hearing be
recessed sine die until he could ascertain when a witness who
had undergone emergency surgery would be available. On
March 10, 2008, counsel for the General Counsel, citing the
continuing unavailability of the witness, filed a motion that two
documents (GC Exhs. 17(a) and (b)), be received, that the dis-
crete allegations about which the unavailable witness was ex-
pected to testify be withdrawn, and that the record be closed.
On that same day, I held a conference call with all parties. The
parties agreed that the record was complete regarding the alle-
gations that were litigated at the hearing and requested that they
be permitted to file briefs. The Respondent had no objection to
the proffered exhibits or withdrawal of the complaint allega-
tions. The General Counsel filed a corrected motion dated
March 11, 2008, and on March 17, 2008, I issued an order re-
ceiving General Counsel’s Exhibits 17(a) and (b), granting the
corrected motion to withdraw paragraphs 14, 15, and 17 of the
complaint, closing the hearing, and setting the date for receipt
of briefs.
C. Facts
At about 5:30 a.m. on August 1, drivers represented by the
Union came to the Cork Street facility and parked at a nearby
ball field. They then went to the entrance to the facility carrying
picket signs. Dispatcher Patricia (Pat) Smith observed them and
called Transportation Manager Dan Robbert at about 5:45 a.m.
Robbert arrived about 6:30 a.m., opened the window on his
vehicle and motioned for Shop Steward Ronald (Ron) Smeltzer
to come to him. Smeltzer did so. Robbert told him that he
wanted to be “perfectly clear,” that “if you guys don’t come
back now you don’t have jobs to come back to.” Smeltzer re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1034
plied that “this could have been avoided if Tim Onderlinde
would negotiate with us and fix these buses.” Robbert recalled
only that he told Smeltzer to tell the striking employees “to
please come back to work, that we had several riders counting
on their rides.” I credit Smeltzer. The striking employees con-
tinued to picket.
Although Robbert did not mention returning to the picket
line prior to late morning, when he went once to request Shop
Steward Smeltzer to contact Union Business Agent Andy
Meulman and once to canvass the employees, employees Patri-
cia Brigance and Dean Chestnut recall that Robbert came to the
picket line earlier in the day. Brigance placed this first visit at
about 7:30 a.m. She recalled that Robbert informed the em-
ployees that they could return to work and “it would be as if
nothing happened.” Chestnut placed this visit at about 8:30 a.m.
He recalls that Robbert stated that the employees could return
“without any repercussions” and “if you didn’t come back you
can consider yourself terminated.” Robbert did not deny speak-
ing twice with the employees. I find that the first occasion that
he did so was shortly before 8 a.m. I credit the testimony of
Chestnut that, on that occasion, Robbert did say “terminated.” I
am mindful that the evidence establishes that Brigance did not
hear that comment, but there is no evidence that on this occa-
sion Robbert formally addressed all of the striking employees
as a group. I note that, although Robbert denied informing any
employees that they were fired or did not have a job, he did not
deny using the term “terminated.”
COO Onderlinde and General Manager Russon arrived at the
Cork Street facility at 8 a.m. or shortly thereafter. Onderlinde,
Russon, and Transportation Manager Robbert met to “make
sure that [critical medical transports] got taken care of”
such as transporting individuals to dialysis appointments that
could not be missed. Onderlinde spoke with the company attor-
ney shortly after 9 a.m. Around 9:30 a.m. he directed Robbert
to arrange a meeting with the spokespersons for the Union.
Robbert went to the picket line and requested that Shop Stew-
ard Smeltzer contact Union Business Agent Meulman. At ap-
proximately 10:30 a.m. Smeltzer, Meulman, Onderlinde,
Robbert, and Russon met in the Cork street office. Russon took
some rough notes.
The meeting began with COO Onderlinde asking why the
Union was striking. Business Agent Meulmen pointed out that
members had rejected the Company’s contract offer, and
Onderlinde stated hat he understood that the strike was, there-
fore, an economic strike. Shop Steward Smeltzer interjected
that it was a safety strike, citing the condition of the buses and
noting that he had spoken with Robbert in July about the condi-
tion of the buses, at which time Robbert had told him that there
were seven buses on order and that the Company did not “want
to put a lot of money into these buses that they were going to
retire.” Robert disputed Smeltzer’s recollection of their conver-
sation. The conversation deteriorated, with various assertions of
messages being left to which no response was made and
Onderlinde stating that the Company was taking the position
that the strike was an economic strike and that the drivers
would be permanently replaced.
There is no claim that the employees ceased work concerted-
ly because of abnormally dangerous conditions under Section
502 of the Act. Although Shop Steward Smeltzer characterized
the strike as a “safety strike,” the Union was seeking to have
the Company address the employees’ concerns regarding the
condition of the buses, a working condition. The employees, by
striking in order to have their concerns addressed, were en-
gaged in an economic strike. TNS, Inc., 309 NLRB 1384, 1365
(1992).
As Business Agent Meulman and Shop Steward Smeltzer
were leaving, General Manager Russon asked them to ask the
drivers if they would “talk to them [the Company].” Smeltzer
did so, but no employee expressed a willingness to talk to the
Company.
COO Onderlinde “wanted to find out that day how many
employees were willing to return.” He “didn’t know if he
[Meulman] would or not” convey the request that the Company
wanted to speak with the strikers. Robbert recalls that
Onderlinde instructed him “to go out on the picket line and
meet with each of the drivers and let them know that they could
be temporarily or permanently replaced if they did not return to
work, and wanted me to get a response from each individual
driver.”
As might be expected, the testimony regarding the time of
Robbert’s meeting and what was said varies. Insofar as the
meeting occurred shortly after the Union and Company met in
the office, I find, consistent with the testimony of Smeltzer, that
the meeting took place about 11 a.m. The employees assembled
in a semicircle. Robbert, who was carrying a legal pad, ad-
dressed them as a group and then asked each individually
whether that employee was going to return to work and record-
ed the response on the legal pad. Employee Gary Yeo was the
only striker who stated that he would return, and he did so.
Robbert claims that, when he addressed the group of em-
ployees, he told them that the Company “wanted them to come
back to work, no questions asked,” but that if they did not re-
turn, “we could temporarily or permanently replace you.” No
striker testified that Robbert stated “temporarily or permanently
replace.” Russon’s notes, which reflect the responses that
Robbert recorded on the legal pad when he addressed each
employee individually, reflect that the employees “were asked
to come back to work or risk losing their job.”
Shop Steward Smeltzer recalled that Robbert stated that he
“wanted to be very clear on it and he had to have it in writing
what our decisions were.” He then stated that “if we came back
to work right then there would be no questions asked, and then
we could come back. If we didn’t, then we could look for other
jobs.” Employee Robert Schellenberg, who drives for the Com-
pany in the summer, specifically denied that Robbert said tem-
porarily or permanently replaced. He recalled that Robbert
stated that the employees could come back in to work, “but if
you don’t come in to work you don’t have a job.” Although
Schellenberg placed the meeting earlier in the day, he testified
that this was the meeting at which Robbert addressed each em-
ployee individually and at which employee Yeo agreed to re-
turn. Employee Cory Snyder recalled that, on the occasion that
Robbert asked for their decision and recorded their responses,
he informed them that if they did not return to work “that we
wouldn’t have a job.”
PRIDE CARE AMBULANCE 1035
I am mindful that Business Agent Meulman and employee
Ronald Howard recalled that Robbert used word “terminated”
and that employee Patricia Brigance recalled him stating that
the employees who did not agree to return were fired. I find that
they testified to their understanding of his comments. Employee
Dean Chestnut recalled no comment relating to the effect of not
returning on the occasion that Robbert had the legal pad and
addressed each employee individually. Insofar as Robbert him-
self claims that he mentioned consequences, claiming that he
said, “[W]e could temporarily or permanently replace you,” I
find that Chestnut recalled nothing because he heard nothing
that contradicted Robbert’s previous statement to him that “if
you didn’t come back you can consider yourself terminated.”
I credit Smeltzer’s recollection of Robbert’s phrasing, that if
the employees did not come back “then we could look for other
jobs.” Both Schellenberg and Snyder confirm that Robbert’s
statement related to the absence of the employees’ jobs if they
did not return. I do not credit Robbert. Russon’s notes reporting
the meeting of Robbert with the employees do not mention
temporary or permanent replacements. They reflect that the
employees “were asked to come back to work or risk losing
their job.” When testifying as an adverse witness pursuant to
Rule 611(c) of the Federal Rules of Evidence, Robbert was
asked whether “the entire group with the exception of Gary
Yeo were on strike, I mean as far as you knew, correct?”
Robbert answered, “I would say they walked off the job.”
When asked whether that was a strike, Robbert answered, “I
consider it to be abandoning their job.” I credit Smeltzer’s tes-
timony that Robbert stated that if the employees did not come
back “then we could look for other jobs.”
The list composed by Robbert reflects that the following em-
ployees refused to return to work:

Patricia Brigance Rodney Packard
Dean Chestnut Robert Schellenberg
Bradley Cosgrove Ron Smeltzer
Michele Holderman Cory Snyder
Ron Howard Rebecca Stanfill Wyman3
Ernie Kreitlow

Employee Rolland Wessell does not appear on Robbert’s list,
but both Robbert and Shop Steward Smeltzer testified that he
was one of the strikers. Insofar as he did not return to work, he
“could look for other jobs.”
General Manager Becki Russon was interviewed by the local
newspaper, the Kalamazoo Gazette, on August 1 regarding the
strike. On August 2, the newspaper published an article which
reported that Russon said that “Pride Care was in the process of
hiring new drivers and the striking workers would not be al-
lowed to return to work.” Russon testified that she was mis-
quoted, but that no retraction was sought because retractions
appear “on page 12 in the size 2 font.” Onderlinde testified
that the Company does not rely on the local newspaper to
convey messages to employees. No communication disavow-
ing the foregoing report was sent to the employees.

3 The complaint names Rebecca Stanfill. Her last name is now Wy-
man. To avoid confusion I shall refer to her as Stanfill Wyman.
On August 6, COO Onderlinde wrote Business Agent
Meulman stating that he was “seriously disappointed” by the
Union’s actions and characterizing statements regarding vehicle
safety that were reported in the newspaper “to be disingenu-
ous.” The letter does not disavow the statement relating to not
allowing the striking workers to return. In the final paragraph,
Onderlinde states that to “avoid further damage to our relation-
ship, I once again invite the striking Union members to return
to work and encourage the Union bargaining team to return to
the bargaining table.” The letter was sent to Meulman, not the
employees.
In undated letters that were sent on August 23, Onderlinde
wrote all employees enrolled in the Company’s group health
insurance plan. The letter states:

Without any prior notice or warning, on August 1,
2007, you along with 14 other union members went on
strike and began picketing. Despite Pride Care Ambu-
lance’s repeated requests that you (and the other striking
employees) return to work and the bargaining table, you
have consistently refused to do so. An employer is not re-
quired to finance strike activity against itself. Accordingly,
if you continue to strike and refuse to return to work, Pride
Care Ambulance will cease paying its portion of your
health insurance premiums effective September 1, 2007.
Attached please find a notice of your COBRA rights.
Finally, please be advised that you will be required to
comply with both Priority Health and Pride Care Ambu-
lance re-enrollment requirements (which includes a 90-day
waiting period) if you do not elect COBRA coverage and
later return to work and reenroll . . . .

The attached notice informed the employees that “Pridecare
[sic] Ambulance uses Infinisoure COBRA Compliance System,
Inc., for all our Cobra coverage” and sets out contact infor-
mation. Employees Patricia Brigance and Ron Howard con-
firmed that, prior to receipt of the foregoing letter, the only
occasion upon which they had encountered a waiting period for
insurance coverage was when they were hired as new employ-
ees.
On August 29, Infinisource sent notices to the striking em-
ployees who were enrolled in the group plan advising the em-
ployees of their COBRA rights. The heading on the notice re-
flects that it is from “Pride Ambulance Co.” The first paragraph
states that “a COBRA qualifying event, which terminates your
group health plan coverage, has been reported.” The qualifying
event, set out in a box, states that the qualifying event is “Ter-
mination of Employment” as of “9/1/2007.”
Administrative Assistant Sherry Shoemaker testified that
Onderlinde told her to take the striking employees off of insur-
ance and send COBRA notices. She denied that he told her that
the striking employees had been fired. She explained that she
selected “termination” as the qualifying event “because there
wasn’t anything that really fit.” She did not consult with
Infinisource.
I find it incomprehensible that Onderlinde, whose letter ad-
vised the employees of the requalification period that would be
imposed if they did not return to work, was unaware that the
striking employees who had been enrolled in the health plan
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1036
would be advised by Infinisource that they were no longer en-
rolled because of “Termination of Employment.” A status re-
port sent to the Company on September 4 lists the employees
whose coverage ceased and, in each instance, states that the
event was “Termination of Employment.”
The parties met for collective-bargaining negotiations with a
mediator in September and again in October. The negotiations
were unsuccessful. Between the negotiating sessions, on Sep-
tember 28, Onderlinde again wrote Meulman expressing again
that he was “seriously disappointed” by the Union’s actions.
The final paragraph states that to “avoid further damage to our
relationship . . . I once again invite the striking Union members
to return to work and encourage the Union bargaining team to
either return to the bargaining table or continue with media-
tion.” The letter was sent to Meulman, not the employees.
On January 29, 2008, Onderlinde sent a letter to all striking
employees that states, in pertinent part:

As you may know, the National Labor Relations Board has
filed a Complaint against the Company alleging, among other
things, that the Company fired you on August 1, 2007, after
you went on strike. The Company disagrees with such Com-
plaint allegation, among others. So there is no confusion, and
consistent with Company’s August 1, 2007, oral representa-
tions and August 6 and September 28 letters, I am once again
letting you know that you were not terminated, you are wel-
come to return to work, and the Company stands ready and
willing to continue negotiations with your bargaining repre-
sentative(s). . . . . [T]here is nothing in your personnel record
indicating that you have been terminated from the Company.
. . .

As already noted, the letters of August 6 and September 28
were sent to Meulman, not the employees. Neither letter states
that the employees have not been terminated. They state only
that the employees are invited to return. Administrative Assis-
tant Shoemaker testified that the Company does not receive the
COBRA notice sent by Infinisource to the employees, but the
Company did receive the status report that reflects that the
qualifying event for each striking employee was “Termination
of Employment” as of September 1. Thus, the representation
that there was nothing in the individual employee’s personnel
file reflecting termination would appear to be technically cor-
rect. The January 29, 2008 letter does not mention the undated
company letter sent on August 23 advising that employees who
do not elect COBRA will, like newly hired employees, be re-
quired to undergo a 90-day waiting period before reenrolling in
the group health plan.
Employee Michelle Cronk was not scheduled to work on
August 1. On the evening of August 1, Transportation Manager
Robbert called her about 5 p.m. and asked if she would be com-
ing in the following day, Thursday, August 2. Cronk replied
that she would “probably be there.” Robbert stated that “if I did
not show [up] to work Thursday morning August 2d that I
would be fired.” Cronk questioned, “[A]re you telling me if I
do not show up to work on Thursday morning that I’m fired?”
Robbert answered, “[Y]es, you are.” Upon going to the facility
on the morning of August 2, Cronk spoke with her coworkers
on the picket line and decided to “stand behind my coworkers
on the safety strike.”
Robbert denied that he informed Cronk that she would be
fired if she joined the strike. He acknowledged that he called,
asking whether she was coming in the following day. He recalls
that she answered that “as far as I know, I’ll be there,” and “that
was pretty much the extent of the conversation.” He does not
recall mentioning the strike. He denied telling her that if she
joined the strike she would be fired, but did not deny informing
her that if she did not show up for work that she would be fired,
the words that Cronk attributed to him. I credit Cronk who,
having heard what she understood to be a threat, confirmed her
understanding by questioning whether Robbert actually meant
what he had said.
On the morning of August 2, about 6:30 a.m., Robbert hand-
ed supervisory dispatcher Pat Smith a list of who was driving
that day. She observed that the name “P. Smith” was on the list
and asked whether that was her. Robbert replied that it was, and
Smith stated that that she was not going to drive, “I stand be-
hind the drivers; the buses are in terrible conditions [sic] and
for safety reasons I wasn’t driving either.” Robbert replied,
“[O]h, whatever,” and departed. At about 7 a.m., Robbert re-
turned. Smith, having stated that she would not drive, asked
Robbert what he wanted her to do. He stated that if she “wasn’t
going to listen to the things that management requested me to
do that he’d have to let me go.” Smith asked, “[D]oes that mean
you’re going to fire me?” Robbert stated, “[Y]es, I’m firing
you.” Smith stated that was “all I needed to know,” gathered
her belongings, and went to the picket line.
Upon cross-examination, when Smith was questioned by
counsel for the Respondent regarding being fired, the following
testimony was elicited:

Q. Now you testified that you asked Mr. Robbert
whether he was firing you, is that correct?
A. Yes.
Q. Didn’t he respond that that was only a possibility?
A. Nope.
Q. So if he testifies otherwise then he’s lying?
A. Yep.

Robbert testified to only one conversation in which he told
Smith that he needed her to “do this route for me until we can
get other people aboard,” and that she said she was not going to
because “I support the drivers.” Robbert testified that he re-
peated his request, that Smith asked, “[W]hat if I don’t . . . are
you going to fire me?” Robbert claims that he stated that “could
be a possibility,” and that Smith “gathered up her stuff and
left.”
Both upon demeanor and the sequence of events, I credit
Smith. Robbert did not acknowledge that there were two con-
versations and that the first began when he presented Smith
with a schedule that listed her as driver. Upon her refusal to
accept the assignment, he said, “[O]h whatever.” Robbert does
not have the authority to hire and fire but only to recommend in
that regard. When Smith refused to drive, I find that he went to
receive instructions. I need not speculate whether he consulted
with Onderlinde or Russon or both. He returned and informed
Smith that if she “wasn’t going to listen to the things that man-
PRIDE CARE AMBULANCE 1037
agement requested me to do that he’d have to let me go.” Smith
asked, “[D]oes that mean you’re going to fire me?” He replied,
“[Y]es, I’m firing you.”
Employee Patricia Brigance, who struck on August 1, called
Transportation Manager Robbert on August 31 and asked if she
could speak to him about returning to work. He told her that she
could but that she would have to speak with both him and COO
Onderlinde. They met on September 5 at the Portage Road
facility and spoke for about half an hour. At the conclusion of
the meeting, in what Brigance described as an “uncomfortable
moment,” they requested that she sign a return to work state-
ment. Brigance signed the document and returned to work. The
first paragraph of the return to work statement states that
Brigance will receive the same pay and benefits as provided in
the past with one exception, there “would be no health coverage
for a period of ninety (90) days” as explained in their meeting
on September 5 and in the letter sent “on August 23, 2007,
from Pride Care.” The second paragraph acknowledges that
Brigance “on my own accord have made contact with the em-
ployer,” that the employer did not “encourage me or offer me
any additional incentive to return to work,” and that Brigance
understood that “the employer is still using the same vehicles”
as it was on August 1. It concludes, “I agree to follow all com-
pany policies as with any other employees currently working at
the Care-A-Van division.”
Employee Rebecca Stanfill Wyman, met with Robbert and
Onderlinde on October 10, signed a similar statement, and re-
turned to work.
On September 20, employee Timothy Tyler filed a decertifi-
cation petition, Case 7–RD–3587, that was withdrawn on No-
vember 1. Transportation Manager Robbert was aware that
Tyler was circulating a decertification petition, and he had seen
it. Tyler, on what would have been a day or two prior to Sep-
tember 20, requested a company van to go to lunch, that “he
had something to mail.” Robbert admitted that he assumed that
the “something” related to the decertification petition. He de-
nied Tyler permission to use a company van, but permitted him
to take his personal truck, something that he “hardly ever” did.
Tyler requested postage because he did not want to pay to mail
the document, and Robbert told him to take it out of the “over-
age jar,” a jar in which drivers put overpayments. Typically,
Robbert would use the overpayments to purchase coffee and
doughnuts for the employees on Fridays. Employees had to
receive Robbert’s permission to take money from the jar.
D. Analysis and Concluding Findings
1. The discharge of the striking employees
The complaint, in subparagraph 18(a), alleges that the Re-
spondent discharged 13 striking employees.
Section 7 of the Act protects the right of employees “to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.” Section 13 provides that
“[n]othing in this Act . . . shall be construed so as either to in-
terfere with or impede or diminish in any way the right to
strike.” The discharge of employees for exercising their right to
strike violates Section 8(a)(1) of the Act, and, when the strike
constitutes union activity, discharge for engaging in a strike
violates Section 8(a)(3) as well because it constitutes “a blow to
the very heart of the collective-bargaining process.” Super
Glass Corp., 314 NLRB 596, 597 (1994).
The Respondent contends that the employees were not dis-
charged. The Board, in Kolkka Tables & Finnish-American
Saunas, 335 NLRB 844 (2001), overruled prior cases which
found no discharge when the employers engaged in brinks-
manship in order to “bluff strikers back to work.” Id. at
847–848. The Board has long held that informing employees
that “you better look for another job if you strike” or “similar
warnings” are threats that violate Section 8(a)(1) of the Act.
Lee A. Consaul, Inc., 192 NLRB 1130, 1153 (1971), enf. de-
nied on other grounds 469 F.2d 84 (9th Cir. 1972). Prior to the
decision in Kolkka Tables, the Board had, in some cases,
“focused on the employer’s intent behind the threat, mani-
fested by its subsequent conduct, particularly its willingness
to reinstate strikers.” Id. at 847. Under Kolkka Tables the
statements made by the employer are evaluated to determine
whether the employees “were not only unlawfully threat-
ened by the statements, but were also unlawfully dis-
charged.” The determination of whether striking employees
have been discharged is made “from the perspective of the
employees” and “is based on ‘whether the employer’s state-
ments or conduct would reasonably lead the employees to
believe that they had been discharged.’ NLRB v. Hilton Mo-
bile Homes, 387 F.2d 7, 9 (8th Cir. 1967). See Brunswick
Hospital Center, 265 NLRB 803, 810 (1982). “Moreover,
the employer will be held responsible when its statements or
conduct create an uncertain situation for the affected em-
ployees.” Id. at 846.
Robbert’s statement to Shop Steward Smeltzer at 6:30 a.m.
that “if you guys don’t come back now you don’t have jobs to
come back to” and his statement to employee Chestnut about 8
a.m. that “if you didn’t come back you can consider yourself
terminated” certainly constituted threats. The complaint alleges
no threats of discharge on August 1. Thus, the General Counsel
appears to consider those threats to be subsumed in the dis-
charge allegation. Insofar as there are no August 1 threat allega-
tions, I shall make no finding in that regard.
At the 11 a.m. meeting, when Robbert obtained the decision
of each striker as to whether he or she was going to return to
work, he stated that if the employees did not come back “then
we could look for other jobs.” Although Onderlinde testified
that Robbert has authority only to recommend terminations,
there is no evidence that any employee was aware of that limi-
tation. From the perspective of the employees, Robbert dis-
charged them. That conclusion is confirmed by the testimony of
the employees who incorrectly heard, but correctly concluded,
that he stated that they were fired or terminated.
The reasonable belief of the employees that they had been
discharged was confirmed by the article in the Kalamazoo Ga-
zette, published on August 2, which reported that General Man-
ager Russon stated that that “Pride Care was in the process of
hiring new drivers and the striking workers would not be al-
lowed to return to work.” I understand Russon’s rationale re-
garding the ineffectualness of a retraction, but the Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1038
never communicated to the striking employees that the report
was in error. The Respondent, in its brief, notes the testimony
that the Respondent does not “rely on the press to communicate
with their employees.” Accepting that proposition, the record
does establish that the Respondent communicates with its em-
ployees through letters and by telephone. Michelle Cronk was
called to determine whether she was going to report to work.
Letters signed by Onderlinde were sent to the employees whose
group health plan coverage was being discontinued. No letter
was sent and no telephone calls were made to employees con-
tradicting the statement made in the newspaper article.
Lest any employee continued to question his or her status
with the Respondent, all employees enrolled in the Respond-
ent’s health plan were informed in a notice from the Respond-
ent’s agent, with a heading reflecting that the communication
came from Pride Ambulance Co., that their coverage ceased as
of September 1 and that the event that qualified them for
COBRA coverage was “Termination of Employment.”
The Respondent, in its brief, notes that “none of the witness-
es testified that they relied on the Infinisource COBRA Notice
in determining they were fired.” The short answer to that ob-
servation is that that the COBRA notice simply confirmed what
they had been told on August 1. The fact that the COBRA no-
tice reported the effective date as 9/1/07 at best “create[d] an
uncertain situation for the affected employees” regarding
whether their termination for insurance purposes was differ-
ent from the date they understood that they had been termi-
nated. No letter was sent and no telephone calls were made to
employees contradicting the statement made in the COBRA
notices that the qualifying event was “Termination of Employ-
ment.”
The Respondent argues that COO Onderlinde’s letters of
August 6 and September 28 to Business Agent Meulman are
inconsistent with the termination of the strikers insofar as they
state that the Respondent “once again” invites them to return to
work. As the brief of the General Counsel points out, the letters
never state that the employees have not been fired, nor do they
state the terms upon which the employees would be permitted
to return. The letters, which were sent to Meulman, not the
employees, chastise the Union for going on strike. The letter of
August 6 disputes the Respondent’s knowledge of the safety
issues that concerned employees. Neither letter requests that
Meulman become a messenger for the Respondent or states that
the Respondent expects him to act as its agent in inviting the
employees to return to work. When the Respondent intended to
contact employees it called them, as when Robbert called
Cronk, or wrote them directly, as Onderlinde did on August 23
regarding insurance and on January 29, 2008, when he stated to
the employees that they had “not been terminated.”
The Respondent further argues that, even if it be found that
the employees were discharged, the “invitations that they return
to work effectively rescinded their terminations.” I disagree.
The “invitations” in the letter to Meulman did not assure that
the employees would be returning under the same working
conditions, and as of September 1, it was clear that they would
not be. Employees who had been covered by the Respondent’s
health plan were required to requalify as new employees, which
constituted denial of an accrued benefit. The two employees
who returned, Patricia Brigand on September 5, and Rebecca
Stanfill Wyman on October 10, were required to submit to an
interview conducted by both COO Onderlinde and Transporta-
tion Supervisor Robbert prior to being permitted to return to
work, a requirement inconsistent with their status as returning
strikers. See Sunol Valley Golf Club, 310 NLRB 357, 373
(1993), citing Scalera Bus Service, 210 NLRB 63, 63–64
(1974). At the conclusion of that interview they were required
to acknowledge, in writing, their understanding that they were
being required to requalify for coverage in the group health
insurance plan, the same requirement imposed upon new em-
ployees.
The Respondent points to the return to work of Brigance on
September 5 and Stanfill Wyman on October 10 as evidence
that the employees had not been discharged. As already noted,
they were returned with different working conditions in that
they had had to requalify for group health coverage. As noted
in Kolkka Tables & Finnish-American Saunas, supra at 847
fn. 7, their reinstatement “does not alter the illegal character of
the original discharge, but only eliminates the need for a rein-
statement order for them.”
On January 29, 2008, the Respondent sent a letter to each
striking employee stating that they had not been terminated.
That of course is the same contention that the Respondent has
maintained throughout this proceeding. The letter does not
address the August 29 communication from Pride Care Ambu-
lance Co. to employees who were enrolled in the health insur-
ance plan that stated that the qualifying event for their COBRA
eligibility was “Termination of Employment.” The Respond-
ent’s brief acknowledges that the January 29, 2008 letter does
not meet the standards set out in Passavant Memorial Area
Hospital, 237 NLRB 138 (1978), with regard to disavowal of
an unfair labor practice and, consistent with the position that
the Respondent has maintained, states that no Passavant con-
tention is being made because “the Company is not admitting
(and has never admitted) that it committed any unfair labor
practice.” Nevertheless, the Respondent asserts that any
backpay liability should cease at least as of January 29, when
the letter was sent. I disagree. “The fact that the employees
were then [when discharged] on strike does not preclude a find-
ing of unlawful discharge, with entitlement to backpay com-
mencing at that point. Naperville Ready Mix, Inc., 329 NLRB
174, 185 (1999). In Grosvenor Resort, 336 NLRB 613, 618
(2001), the Board summarized the employer’s obligation to
discharged strikers stating:

“[W]hen strikers are unlawfully discharged, they are not re-
quired to request reinstatement since, by discharging them,
the employer has signaled that he does not regard them as
strikers entitled to reinstatement upon request.” Naperville
ready Mix, Inc., 329 NLRB 174, 185 (1999). Thus, as the
Board has long held, “a discharged striker is entitled to
backpay from the date of discharge until the date he or she is
offered reinstatement.” Abilities & Goodwill, Inc., 241 NLRB
27 (1979), enf. denied on other grounds 612 F.2d 6 (1st Cir.
1979).

In view of the Respondent’s contention that the employees
were not discharged, this is not a dual motive case, and an
PRIDE CARE AMBULANCE 1039
analysis under Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981). cert. denied 455 U.S. 989
(1982), is not required. Even if a Wright Line analysis were
applicable, the General Counsel established union activity,
employer knowledge of that activity, animus towards that activ-
ity, and the discharge of the striking employees. The Respond-
ent presented no evidence that its actions would have been
taken in the absence of union activity.
By discharging the 12 employees who engaged in a strike on
August 1 and by discharging employee Michele Cronk for en-
gaging in the strike beginning on August 2, the Respondent
violated Section 8(a)(1) and (3) of the Act.
2. The discharge of Patricia (Pat) Smith
The complaint, as amended, in subparagraph 18(b), alleges
that Smith was discharged because she “made common cause
with the strikers and joined the strike.”
The Respondent contends that Smith quit, that she was not
discharged. The document sent to her with regard to the cancel-
lation of her insurance states “Termination of Employment,”
but the effective date with regard to Smith is August 1, 2007.
As discussed above, I have found that Smith was discharged
when she refused to perform struck work.
The Respondent further contends that, if it be found that
Smith was discharged, it was privileged to do so because she
was a supervisor.
Section 2(11) of the Act provides that a supervisor is “any
individual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge, as-
sign, reward or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to rec-
ommend such action, if in connection with the foregoing the
exercise of such authority is not of a routine or clerical nature,
but requires the use of independent judgment.” The burden of
establishing that an individual is a supervisor is upon the party
asserting the supervisory status of the individual in question.
Smith’s title as a supervisor is “merely secondary indicia of
supervisory status.” John N. Hansen, Co., 293 NLRB 63, 64
(1989). There is no evidence that she had any authority to “hire,
transfer, suspend, lay off, recall, promote, discharge, . . . disci-
pline other employees, . . . or to adjust their grievances, or ef-
fectively to recommend such action.”
Transportation Manager Robbert testified that Smith was
promoted to supervisor in order to “help facilitate the day-to-
day operations.” He claimed that she supervised both the two
other dispatchers and the drivers, but acknowledged that she,
like the other two dispatchers, was hourly paid and that she had
no authority to discipline. He gave no example relating to su-
pervision of the other dispatchers. He admitted that drivers, “for
the most part,” drive the same route each day. Regular custom-
ers have a regular pickup schedule. What are referred to as
“demand riders,” customers who are not on the schedule but
who call the office for transportation, are fit into the schedule.
As described by Robbert, the dispatchers would see where “the
drivers are geographically and say, oh, that person is closer to
driver A and put him on his route.” All dispatchers perform this
function. When asked what additional duties Smith performed
because of her supervisory status, Robbert answered, “[T]he
movement of routes, the assignment of routes, the assignment
of buses, that kind of thing.” He then altered the foregoing an-
swer stating that Smith could “assign routes, assign vehicles,
alter routes if need be, to make sure that daily operations were
taken care of.” He gave no details or examples. It is incumbent
upon the party with the burden of proof to adduce “concrete
evidence showing how assignment decisions are made.” Frank-
lin Home Health Agency, 337 NLRB 826, 830 (2002).
Smith explained that her job tasks are the same as the other
two dispatchers but that she was the “only one that knew the
Care Van system.” That system, which is not computerized,
requires looking “at where the person needs to go to and from
and . . . figure[ing] out where to put the ride.” “The assignment
of tasks in accordance with an Employer’s set practice, pattern
or parameters, or based on such obvious factors as whether an
employee’s workload is light, does not require a sufficient ex-
ercise of independent judgment to satisfy the statutory defini-
tion [of a supervisor].” Franklin Home Health Agency, supra at
830, citing Express Messenger Systems, 301 NLRB 651, 654
(1991), and Bay Area-Los Angeles Express, 275 NLRB 1063,
1075 (1985).
The Respondent argues that Smith “had both the responsibil-
ity for and authority to assign both routes and buses to the driv-
ers,” and points out that, on the morning of the strike, Smith
testified that she had to “re-route the routes and figure out who
was going to drive them.” The Respondent presented no evi-
dence that Smith’s actions relating to re-routing and assigning
available drivers involved independent judgment on her part
rather than action dictated by management. On the morning of
the strike, Onderlinde, Russon, and Robbert met between 8 and
9 a.m. to “make sure that [critical medical transports] got taken
care of.” Purported supervisor Smith was not included in that
meeting, nor was she asked to accompany Robbert when he
addressed the drivers, although he claimed that she supervised
the drivers. There is no probative evidence that Smith, under
normal circumstances, had the authority to assign routes. With
regard to the assignment of buses, her uncontradicted testimony
establishes that, if a driver’s bus was not operating, she would
assign a working bus from “whatever bus was left.” Even if
Smith made reassignments on the morning of August 1, that
occurred because of the unforeseen circumstance of the strike.
In Croft Metals, Inc., 348 NLRB 717 (2006), the Board, in
applying the analytical framework of Oakwood Healthcare,
348 NLRB 686 (2006), to work assignments dictated by un-
foreseen circumstances, noted that the lead person would
“sometimes switch tasks among employees.” The Board specif-
ically held that such actions do not constitute the “designation
of significant overall duties . . . to an employee” but was rather
an “ad hoc instruction that the employee perform a discrete
task.” Id. at 691. The assignments of an alternate bus due to a
breakdown and of a different route because of a strike consti-
tute ad hoc assignments.
Prior to becoming dispatch supervisor, Smith had filled in
for a few weeks after the former transportation manager left
until Robbert was hired. Filling in due to extraordinary circum-
stances does not confer supervisory status. St. Francis Medical
Center-West, 323 NLRB 1046 (1997). After being promoted,
she filled in for Robbert for a week when he was on vacation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1040
“[S]poradic assumption of supervisory duties during annual
vacation periods” does not establish supervisory status. Id at
1047, citing Jakel Motors, 288 NLRB 730 (1988).
Smith’s designation as supervisory dispatcher was predicated
upon her expertise regarding the basic routes which were the
same as they had been under the predecessor employer. Smith
testified that she “would have to run it by Dan [Robbert] if we
change any of the routes around.” New drivers, who would be
hired when a former driver quit, were given “whatever space
needed to be filled,” and that decision was made by Robbert.
Robbert did not contradict the foregoing testimony.
The burden of establishing supervisory status is upon the
party asserting that status. The Respondent has not met that
burden. The evidence in this case does not establish that Smith
assigned, responsibly directed, or exercised independent judg-
ment. Her discharge for making common cause with the strik-
ing employees by refusing to perform struck work violated
Section 8(a)(1) and (3) of the Act.
3. The allegations related to requalificaion for the
health care plan
The complaint, in paragraph 12, alleges that the Respondent
threatened striking employees with a 90-day waiting period for
health care coverage if they did not return to work; in para-
graphs 19 and 20, it alleges that the Respondent imposed the
90-day waiting period for health care benefits upon returning
strikers Brigance and Stanfill Wyman; in paragraph 22, it alleg-
es that the Respondent unilaterally “implemented the use of
Return to Work Statements and mandated that employees sign
said statements prior to being allowed to return to work;” and in
paragraphs 23 and 24, it alleges that the Respondent bypassed
the Union and “dealt directly with Unit employees regarding
Return to Work statements.”
The Respondent’s letter of August 23 states that the Compa-
ny is not required to finance a strike against itself, and the com-
plaint does not allege the cessation of payment of insurance
premiums by the Respondent for striking employees to be a
violation. However, the statement in the letter relating to impo-
sition of a requalification period threatens striking employees
with a changed working condition if they “continue to refuse to
return to work,” and that violates Section 8(a)(1) of the Act as
alleged in paragraph 12 of the complaint.
The Respondent, in its brief at footnote 28, observes that the
foregoing threat allegation refers to striking employees, imply-
ing an inconsistency with the discharge allegation. Striking
employees who are discharged maintain their status as strikers.
An employer that discharges strikers must offer them rein-
statement, after which their rights are determined on the basis
of their status as striking employees. There is no inconsistency.
The violation alleged in paragraphs 19 and 29 is the denial of
an accrued benefit by requiring returning strikers to requalify
for benefits. The Board, in Advertiser’s Mfg. Co., 294 NLRB
740 (1989), cites Texaco, Inc., 285 NLRB 241 (1987), in which
the Board explained that, under the analysis set out NLRB v.
Great Dane Trailers, 388 U.S. 26 (1967):

[T]he General Counsel bears the prima facie burden of prov-
ing at least some adverse effect of the benefit denial on em-
ployee rights. The General Counsel can meet this burden by
showing that (1) the benefit was accrued and (2) the benefit
was withheld on the apparent basis of a strike. . . . Once the
General Counsel makes a prima facie showing of at least
some adverse effect on employees’ rights, the burden under
Great Dane then shifts to the employer to come forward with
proof of a legitimate and substantial business justification for
its cessation of benefits. [Id. at 743.]

In Advertiser’s Mfg. Co., supra at 744, the respondent con-
ceded that, before correcting an error, employees had been
denied benefits because of the requalification period imposed.
The error did not constitute a business justification. Similarly,
the requalification period for life insurance benefits was applied
to strikers, but not to employees who did not strike. The Re-
spondent, although contending that its conduct “was justified
by a desire to avoid increased costs,” never contacted the insur-
ance carrier. The Bound found that the respondent in those
circumstances had not established a business justification, and
Section 8(a)(1) and (3) violations were found in both situations.
In the instant case, the requirement that the strikers must
requalify for the group health plan is predicated upon a break in
service for which the qualifying event, on the basis of purport-
edly erroneous input from the Respondent, was “Termination of
Employment.” Although the Respondent argues that the em-
ployees had not been terminated, that is what was communicat-
ed to the employees and that is what is reflected on the Sep-
tember 4 status report that the Respondent received. Insofar as
the reason for requalification was a break in service because of
the termination of the striking employees, it was predicated
upon an unlawful act. Even if I accept the Respondent’s claim
that “termination” was incorrect, the Respondent took no action
to correct or rectify that error. Thus, the requalification period
either was predicated upon an unlawful act, termination, or an
erroneous report that the Respondent took no action to correct.
In ether event, the Respondent has not established a legitimate
business justification for denial of the accrued benefit of eligi-
bility. By requiring striking employees to requalify for the
group health plan, the Respondent violated Section 8(a)(1) and
(3) of the Act.
The Respondent gave no notice to the Union with regard to
the requalification period. Health insurance eligibility is a
working condition. By unilaterally imposing the requalification
period without notice to the Union, the Respondent violated
Section 8(a)(5) of the Act.
Prior to returning to work employees Brigance and Stanfill
Wyman were required to meet with Onderlinde and Robbert
and sign a statement confirming that they “agree to follow all
company policies,” one of which was the absence of health
coverage for a period of 90 days which had specifically been
explained to them in their respective interviews. I find no vice
in an employer obtaining a written statement, similar to state-
ments confirming the giving of assurances under Johnnie’s
Poultry Co., 146 NLRB 770 (1964), that the returning employ-
ee has not been given any special incentives and is voluntarily
returning to work. The vice is not the signing of the Return to
work statement as such, but in its contents which required the
former striking employees to agree to company policies that
included a unilateral change in working conditions. By requir-
PRIDE CARE AMBULANCE 1041
ing the employees to agree to unilaterally changed working
conditions, the employer engaged in direct dealing in violation
of Section 8(a)(5) of the Act.
4. Assistance regarding decertification
Paragraph 16 of the complain alleges that Dan Robbert “ren-
dered assistance to employees in an effort to decertify the . . .
Union by providing money and transportation assistance to file
a decertification petition.” As discussed above, Robbert admits
permitting employee Tim Tyler to use his personal vehicle to
mail a document that he assumed was the decertification peti-
tion and gave him permission to use money from the overage
jar in order to pay the postage that Tyler was unwilling to pay
out of his own pocket. Although employers may render minis-
terial assistance with regard to decertification petitions, such as
providing the address and telephone number of Board offices, it
may not engage in overt conduct constituting assistance. In
Cummins Component Plant (Cardinal Systems), 259 NLRB
456, 461 (1981), cited by the General Counsel, the Board con-
demned paying for telephone communications and postage. The
cases cited by the Respondent relating to ministerial aid do not
involve the payment of money. On this record, given Tyler’s
unwillingness to pay to mail the petition, the petition would not
have been filed in the absence of Robbert’s permission to use
money from the overage jar and to use his vehicle and the gaso-
line thereby consumed to take the petition to be mailed. By
rendering assistance regarding decertification of the Union, the
Respondent violated Section 8(a)(1) of the Act.
5. Rules relating to confidentiality
The complaint, in paragraph 10, sets out three rules that al-
legedly restrict employees’ exercise of their Section 7 rights.
The Respondent has stipulated that it does maintain the rules
set out in the complaint and provides the entire rule set out in
subparagraph 10(c). The first rule, alleged in subparagraph
10(a), prohibits the “[g]iving out confidential information con-
cerning other employees, Company documents, customers or
patients.” The third, set out in subparagraph 10(c) states:

Salary, benefit, and other personal information relating to em-
ployees shall be treated as confidential. Personnel files, pay-
roll information, disciplinary matters and similar information
shall be maintained in a manner designed to ensure confiden-
tiality in accordance with applicable laws. Employees will ex-
ercise due care to prevent the release or sharing of information
beyond those persons who may need such information to ful-
fill their job function.

The General Counsel presented no evidence that the forego-
ing prohibitions relate to other than the proper maintenance and
control of proprietary information. Asheville School, 347 NLRB
877 (2006). I shall recommend that subparagraphs 10(a) and (c)
be dismissed.
Subparagraph 10(b) alleges a rule that provides that
“[c]ompensation is considered an individual and personal issue
between management and the employee and should not be dis-
cussed with anyone.” The foregoing prohibition upon employ-
ees discussing their own compensation, “an inherently concert-
ed activity,” violates Section 8(a)(1) of the Act. Asheville
School, supra at 880, citing Automatic Screw Products Co., 306
NLRB 1072 (1992).
CONCLUSIONS OF LAW
1. By discharging unit employees because they engaged in a
strike, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
(3) and Section 2(6) and (7) of the Act.
2. By discharging nonunit employee Pat Smith because she
made common cause with the striking employees, the Respond-
ent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the Act.
3. By threatening employees that if they did not return to
work they would be required to requalify for group health in-
surance, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
4. By requiring returning striking employees to requalify for
group health insurance, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
5. By bypassing the Union and dealing directly with striking
employees by requiring that they agree to the requalification
period for group health insurance prior to returning to work, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5) and
Section 2(6) and (7) of the Act.
6. By unilaterally, without notice to or bargaining with the
Union, changing the working conditions of striking unit em-
ployees by requiring that they requalify for group health insur-
ance, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act.
7. By rendering assistance to employees in an effort to decer-
tify the Union, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and (5) and Section 2(6) and (7) of the Act.
8. By maintaining a rule prohibiting discussion among em-
ployees of their wages, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having unlawfully discharged the striking
employees and Pat Smith, it must offer all them except Patricia
Brigance and Rebecca Stanfill Wyman reinstatement and must
make all of them whole for any loss of earnings and other bene-
fits, specifically including any loss incurred because of denial
of health care benefits due to the 90-day requalification period.4

4 The return of additional employees, noted in the brief of the Re-
spondent but not reflected in the record, can be addressed in the com-
pliance stage of this proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1042
Backpay shall be computed on a quarterly basis from August 1,
2007, with regard to all striking employees except Michelle
Cronk, and from August 2. 2007, with regard to Michelle
Cronk and Pat Smith to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent must rescind the rule prohibiting discussion
among employees of their wages.
The Respondent will also be ordered to post an appropriate
notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Pride Ambulance Company, d/b/a Pride
Care Ambulance, Care-A-Van, Kalamazoo, Michigan, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees represented by Local 7, Interna-
tional Brotherhood of Teamsters, because they engaged in a
strike.
(b) Discharging nonunit employees who make common
cause with the striking employees.
(c) Threatening striking employees that if they do not return
to work they will be required to requalify for group health in-
surance.
(d) Requiring returning striking employees to requalify for
group health insurance.
(e) Bypassing the Union and dealing directly with striking
employees by requiring that they agree to the requalification
period for group health insurance prior to returning to work.
(f) Unilaterally, without notice to or bargaining with the Un-
ion, changing the working conditions of striking unit employees
by requiring that they requalify for group health insurance. The
appropriate unit is:

All full-time and regular part-time drivers employed by the
Employer in its Care-A-Van Division, located in Kalamazoo,
Michigan, but excluding clerical employees, mechanics,
guards and supervisors as defined in the Act, and all other
employees.

(g) Rendering assistance to employees in an effort to decerti-
fy the Union.
(h) Maintaining a rule prohibiting discussion among employ-
ees of their wages.
(i) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer the fol-
lowing employees full reinstatement to their former jobs or, if

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed:

Dean Chestnut Rodney Packard
Bradley Cosgrove Robert Schellenberg
Michele Cronk Ron Smeltzer
Michele Holderman Pat Smith
Ron Howard Cory Snyder
Ernie Kreitlow Rolland Wessell

(b) Make the following employees whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them, in the manner set forth in the remedy sec-
tion of the decision.

Patricia Brigance Rodney Packard
Dean Chestnut Robert Schellenberg
Bradley Cosgrove Ron Smeltzer
Michele Cronk Pat Smith
Michele Holderman Cory Snyder
Ron Howard Rebecca Stanfill Wyman
Ernie Kreitlow Rolland Wessell

(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges of the forego-
ing named employees and within 3 days thereafter notify the
employees in writing that this has been done and that the dis-
charges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Rescind the rule prohibiting discussion among employees
of their wages.
(f) Within 14 days after service by the Region, post at its
Cork Street facility in Kalamazoo, Michigan, copies of the
attached notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily 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 Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-

6 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment opf the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
PRIDE CARE AMBULANCE 1043
ployees and former employees employed by the Respondent at
any time since August 1, 2007.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

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

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT discharge any of you who are represented by
Local 7, International Brotherhood of Teamsters, because you
engage in a strike.
WE WILL NOT discharge any of you who are not in the unit
because you make common cause with striking employees.
WE WILL NOT threaten striking employees that if they do not
return to work they will be required to requalify for group
health insurance.
WE WILL NOT require that returning striking employees
requalify for group health insurance.
WE WILL NOT bypass the Union and deal directly with you by
requiring that you agree to a requalification period for group
health insurance prior to returning to work.
WE WILL NOT, without notice to or bargaining with the Un-
ion, change the working conditions of striking unit employees
by requiring that they requalify for group health insurance. The
appropriate unit is:

All full-time and regular part-time drives employer by us in its
Care-A-Van Division, located in Kalamazoo, Michigan, but
excluding clerical employees, mechanics, guards and supervi-
sors as defined in the Act, and all other employees.

WE WILL NOT render assistance to employees in an effort to
decertify the Union.
WE WILL NOT maintain a rule prohibiting discussion among
employees of their wages and WE WILL rescind that rule.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, offer the fol-
lowing employees full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed:

Dean Chestnut Rodney Packard
Bradley Cosgrove Robert Schellenberg
Michele Cronk Ron Smeltzer
Michele Holderman Pat Smith
Ron Howard Cory Snyder
Ernie Kreitlow Rolland Wessell

WE WILL make the following employees whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the remedy
section of the decision.

Patricia Brigance Rodney Packard
Dean Chestnut Robert Schellenberg
Bradley Cosgrove Ron Smeltzer
Michele Cronk Pat Smith
Michele Holderman Cory Snyder
Ron Howard Rebecca Stanfill Wyman
Ernie Kreitlow Rolland Wessell

WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to the unlawful discharges of the forego-
ing named employees and within 3 days thereafter notify the
employees in writing that this has been done and that the dis-
charges will not be used against them in any way.

PRIDE AMBULANCE COMPANY, D/B/A PRIDE CARE
AMBULANCE, CARE-A-VAN

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