Abbott Ambulance of Illinois

National Labor Relations Board - Board Decisions

Feb 28, 2007

349 N.L.R.B. 43 (N.L.R.B. 2007)

349 NLRB No. 43
Abbott Ambulance of Illinois and Professional EMTS
& Paramedics (PEP). Case 14–CA–28826
February 28, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND KIRSANOW
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on November 24, 2006,
the General Counsel issued the complaint on December
8, 2006, alleging that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act by refusing the Union’s
request to bargain following the Union’s certification in
Case 14–RC–12491. (Official notice is taken of the “re-
cord” in the representation proceeding as defined in the
Board’s Rules and Regulations, Secs. 102.68 and
102.69(b); Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations in the complaint, and asserting
affirmative defenses.
On January 4, 2007, the General Counsel filed a Mo-
tion for Summary Judgment and a brief in support of the
Motion. On January 9, 2007, the Board issued an order
transferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted. The
Respondent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the basis of the
Board’s disposition of a determinative challenged ballot
in the representation proceeding.1
The Respondent does not offer to adduce at a hearing
any newly discovered and previously unavailable evi-
dence, nor does it allege any special circumstances that
would require the Board to reexamine the decision made
in the representation proceeding. We therefore find that
the Respondent has not raised any representation issue
that is properly litigable in this unfair labor practice pro-

1 The Board’s Decision and Direction adopting the Hearing Officer’s
findings and recommendations is reported at 347 NLRB No. 82 (2006).
In addition to denying that the certification was proper, the Respon-
dent alleges, as an affirmative defense, that even if the allegations of
the complaint are true, the charge was prematurely filed because no
alleged unfair labor practice had occurred on or before November 24,
2006, as the Respondent did not refuse to bargain until it sent its De-
cember 4, 2006 letter. This argument is irrelevant because the Respon-
dent has admitted the operative complaint allegations that the Union
requested bargaining on November 1, 2006, and that the Respondent
has refused to bargain with the Union since December 4, 2006.
ceeding.2 See Pittsburgh Plate Glass Co. v. NLRB, 313
U.S. 146, 162 (1941). Accordingly, we grant the Motion
for Summary Judgment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Illinois not-
for-profit corporation, with its principal office and place
of business in Belleville, Illinois, has been engaged in the
business of providing patient transportation services for
various municipalities in the State of Illinois.
During the 12-month period ending November 30,
2006, the Respondent, in conducting its business opera-
tions described above, performed services valued in ex-
cess of $50,000 for the Illinois municipalities of Fairview
Heights, Caseyville, Belleville, and Madison, each of
which municipalities are directly engaged in interstate
commerce.
During the 12-month period ending November 30,
2006, the Respondent, in conducting its business opera-
tions described above, derived gross revenues in excess
of $500,000.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held April 15,
2004, the Union was certified on August 22, 2006, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time EMT’s, Paramedics,
customer representatives, and couriers employed at the
Employer’s Belleville, Illinois facility, EXCLUDING
all dispatchers, mechanics, office clerical employees,

2 Chairman Battista dissented in the underlying representation case.
Contrary to his colleagues in the majority, he would not apply the test
in Red Arrow Freight Lines, 278 NLRB 965 (1986), to determine the
voting eligibility of individuals who were absent from their unit posi-
tions for medical reasons. Rather, consistent with the Board’s eligibil-
ity standard for laid-off employees, he would assess whether the em-
ployee, as of the date of the election, had a reasonable expectancy of
returning to the unit. Applying that test, he would find that the em-
ployee at issue was not eligible to vote in the election. While he re-
mains of that view, he agrees that the Respondent has not raised any
new matters that are properly litigable in this unfair labor practice case.
See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). In
light of this, and for institutional reasons, he agrees with the decision to
grant the General Counsel’s Motion for Summary Judgment.
3 Therefore, we deny the Respondent’s request that the complaint be
dismissed in its entirety.
DECISIONS OF THE NATIONAL LABOR RELATIONS2
professional employees, guards, and supervisors as de-
fined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
By letter dated November 1, 2006, the Union re-
quested that the Respondent bargain collectively with it
as the exclusive collective-bargaining representative of
the unit. By letter dated December 4, 2006, the Respon-
dent refused to bargain collectively with the Union. We
find that this refusal constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since on or about December 4,
2006, to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the unit
employees, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union, and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); and Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Abbott Ambulance of Illinois, Belleville,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Profes-
sional EMTS & Paramedics (PEP), as the exclusive bar-
gaining representative of the employees in the bargaining
unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
the agreement in a signed agreement:
All full-time and regular part-time EMT’s, Paramedics,
customer representatives, and couriers employed at the
Employer’s Belleville, Illinois facility, EXCLUDING
all dispatchers, mechanics, office clerical employees,
professional employees, guards, and supervisors as de-
fined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Belleville, Illinois, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December 4, 2006.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board had found that we
violated Federal labor law and has ordered us to post and
obey this notice.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ABBOTT AMBULANCE OF ILLINOIS 3
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to recognize and bargain with
Professional EMTS & Paramedics (PEP), as the exclu-
sive collective-bargaining representative of the employ-
ees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the following bargaining unit:
All full-time and regular part-time EMT’s, Paramedics,
customer representatives, and couriers employed at our
Belleville, Illinois facility, EXCLUDING all dispatch-
ers, mechanics, office clerical employees, professional
employees, guards, and supervisors as defined in the
Act.
ABBOTT AMBULANCE OF ILLINOIS