26-CA-021587 (N.L.R.B. Aug. 26, 2004)

Yellow Ambulance Service

National Labor Relations Board - Administrative Judge OpinionsAug 26, 2004

26-CA-021587 (N.L.R.B. Aug. 26, 2004)

JD–82–04 Hopkinsville, KY UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES YELLOW ENTERPRISE SYSTEMS, LLC d/b/a YELLOW AMBULANCE SERVICE and Case 26–CA–21587 INTERNATIONAL ASSOCIATION OF EMTs and PARAMEDICS, NAGE/SEIU, AFL-CIO Michael W. Jeannette, Esq., for the General Counsel Matt Levy, Representative, for the Charging Party Barbara J. Moss, Esq., for the Respondent DECISION STATEMENT OF THE CASE Jane Vandeventer, Administrative Law Judge. This case was tried on July 26 and 27, 2004, in Nashville, Tennessee. After hearing oral arguments by counsel, I issued a Bench Decision on July 27, 2004, pursuant to Section 102.35(a)(10) of the National Labor Relations Board’s Rules and Regulations setting forth findings of fact and conclusions of law. I certify the accuracy of the portion of the transcript, as corrected,1 pages 212 to 234, containing my Bench Decision, and I attach a copy of that portion of the transcript, as corrected, as Appendix A. Attached as Appendix C is the Notice referred to in the Order portion of the Bench Decision. If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order2 shall, as provided in 1 I have corrected the transcript containing my Bench Decision, and the corrections are reflected in the attached Appendix B. 2 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 of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” JD–82–04 5 10 15 20 25 30 35 40 45 50 2 Section 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. Dated, Washington, D.C., August 26, 2004. ____________________ Jane Vandeventer Administrative Law Judge JD–82–04 Hopkinsville, KY APPENDIX C 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 notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities WE WILL NOT imply that your union activities are being watched or that you are a bad employee because of those activities WE WILL NOT threaten you with reduced benefits if you select a union to represent you. WE WILL NOT threaten you with loss of jobs if you select a union to represent you. WE WILL NOT solicit grievances and promise to remedy them if you do not select a union to represent you. WE WILL NOT discharge you because of your union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the Act. WE WILL reinstate Dennis Creamer to his former job, and WE WILL make him whole for any loss of pay or other benefits he may have suffered because of our unlawful discharge of him. JD–82–04 Hopkinsville, KY WE WILL remove from our files any reference to the unlawful discharge of Dennis Creamer, and notify him in writing that this has been done and that the discharge will not be used against him in any way. YELLOW ENTERPRISE SYSTEMS, LLC d/b/a YELLOW AMBULANCE SERVICE (Employer) Dated By (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 1407 Union Avenue, Mid-Memphis Tower Building, Suite 800, Memphis, TN 38104-3627 (901) 544-0018, Hours: 8 a.m. to 4:30 p.m. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (901) 544-0011. JD–82–04 Hopkinsville, KY APPENDIX B Page and Correct To Line(s) 212:1 Delete “headings.” 212:3 employee an employee 212:5 employee an employee 212:7 increase, increased 212:10 Complaint The complaint 212:17 testifying testifying, 212:20 FINDING FINDINGS 213:12 I. Background 1. Background 213:18 000 2000 214:3 20003 2003 214:22 marred married 215:7 employee employee, 215:8 Creamer’s Creamers 216:8 liter later 217:25 bee been 218:3 is was 218:4 III. 2. 218:13 “”bad rumors”” “bad rumors” 218:15 here here, 219:12 employee’s employees’ JD–82–04 5 10 15 20 25 30 35 40 45 50 6 Page and Correct To Line(s) 219:19 testimony, he testimony. He 219:25 And both Tapp and Creamer’s Tapp and both Creamers 220:3 IV. 3. 221:8 him them 222:13 Delete “4.” 22:14 Evidence 4. Evidence 223:2 tot to 223:8 Delete “1.” 223:9 Section 1. Section 224:12 Upon Under 224:20 Houses House 224:21 V. 2. 225:2 activities. That activities, that 225:22 inaction in inaction and 225:24 change mind change his mind 226: 4 in which and which 226:7 timing events timing of events 226:19 employee’s employees’ 226:23 the that the fact that 226:23 Fox, Fox 227:6 The decision The discharge decision 227:8 Wilhelm, the decision to discharge that is. Wilhelm. JD–82–04 5 10 15 20 25 30 35 40 45 50 7 Page and Correct To Line(s) 227:20 anything. anything 227:21 And and 228:7 VI. 3. 228:8 assets asserts 228:16 above above, 229:2 have had 229:3 counteracted countermanded 229:4 record regard 230:9 Unless Unlike 233:6 matter manner 233:12 anyway. any way. 233:23 attach the attach to the 234:10 it’s its 234:12 15th 15, JD–82–04 Hopkinsville, KY APPENDIX A 212 1 This case was tried on July 26th and 27th 2004 in 2 Nashville Tennessee. The complaint alleges Respondent 3 violated Section 8(a)(1) of the Act by implying to an employee 4 that his union activities were under surveillance, threatening 5 an employee with loss of privileges if the employees chose a 6 union to represent them, solicited employee grievances, and 7 promised an employee increased benefits, and improved 8 conditions of employment if employees did not chose a union to 9 represent them. 10 The complaint also alleges Respondent violated Section 11 8(a)(1) and (3) of the Act by discharging an employee. The 12 Respondent filed an answer denying the essential allegations 13 in the complaint. After the conclusion of the evidence 14 presentation the parties made oral arguments, which I have 15 considered. 16 Based on the testimony of the witnesses, including 17 particularly my observation of their demeanor while testifying, 18 the documentary evidence and entire record, I make the 19 following findings: 20 FINDINGS OF FACT 21 I. JURISDICTION. 22 Respondent is a limited liability company with an 23 office and place of business in Hopkinsville, Kentucky, where 24 it is engaged in the provision of ambulance service and 25 convalescent transportation services to citizens of Kentucky JD–82–04 5 10 15 20 25 30 35 40 45 50 9 213 1 and Southern Indiana. 2 During a representative one-year period, Respondent 3 derived gross revenues in excess of $500,000, and purchased 4 and received at its Hopkinsville Kentucky facility, goods 5 values in excess of $50,000 directly from points outside the 6 Commonwealth of Kentucky. Accordingly, I find, as Respondent 7 admits, that it is an employer engaged in commerce within the 8 meaning of Section 2(2), (6), and (7) of the Act. 9 The Charging Party (the Union) is a labor organization 10 within the meaning of Section 2(5) of the Act. 11 II. UNFAIR LABOR PRACTICES 12 A. The Facts 1. Background 13 In addition to the Hopkinsville operation, Respondent 14 has a larger ambulance operation in Owensboro, Kentucky. 15 Employees at the Owensboro facility are represented by a 16 union. An administrative law judge issued a decision in a 17 previous case involving the Owensboro facility (JD26-00, 18 February 25th, 2000). That case is currently pending before 19 the Board. Sherman Hockenbury, who is currently Respondent's 20 Vice-President and Executive Director of Emergency Service, 21 has an office in Louisville, but visits the Hopkinsville 22 office approximately weekly. The director of the Hopkinsville 23 facility, Jackie Fox, reports to Hockenbury. 24 Fox became director at the Hopkinsville facility on 25 November 4th 2003. Prior to that, he had worked for JD–82–04 5 10 15 20 25 30 35 40 45 50 10 214 1 Respondent for about four months at the Owensboro facility, 2 where his job was assistant director. The previous director 3 at Hopkinsville was Phil Cundall, until About September 2003. 4 All dates hereafter will be 2003 and all events concern the 5 Hopkinsville facility unless specifically stated otherwise. 6 Hitomi Wilhelm had been the assistant director at 7 Hopkinsville since July 2002, and in the period between 8 Cundall's departure and the arrival of Fox, had acted as 9 director. It is undisputed that on December 12th Fox removed 10 Wilhelm from her supervisory position, and demoted her to the 11 position of paramedic. Respondent admits Wilhelm was a 12 supervisor until her demotion. 13 Respondent staged a Christmas party for employees on 14 December 5th. Prior to the party, employees were asked to 15 vote on "employee of the year" in several categories. The 16 ballots for these awards were kept in the dispatch office, as 17 was a shoebox sized cardboard box with a slit in the top where 18 employees placed their completed ballots. The dispatch office 19 was not customarily locked, nor was there invariably an 20 employee present there. 21 Employee Dennis Creamer, an EMT (Emergency Medical 22 Technician), was married to a dispatcher, Wanda Creamer. As he 23 worked primarily dayshift, and she worked a shift beginning at 24 4 in the afternoon, they often met for dinner together at the 25 break area in the outdoor vehicle bay, called in testimony the 215 JD–82–04 5 10 15 20 25 30 35 40 45 50 11 1 "smoker's table." Before the Christmas party, during the 2 voting period for employee awards, Wanda had told Dennis that 3 the slit on the ballot box had grown wider, as if someone had 4 put a hand inside the box. Dennis checked on the box and 5 found this was so. He then put his hand into the box, and 6 looked at the ballots, finding not only his own, but that of 7 another employee, missing. 8 On December 3rd, the Creamers were eating dinner 9 together at the table in the bay. Dennis wanted to tighten a 10 mirror on the vehicle he had been using that day, as it was 11 loose. He went to get the toolbox employees customarily used. 12 Former Director Cundall had kept the toolbox in his office. 13 Three current employees, and Dennis Creamer all testified 14 credibly that Cundall had at various times told employees that 15 on the nightshift when he was not at the facility, he did not 16 want to be disturbed at home, and if they needed anything from 17 his office they were to open his office door by sliding a 18 plastic timecard between the door and the jamb. The three 19 current employees are Wanda Creamer, Kristopher Tapp, and 20 Hitomi Wilhelm. Their testimony was not contradicted, and is 21 otherwise worthy of credit. 22 On December 3rd, Dennis Creamer testified that he went 23 to the director's office, opened the door, and saw that the 24 tools were not in their usual place. He closed the door and 25 left. Dennis still wanted to fix the mirror for the next 216 JD–82–04 5 10 15 20 25 30 35 40 45 50 12 1 shift, so he went to his own house, got his own tools, and 2 fixed the mirror on Respondent's vehicle. Fox testified that 3 he had moved the toolbox out to the cage area, a fenced area, 4 in the vehicle bay the day after he first assume his new 5 position at Hopkinsville. He admitted, however, that he did 6 not communicate this fact to the employees, either by an oral 7 announcement or by a written memorandum. 8 A little later that evening, Dennis saw then-Assistant 9 Director Wilhelm. According to Wilhelm's testimony, she was 10 in the director's office working on payroll, which was one of 11 her usual duties. Dennis told Wilhelm that some of the 12 ballots had never been counted. She responded with an 13 explanation of how she and Fox had tallied the ballots, and 14 offered to check the ballots and the tallies. She opened a 15 drawer of the desk to look for them, and testified that Dennis 16 reached to open a different drawer. Dennis also testified 17 that he reached to open a drawer. The two accounts differ as 18 to which drawer Dennis opened, but this difference is 19 immaterial. Both witnesses agree that neither the tally nor 20 the ballots were in either drawer, and Wilhelm stated that 21 they must have been moved or destroyed by Fox. From Wilhelm's 22 testimony, it is clear that all Dennis did in the office was 23 open a drawer so that Wilhelm, a supervisor, and he could look 24 for the ballots and tally. 25 I am mindful that the written statement Wilhelm gave to 217 JD–82–04 5 10 15 20 25 30 35 40 45 50 13 1 Respondent at a later date contains the sentence, "In order to 2 ascertain the discrepancy he entered the Director's office and 3 located the final tally sheet and the counted votes." 4 Wilhelm, in her testimony, explained that this was an 5 assumption on her part because of the fact that Dennis reached 6 toward a drawer. She testified that Dennis had not told her 7 he had come into the director's office earlier to look for the 8 ballots. In fact, his testimony makes clear that he looked at 9 the ballots in the dispatch office, not in the director's 10 office. I credit Dennis Creamer and Wilhelm's testimony at 11 trial, and find that his is what occurred. The implication 12 which Fox apparently drew from Wilhelm's written statement 13 that Dennis had entered his office and looked in the desk by 14 himself prior to his conversation with Wilhelm about the 15 ballots, was an incorrect assumption on Fox's part. 16 Wilhelm testified that she mentioned Dennis Creamer's 17 concern with the accuracy of the ballot count to Fox within a 18 day or two of the incident, and that she did so before the 19 Christmas party on December 5th. At that time she told Fox 20 that she and Dennis had looked for the ballots in Fox's 21 office. Since the award plaques had already been ordered, 22 nothing was done about it. Fox, however, states that it was 23 not until December 14th or 15th, while they were lunching 24 together, that Wilhelm told him about the incident. I credit 25 Wilhelm on this point. By December 14th, she had been demoted 218 1 by Fox, and according to Fox, had several arguments with him. JD–82–04 5 10 15 20 25 30 35 40 45 50 14 2 In addition, by 10 days after the awards had been given out, 3 there was little point in bringing up the subject. 4 2. Allegations of Section 8(a)(1) Violations 5 In about mid-December, employee Kris Tapp contacted an 6 employee in the Owensboro facility to inquire about who to 7 contact concerning getting a union to represent the employees. 8 Fox admitted that about mid-December he was informed by a 9 personnel assistant in the Owensboro facility that 10 Hopkinsville employees had been asking about contacting a 11 union. According to the testimony of Tapp, within a few days 12 of his call to Owensboro, Fox spoke to him in the hallway and 13 said that he had heard, "bad rumors" about Tapp. When Tapp 14 asked who was spreading rumors, and that he would like to set 15 them straight, Fox told him it wasn't here, it was in 16 Owensboro. Fox admitted telling Tapp that he had heard "bad 17 rumors" about him. 18 Tapp received authorization cards, brochures, and other 19 union literature about union activity on about December 19th, 20 and passed them out to other employees. He and his partner, 21 Ronnie Browning, talked to nightshift employees, and Dennis 22 Creamer, who worked the dayshift, talked to dayshift 23 employees. Both Tapp and Dennis Creamer left union literature 24 in their company mailboxes, open pigeon holes approximately 9 25 inches wide by 3 or 4 inches high, which were located in the 219 1 hallway of Respondent's facility. JD–82–04 5 10 15 20 25 30 35 40 45 50 15 2 On December 19th, Fox called Tapp into his office and 3 closed the door. Fox asked Tapp if he enjoyed his job, if he 4 enjoyed access to the kitchen, if he enjoyed being stationed 5 at the facility instead of on the street, if he enjoyed 6 parking his vehicle in the bay at night, if he enjoyed the 7 television at the facility, and if he enjoyed being able to 8 wash his personal vehicle at Respondent's facility. Tapp gave 9 answers between each question. Then Fox told Tapp that if 10 something bad happens here, like it did in Owensboro, all this 11 will be gone. Fox then asked Tapp if he had complaints. When 12 Tapp mentioned cuts in employees’ hours, Fox told him that 13 wasn't a legitimate complaint. Fox asked if Tapp had any 14 suggestions. Then Tapp said he thought they needed a crew 15 meeting, but Fox said there was no need for that as employees 16 could come to him individually. 17 Fox admitted that he had met with Tapp and asked him 18 many of the questions to which Tapp testified. I credit 19 Tapp's testimony. He is a current employee of Respondent, and 20 he testified clearly and coherently. On December 23rd, 21 several employees signed authorization cards for the Charging 22 Party Union. It is undisputed that Tapp, both Creamers, and 23 other employees signed cards and Tapp and Dennis Creamer asked 24 other employees to sign cards while at Respondent's 25 Hopkinsville facility. Tapp and both Creamers testified 220 1 that union literature was visible in Tapp's and Dennis 2 Creamer's mailboxes in the facility. JD–82–04 5 10 15 20 25 30 35 40 45 50 16 3 3. Allegation of Section 8(a)(3) Violation 4 Dennis Creamer was discharged on December 30th by Fox. 5 The reason given by Fox was that Dennis had entered the 6 director's office and gone through the desk drawers at 7 sometime "prior to December 1st." It is undisputed that 8 Dennis had never been approached by Fox about this incident 9 before December 30th. Fox testified that he was not told 10 about the incident until December 14th or 15th, and that he 11 asked Wilhelm on December 17th for a written account of her 12 meeting with Dennis Creamer. He also stated that he 13 inventoried his office and found nothing missing. 14 Wilhelm testified that Fox did not ask her for a 15 statement until December 24th. I have already found out Fox 16 was informed about the incident before December 5th. I 17 further find that he did not ask Wilhelm for a written 18 statement until December 24th. I credit Wilhelm as she is a 19 current employee, and her testimony was overall more plausible 20 than that of Fox, who contradicted himself on numerous points 21 during his testimony. 22 As to Fox's inventory of his office, I find that there 23 is no proof of the timing of the inventory, and I discredit 24 Fox on the date that he performed the inventory, namely 25 December 15th. Fox told Wilhelm, after she gave him her 221 1 December 24th statement, that it was too vague. On December 2 27th or 28th, Fox discussed Wilhelm's statement with JD–82–04 5 10 15 20 25 30 35 40 45 50 17 3 Hockenbury. Fox admitted that he told Hockenbury that he 4 wanted to discharge Dennis Creamer, that Hockenbury agreed 5 with him, and that the decision was made at that time to 6 discharge Dennis. 7 On December 29th, Fox approached some employees, told 8 them he had locked his keys in his office and asked if anyone 9 could help him. Dennis volunteered and opened the office door 10 with a plastic timecard. Either Dennis or Fox remarked at 11 that time that anyone could open the locked door. The 12 following day, December 30th, Fox called Dennis into his 13 office. At Dennis' request, Steve Stobaugh also attended. 14 According to Dennis' testimony, Fox asked Dennis if he had 15 come into his office. Fox asked, "Did you come to look for 16 ballots of any kind or for any kind of union stuff?" In 17 reply, Dennis denied rummaging in the desk, but stated that he 18 had come into the office to look for tools. At this point Fox 19 discharged Dennis, stating that "breaking into my office" was 20 a serious offense. 21 In his written memorandum of the discharge interview, 22 Fox added that it was "criminal." Dennis stated to Fox that 23 other employees went into the director's office in the same 24 way he had, using a plastic timecard. Fox denied knowledge of 25 that fact to Dennis, although at the hearing he testified that 222 1 he knew about the practice by mid-December. Dennis asked Fox 2 what about employees using the company credit card to buy gas JD–82–04 5 10 15 20 25 30 35 40 45 50 18 3 for their personal vehicles, and gave employee Jason Ezell as 4 an example. Fox stated he would investigate that. The 5 interview ended. There was no evidence that Fox ever 6 investigated Jason Ezell's use of Respondent's credit card. 7 Fox's testimony concerning the discharge interview largely 8 parallels Dennis Creamer's, but is not as detailed. Fox did 9 not specifically deny Dennis' testimony concerning Fox's 10 asking him if he came into the office to look for ballots or 11 "any kind of union stuff." I credit Dennis Creamer's 12 testimony that Fox did, in fact, ask him if he had come into 13 the office to look for ballots or any kind of union stuff. 14 4. Evidence Relating to Disparity 15 Subsequent to the discharge of Dennis Creamer, the 16 union filed a petition for an election. An election was held 17 in March 2004, which the union lost. 18 Evidence regarding two instances of discipline of other 19 employees was introduced. In May 2004, employee Kenny Graves 20 was given a verbal warning for angrily telling Fox that if he 21 had been present when the last schedule was made out, he would 22 have knocked Fox's teeth out. In June of 2004, employee Tammy 23 Tucker (formerly wife of Jason Ezell) was believed by Fox to 24 have used Respondent's gasoline credit card for several 25 personal purchases she made while on vacation in Maryland. 223 1 Tucker was given a final warning and demoted, but was not 2 discharged, according to Fox because she denied the 3 infraction and Respondent did not have "100 percent proof." JD–82–04 5 10 15 20 25 30 35 40 45 50 19 4 Fox testified that the decision to discharge Tucker was 5 tentative pending an interview with her to secure her side of 6 the story. Evidence was presented that Gray supported the 7 union openly, and that Tucker openly opposed it. 8 B. Discussion and Analysis 9 1. Section 8(a)(1) allegations: 10 I find that Fox's statement to Tapp that he had heard 11 "bad rumors" about Tapp from someone in the Owensboro facility 12 did reasonably convey an impression of surveillance of his 13 union activities. He had recently contacted a person in that 14 facility to ask about contacting a union, so Fox's remarked 15 about "bad rumors" would logically be understood to refer to 16 that contact. At the time Tapp had not manifested his support 17 for the union openly. Respondent violated Section 8(a)(1) by 18 this conduct. Flexsteel Industries, 311 NRLB 257 (1993). 19 Furthermore, Fox's one-on-one meeting with Tapp in a 20 management office constituted coercive conduct violative of 21 Section 8(a)(1). Fox began with a litany of the privileges 22 enjoyed by employees at Hopkinsville, and then remarked that 23 if anything bad happened, like at Owensboro, "it would all be 24 gone." Fox's remark was a clear reference to the fact that 25 employees at Owensboro had selected a union to represent them. JD–82–04 5 10 15 20 25 30 35 40 45 50 20 224 1 It would be difficult to interpret it in any other way. In 2 addition, Fox first asked Tapp if he liked his job. This too, 3 would be "gone" if employees selected a union. I find that 4 Respondent threatened Tapp with reduced privileges as well as 5 with discharge if employees selected a union to represent them. 6 Finally, I find that Fox did solicit grievances from 7 Tapp in the same meeting by asking him if he had any 8 complaints and any suggestions. There was no indication, 9 beyond the mere asking of those two questions, that Fox was 10 implying Respondent might do anything to remedy the 11 grievances. Fox rejected out of hand both of Tapp's responses 12 to his questions. Under Board law, however, the very fact that 13 an employer's solicitation of grievances is timed immediately 14 upon its learning of employee union activity implies that the 15 employer is willing to remedy the grievances. Here the 16 solicitation of grievances did follow quickly upon the heels 17 of Respondent's learning of union activity among the 18 employees. I find, therefore, that it does imply the possible 19 remediation of grievances, and it violates Section 8(a)(1) of 20 the Act. Yoshi's Japanese Restaurant & Jazz Houses, 330 NLRB 21 1339, 1343 (2000); Columbus Mills, 303 NLRB 223, 227 (1991). 22 V. Discharge of Dennis Creamer 23 It is well established that in order to demonstrate a 24 prima facie case of unlawful discharge, the General Counsel 25 must show that an employee engaged in union or protected 225 JD–82–04 5 10 15 20 25 30 35 40 45 50 21 1 concerted activities, that the employer knew of those 2 activities, that the employer had some animus against the 3 activities in question, that the employer discharged the 4 employee, or otherwise discriminated against him, and that 5 there was a connection between the employer's animus and its 6 taking action against the employee. In order successfully to 7 rebut a prima facie case, an employer must show that it would 8 have taken the same action against the employee in the absence 9 of any protected activities on the part of the employee. 10 Wright-Line, 251 NLRB 1083 (1980), enforced 662 F2d. 899 (1st 11 Circuit 1981) cert. denied, 455 U.S. 989 (1982. 12 Dennis Creamer's union activities are not in dispute. 13 Respondent admits that he engaged in union activities. 14 Respondent, however, denies that Respondent had knowledge of 15 those activities. Respondent admits that by mid-December Fox 16 had been informed of some union activity at Hopkinsville, but 17 denies that Fox knew Dennis was involved until after his 18 discharge. The evidence does not support Respondent's claim. 19 Fox's question to Dennis at the discharge interview, whether 20 he was looking for "any kind of union stuff" in the office, 21 shows that Fox believed Dennis to be involved in union 22 activities. In addition, Fox's initial inaction and 23 late-December action regarding the December 3rd incident is 24 some indication that something made Fox change his mind about how 25 to treat the December 3rd incident. 226 JD–82–04 5 10 15 20 25 30 35 40 45 50 22 1 Several employees signed union cards on December 23rd, 2 and on December 24th Fox took the first step in building a 3 case against Dennis for the incident which had occurred three 4 weeks earlier and which he had ignored up until that time. An 5 employee who had been approached to sign a card may have 6 informed Fox that cards were being solicited, and by whom. It 7 is a valid inference from the timing of events that the catalyst 8 for Fox's about-face was learning that Dennis was involved in 9 the union activity. I find that it was. 10 Respondent's animus against the employee's union 11 activity is amply demonstrated by the several violations of 12 Section 8(a)(1) directed at employee Tapp. I find it 13 unnecessary to rely on the Respondent's opposition to the 14 union during the ensuing election campaign. Evidence of 15 Respondent's animus again employee's union activity which 16 occurred in 1999 at Owensboro is noted, but it is not 17 specifically relied upon in finding animus here. The record 18 herein supports a finding that Respondent harbored animus 19 against employees’ union activities. 20 Respondent contends that the evidence does not show a 21 nexus, or connection, between the first three factors and the 22 discharge of Dennis Creamer. This contention is not supported 23 by the record. First, the fact that Respondent's Director Fox 24 asked Dennis during the discharge interview about "any kind of 25 union stuff" shows that there was a connection. Further, the 227 JD–82–04 5 10 15 20 25 30 35 40 45 50 23 1 timing of Fox's actions in building a case for discharge of 2 Dennis is strongly indicative of a connection between Dennis' 3 union activities and Respondent's decision to discharge him. 4 The securing of a statement from Hitomi Wilhelm was 5 undertaken on the day after employees first signed 6 authorization cards. The discharge decision was made on practically the 7 next available business day after Fox had secured the 8 statement from Wilhelm. In 9 addition, the lack of any real investigation, especially of 10 soliciting any information from Dennis Creamer himself, prior 11 to making the decision to discharge him, shows that 12 Respondent's supposed investigation was only a sham. Had Fox 13 talked with employees about the common practice of entering 14 the director's office with a timecard, he would have learned 15 that he would have had to discipline numerous employees for 16 the same conduct. Had Fox talked with Wilhelm about what 17 actually happened on December 3rd, he would have learned that 18 Dennis Creamer was in Wilhelm's presence, i.e., in the 19 presence of a supervisor, at all times during the meeting, and 20 therefore did not have any unauthorized access to anything 21 and that she only assumed that Dennis had come into the 22 office previously to look at the award ballots. In fact, had 23 he read Wilhelm's statement carefully, he would have learned 24 that she was in the office doing payroll the whole time Dennis 25 talked with her that night. Had Fox talked with Dennis 228 JD–82–04 5 10 15 20 25 30 35 40 45 50 24 1 Creamer himself, he could have learned all these things. In 2 fact, he did none of these things in his alleged 3 investigation. There was no real investigation by Respondent, 4 only a few motions aimed at discharging Dennis Creamer. I 5 find that the evidence supports a finding that the General 6 Counsel has presented a prima facie case. 7 3. Respondent's Defense 8 Respondent asserts that it would have discharged Dennis 9 Creamer with or without union activity because of Respondent's 10 policy which calls for discharge of any employee who gained 11 unauthorized access to its computer and other confidential 12 records. Neither Fox nor Hockenbury testified about any 13 evidence, mention of, or even suspicion concerning computer 14 access at the time of the decision to discharge Dennis 15 Creamer. Fox did not mention this policy or the handbook to 16 Dennis during the discharge interview. As stated above, a 17 supervisor was present during Dennis Creamer's presence in the 18 director's office near the desk. 19 I find that this asserted reason is entirely without 20 basis in the evidence. Other factors militate against 21 Respondent's defense, including Respondent's failure to 22 investigate, failure to allow the employee to speak to the 23 accusation, long delay in taking any action, and 24 mischaracterization of the alleged conduct of the employee. 25 Fox's memorandum called the entry of his office 229 JD–82–04 5 10 15 20 25 30 35 40 45 50 25 1 "criminal." Considering that Fox knew at the time that many 2 employees hde been doing the same thing for months or years, 3 and that he had never countermanded Cundall's practice in this 4 regard, this statement is an exaggeration and mischaracterizes 5 the conduct. A Respondent's exaggeration of the seriousness 6 of an incident is one factor which has been relied upon by the 7 Board to show that the incident is not the real reason for the 8 discharge of an employee. See, for example, 299 Lincoln 9 Street, 292 NLRB 172, 202 (1988). 10 In that case, as in this one, the Respondent not only 11 exaggerated the seriousness of the incident which it by then 12 knew many employees had engaged in, it also acted 13 inconsistently with a belief that any immediate threat of harm 14 existed. Here, Respondent acted inconsistently with its 15 asserted belief in the seriousness of the conduct by, for 16 example, not issuing instructions to employees not to enter 17 the director's office, by not changing the lock, and by not 18 contacting the police about the allegedly criminal act. 19 Disparity in the treatment of other cases of employee 20 discipline may show that a Respondent's asserted reason for 21 the discharge is not the real reason. Here, Respondent did 22 not discharge employee Tucker, who it believed had actually 23 stolen money from Respondent by using Respondent's gasoline 24 credit card. Dennis Creamer, who admittedly neither stole 25 anything, nor engaged in conduct different from that of other JD–82–04 5 10 15 20 25 30 35 40 45 50 26 230 1 employees who commonly entered the director's office by means 2 of a timecard, was discharged. There is also disparity in the 3 procedure used by Respondent in each case. Dennis Creamer was 4 given no opportunity to tell his side of the story before it 5 was decided to discharge him. The opposite occurred in 6 Tucker's case. The decision to discharge her was put on hold 7 until her side of the story could be obtained. In Dennis 8 Creamer's discharge interview he denied rifling through the 9 director's desk. He was still discharged. Unlike Dennis, 10 whose denial of the conduct was ignored, Tucker's denial of 11 the misuse of a gasoline credit card and stealing from the 12 company, was seen as requiring her continued employment, and 13 preventing the Respondent from discharging her. 14 This glaring disparity in the treatment of the employee 15 misconduct shows clearly that Respondent would most definitely 16 not have discharged Dennis Creamer in the absence of his union 17 support. See, for example, Hospital San Pablo, 327 NLRB 300 18 (1998); American Crane Corp. 326 NLRB 1401, 1413 (1998); 19 Weather Shield of Connecticut, 300 NLRB 93, 96 (1990). I find 20 that Respondent's discharge of Dennis Creamer violated Section 21 8(a)(3) of the Act. 22 CONCLUSIONS OF LAW 23 1. By implying to employees that their union 24 activities are under surveillance and that they are bad 25 employees because of those activities Respondent has violated 231 JD–82–04 5 10 15 20 25 30 35 40 45 50 27 1 Section 8(a)(1) of the Act. 2 2. By threatening employees with loss of privileges 3 and jobs if employees choose a union to represent them, 4 Respondent has violated Section 8(a)(1) of the Act. 5 3. By soliciting employee complaints and grievances, 6 and implying promises of remedies if employees do not choose a 7 union to represent them, Respondent has violated Section 8 8(a)(1) of the Act. 9 4. By discharging an employee because of his union 10 support and activities, Respondent has violated Section 11 8(a)(1) and (3) of the Act. 12 5. The violations set forth above are unfair labor 13 practices affecting commerce within the meaning of the Act. 14 THE REMEDY 15 Having found that Respondent has engaged in certain 16 unfair labor practices, I shall recommend that it be required 17 to cease and desist there from and to take certain affirmative 18 action necessary to effectuate the policies of the Act. 19 I shall also recommend that Respondent be ordered to 20 remove from the employment records of Dennis Creamer any 21 notations relating to the unlawful action taken against him 22 and to make him whole for any loss of earnings or benefits he 23 may have suffered due to the unlawful action taken against 24 him, in accordance with F.W. Woolworth Co., 90 NLRB 289 25 (1950), plus interest as computed in accordance with New 232 JD–82–04 5 10 15 20 25 30 35 40 45 50 28 1 Horizons for the Retarded, 283 NLRB 1173 (1987). 2 On these findings of fact and conclusions of law and on 3 the entire record, I issue the following recommended 4 ORDER 5 The Respondent, Yellow Enterprise Systems, LLC d/b/a 6 Yellow Ambulance Service, its officers, agents, successors, 7 and assigns, shall 8 1. Cease and desist from 9 (a) Implying to employees that their union activities 10 are under surveillance and that they are bad employees because 11 of those activities. 12 (b) Threatening employees with loss of privileges and 13 jobs if employees choose a union to represent them. 14 (c) Soliciting employee complaints and grievances, and 15 implying promises of remedy if employees do not choose a union 16 to represent them. 17 (d) Discharging employees because of their union 18 support and activities. 19 (e) In any like or related manner interfering with, 20 restraining, or coercing employees in the exercise of rights 21 guaranteed them by Section 7 of the Act. 22 2. Take the following affirmative action necessary to 23 effectuate the policies of the Act. 24 (a) Within 14 days from the date of this Order, offer 25 Dennis Creamer full reinstatement to his former job or if that JD–82–04 5 10 15 20 25 30 35 40 45 50 29 233 1 job no longer exists, to a substantially equivalent position, 2 without prejudice to his seniority or any other rights or 3 privileges previously enjoyed. 4 (b) Make Dennis Creamer whole for any loss of earnings 5 and other benefits suffered as a result of the discrimination 6 against him in the manner set forth in the remedy section of 7 this decision. 8 (c) Within 14 days from the date of this Order, remove 9 from its files any reference to the unlawful discharge, and 10 within 3 days thereafter notify the employee in writing that 11 this has been done and that the discharge will not be used 12 against him in any way. 13 (d) Preserve and, within 14 days of a request, or such 14 additional time as the Regional Director may allow for good 15 cause shown, provide at a reasonable place designated by the 16 Board or its agents, all payroll records, social security 17 payment records, timecards, personnel record and reports, and 18 all other records including an electronic copy of such records 19 if stored in electronic form, necessary to analyze the amount 20 of back pay due under the terms of this Order. 21 (e) Within 14 days after service by the Region, post 22 at its Hopkinsville Kentucky location, copies of a notice 23 marked "Appendix", which I will attach to the written version of 24 this decision. Copies of the notice on forms provided by the 25 Regional Director for Region 26, after being signed by the JD–82–04 5 10 15 20 25 30 35 40 45 50 30 234 1 Respondent's authorized representative, shall be posted by the 2 Respondent and maintained for 60 consecutive days in 3 conspicuous places including all places where notices to 4 employees are customarily posted. Reasonable steps shall be 5 taken by the Respondent to ensure that the notices are not 6 altered, defaced, or covered by any other material. In the 7 event that, during the pendency of these proceedings, the 8 Respondent has gone out of business or closed the facility 9 involved in these proceedings, the Respondent shall duplicate 10 and mail, at its own expense, a copy of the notice to all 11 current employees and former employees employed by the 12 Respondent at any time since December 15, 2003. 13 (f) Within 21 days after service by the Region, file 14 with the Regional Director a sworn certification of a 15 responsible official on a form provided by the Region 16 attesting to the steps that the Respondent has taken to comply.