AMERICAN MEDICAL RESPONSE WEST

National Labor Relations Board - Administrative Judge Opinions

Dec 17, 2015

32-CA-147259 (N.L.R.B. Dec. 17, 2015)

JD–(SF)-51-15
Stockton, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AMERICAN MEDICAL RESPONSE WEST
and Case No. 32–CA–147259
32–CA–149437
UNITED EMERGENCY MEDICAL SERVICE WORKERS,
AFSCME LOCAL 4911, AFL–CIO
Emily Erdman, Esq.
Noah Garber, Esq.
for the General Counsel.
Daniel Fears, Esq.,
Payne & Fears,
for the Respondent.
Alejandro Delgado, Esq.,
Manuel Boigues, Esq.,
David Rosenfeld, Esq.,
Weinberg, Roger, and Rosenfeld,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Eleanor Laws, Administrative Law Judge. This case was tried in Oakland, California, on
October 14, 2014. The United Emergency Medical Service Workers-AFSCME Local 49-1-1,
AFL-CIO (Charging Party or Union) filed the charge in Case 32–CA–147259 on February 27,
2015, and filed the charge in Case 32–CA–149437 on April 2, 2015.1 The General Counsel
consolidated the cases and issued the complaint on July 30, 2015. American Medical Response
West (the Respondent or AMR) filed a timely answer. On September 25, 2015, the General
Counsel amended the complaint. As agreed upon by the parties during a prehearing conference,
the Respondent answered the complaint on the record at the hearing.

1 All dates are in 2015 unless otherwise noted.
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2
The complaint alleges the Respondent violated Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act) when it failed to provide information or seek accommodation on
requests for information from the Union concerning the terminations of three bargaining-unit
employees. 5
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Charging Party, and Respondent, I
make the following
10
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of business in Stockton, 15
California, is engaged in the business of providing ambulance transport services. In conducting
its business during the relevant time period, it performed services valued in excess of $50,000
outside the State of California. The Respondent admits, and I find, that it 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. 20
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
25
This case concerns AMR’s operations in Stockton, California. Ambulance transportation
services are provided by AMR’s emergency medical technicians (EMTs), paramedics, and
nurses. New paramedics are paired with field training officers (FTOs) who provide them with
on-the-job instruction. FTOs provide input into whether new paramedics are promoted.
30
The Respondent and the Union are parties to a collective bargaining agreement. The
Union represents approximately 250–300 employees in Stockton in the following bargaining
unit:
All employees performing work described in and covered by “Article 1-Recognition” of 35
the January 1, 2015 through June 30, 2018 collective-bargaining agreement between the
Union and the Respondent (the Agreement); excluding all other employees, guards, and
supervisors as defined in the Act.
Keri Limpin (Limpin) is the Respondent’s human resources manager. David Stephens40
(Stephens), a paramedic for AMR, serves as the Union’s chief shop steward for San Joaquin
County, and is on the Union’s executive board of directors. David Hamric (Hamric), also a
paramedic and field training officer (FTO) for AMR, is a shop steward and assistant chief with
the Union.
45
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3
B. Information Request for Tracy Perkin
The Respondent has a zero tolerance policy regarding sexual harassment.
In late December 2014, Limpin received a call from a supervisor regarding a 5
conversation that had occurred at the Respondent’s Christmas party, which took place on
December 20, 2014. The supervisor talked to an employee who shared a conversation he’d had
with employee Tessa Malinowski (Malinowski) about potential sexual harassment by FTO Tracy
Perkin (Perkin). On December 25, 2014, Emergency Medical Services Captain Steve Riley
forwarded Limpin two emails he received from employees that day summarizing their 10
conversations with Malinowski. (GC Exh. 4, pp. 5–8).2
Limpin conducted an investigation, which involved interviewing Malinowski, Perkin, and
four other individuals. Her practice when conducting investigations is to let the interviewee
know she will be taking notes. After the interview is finished, she prints out her notes and 15
permits the interviewee to review the notes and make any changes. She asks the interview to
initial each page and sign the notes.
The notes of each interview Limpin conducted start as follows: “KL–reviewed
confidentiality, retaliation, and the importance of being truthful during the investigation.” 20
Limpin spoke with Malinowski, who reported that Perkin had pulled her hair, smacked her on
the bottom, and said, “Here blondie, here’s your computer.”
Two of the employees Limpin interviewed expressed fear of retaliation from the Union if
they came forward, and asked if they could talk to Limpin confidentially. Limpin told them she 25
would maintain confidentiality, and would not release her notes unless she was forced. One of
the employees was new, and Perkin was his FTO. He expressed concern that he would not pass
his training if he came forward and reported Perkin and said did not want to make any waves.
Perkin was placed on administrative leave on January 23, 2015, pending investigation 30
into allegations he “smacked” Malinowski on the buttocks and pulled her hair. During an
investigatory interview that same day, Perkin admitted “swatting” his female partner on the
buttocks with a clipboard while serving as her partner and FTO on December 18, 2014. He was
terminated for inappropriate conduct, effective January 27, 2015.3 (GC Exh. 2.)
35
The Union filed a grievance on January 27, accompanied by the following request for
information:
We request any and all information including but not limited to investigations conducted
by AMR with all employees including notes, electronic, handwritten or otherwise. Any 40
video, audio recordings. a list of persons that were interviewed not being AMR

2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for the
Respondent’s exhibit; “GC Exh.” for the General Counsel’s exhibit. Although I have included several
citations to the record to highlight particular testimony or exhibits, I emphasize that my findings and
conclusions are based not solely on the evidence specifically cited but rather are based my review and
consideration of the entire record.
3 Perkin had a prior discipline in his file for unprofessional conduct with a female coworker.
JD–(SF)-51-15
4
employee's including all records and notes of the meetings electronic, handwritten or (sic)
other wise. How non AMR employees were contacted. Chain of events itemized with
span of control on how AMR was informed and the chain of events leading to
termination. A hard physical copy Tracy Perkin employee file including but not limited to
all training and compliance pertaining to subject of discharge along with all discipline 5
records. All information pertaining to the interview and the investigation process of
Tracy Perkin discharge.
(GC Exh. 3.)
10
About a week later, General Manager Barry Elzig (Elzig) told Stephens the responsive
information was in the supervisors’ office in a box with Stephens’ name on it. Stephens picked
up the information, which included Perkin’s employee file and investigation notes with all names
redacted except for Malinowski’s. (GC Exh. 4.)
15
Stephens did not find the redacted witness statements sufficient to determine whether to
take the Perkin grievance to arbitration. A series of emails between Stephens and Elzig took
place on February 5. Stephens expressed his belief that the information provided was
incomplete, and stated that the Union had the right to conduct its own investigation, including
interviewing witnesses. Elzig responded, stating the employer has an obligation to protect 20
witnesses in investigations. Stephens replied, reiterating the Union’s need for the information to
determine whether the termination had merit and warranted proceeding to arbitration. In
response to concerns Elzig expressed about disclosing the names of bargaining-unit witnesses,
Stephens stated he would not disclose witness names to anyone. (GC Exh. 5.)
25
On February 6, Stephens and Elzig met in Elzig’s office. Elzig explained that the
employer had an obligation to protect the identity of the witnesses from whom they had obtained
statements. Elzig did not offer to bargain over the refusal to provide witness names, nor did he
offer an accommodation.
30
Stephens attempted to speak to Malinowski about the incident leading to Perkin’s
termination by calling her approximately three times in January and February 2015. The first
time Stephens spoke with Malinowski he told her she was not required to talk to him, and he
could arrange a meeting with Elzig in attendance if that would make her more comfortable.
Malinowski said she would think it over and get back to him. Stephens then left a voicemail for 35
Malinowski. He called her again, and she said she did not want to discuss the matter.
On February 14, Office Manager Michelle Tomscak (Tomscak) sent Limpin an email
describing a conversation she had with Malinowski, during which Malinowski had reported
feeling pressured by Stephens to provide information about her allegations. According to 40
Tomscak’s report, Stephens told Malinowski that if this went to arbitration, she would be
subpoenaed, and the other statements contradicted her statement. (R Exh. 5.)
Malinowski sent Limpin an email on February 25 describing her conversation with
Stephens. Malinowski said she returned Stephens’ call on February 13, and told him she was 45
uncomfortable discussing the incident involving Perkin. Stephens told her that during arbitration
she would be forced to discuss it, and informed her that reports given about the event were
JD–(SF)-51-15
5
contradictory. Malinowski perceived the conversation as a thinly veiled threat of legal action
against her and felt she was being called a liar. (R Exh. 6.)
Perkin and Stephens attended a level 1 grievance meeting in Steve Riley’s office the
second or third week in February. Stephens said he thought termination was excessive and said 5
he may have had more to add if the Respondent had provided the information the Union
requested. Riley did not offer to bargain over the refusal to provide witness names or offer an
accommodation. The level 1 grievance was denied.
Stephens again requested non-redacted notes from witness interviews in emails to Limpin 10
on February 19 and 24. Limpin responded, stating that the Company had provided the requested
information and considered the matter closed. (GC Exhs. 6–7.)
On February 23, Stephens received an incident report stating an employee had accused
him of acting in a harassing manner. Stephens understood the employee in question was 15
Malinowski. Stephens responded, stating that he did not engage in any harassment, and even
informed the employee (Malinowski) she did not have to speak with him if she did not want to.
(R Exhs. 1–2.) No further action was taken.
On February 25, an employee emailed Limpin expressing a desire not to have his or her 20
name given out for the investigation. On February 26, another employee emailed Limpin stating
he or she was approached by Michelle Tomscak about the release of names attached to Perkin’s
incident report. The employee stated, “I do not wish to have my name released not only for
confidentiality but to avoid possible retaliation as well.” (R Exh. 8.)
25
At the time of the hearing, Perkin’s grievance had been approved by the arbitration board
and was awaiting scheduling. The Union is unaware of any documents that exist but have not
been provided, other than non-redacted witness statements.
C. Information Requests for Craig Gardina and Richard Wadsworth 30
AMR has a policy prohibiting employees from bringing firearms to the work premises.
Violation of this policy is grounds for immediate termination. (Tr. 156.)
On January 21, an employee, using an alternate email address, sent an email to Jennifer 35
Bales, safety risk manager, asking what would happen to employees who brought firearms to
work, and what protection would be given to an individual who reported them. The employee
said he feared for his life and the lives of his family members, and if he could not be assured
protection, he could not report these individuals. Bales and the employee exchanged a couple
more emails about the how to proceed with the matter, and on the evening of January 23, the 40
employee came forward with the names of the employees, Craig Gardina and Richard
Wadsworth.4 (R Exh. 3.)

4 The employee eventually forwarded the email exchange to Limpin on February 11. Both Gardina
and Wadsworth have permits to carry concealed weapons.
JD–(SF)-51-15
6
Elzig and Limpin, along with supervisors Rob Hennin and Mike Robinson, decided to go
to the station during Gardina and Wadsworth’s next scheduled shift, Sunday January 25, to
search for weapons. They asked Wadsworth if he had weapons on the premises or if he even
brought weapons to work, and he said no. Upon a search of Wadsworth’s backpack, Elzig felt
the handle of a firearm. Law enforcement was called, and Officer Jesus Gonzalez from the 5
Stockton Police Department inspected the gun and determined it was a black 9mm Glock, model
26, subcompact, semi-automatic pistol with a 10–round magazine inserted. He ejected the
magazine which was loaded with 10 rounds, but did not have a round in the chamber.
Wadsworth said he had forgotten the firearm was in his backpack. The police removed the gun
from the premises. (GC Exh. 13.)10
The same individuals asked Gardina whether he had a weapon on the premises. He
denied having it in his locker, and said that if he brought it, he would keep it in his car. Limpin
asked Gardina to show them his car. He refused and asked for a shop steward. Gardina would
have permitted a search of his car if a shop steward had been present. 15
On January 25, Wadsworth was placed on administrative leave pending the results of
investigation into the allegation that he brought a firearm to work and stored it in his backpack
and/or locker and carried a firearm on an ambulance while on duty. He was terminated on
February 13 for bringing a firearm to work. (GC Exh. 9.)20
On January 25, Gardina was placed on administrative leave pending the results of
investigation into the allegation that he brought a firearm to work and stored it in his backpack
and/or locker while on duty. Gardina’s termination notice states that he admitted to telling
multiple members of management he brought his firearms to work and stored them in his car, but 25
he denied this at his investigative interview.5 He was terminated on February 13 for bringing a
firearm to work. (GC Exh. 8.)
On February 4, Limpin conducted an interview with the witness who reported Gardina
and Wadsworth. She assured him she would keep his identity confidential, and would only 30
release it if she was forced. (R Exh. 4; Tr. 158.)
In early February, Hamric and Jeffrey Misner, a labor representative from the Union,
participated in telephonic investigatory interviews regarding Gardina and Wadsworth. For each
employee’s interview, Tomscak and Mary Kennedy, manager of the critical care transport 35
division, were present for the Respondent. Misner asked if Gardina or Wadsworth had
threatened violence, and was told they had not.
Hamric filed grievances over both terminations on February 26. The grievances
contained requests for “[a]ny and all IR's [investigative reports], documents, statements, emails, 40
video, audio or other items used in the decision to terminate” Gardina and Wadsworth. (GC
Exhs. 10–11.) The Respondent provided copies of the employees’ respective termination letters
and employee files, along with some emails not pertaining to the terminations.

5 He also denied it when he testified at the hearing.
JD–(SF)-51-15
7
On March 5, Hamric emailed Limpin stating that the Union found the information the
Company provided to be incomplete, and making a second request for the information. (GC
Exh. 12.) He again requested the information in an email to Limpin on March 14, stating he
needed it to proceed to level 2 of the grievance process. Jeffery Misner requested the documents
from Elzig on March 16. Elzig informed Hamric that the Company had produced everything it 5
was going to produce for Gardina and Wadsworth’s level 2 grievances. He asked Misner to call
him. (GC Exh. 14.)
That same day, March 16, Misner called Elzig, who said the all the information the Union
had requested in the Wadswoth/Gardina matter had been provided. Misner said information with 10
the names redacted would be acceptable to him. Elzig said the individual who made the
allegation feared for his life if his name was disclosed. Misner assured Elzig there would be no
threats from Gardina or Wadsworth. (GC Exh. 15.)
Later that day, Limpin provided Misner a copy of the police report from the incident 15
regarding Wadsworth’s firearm. (GC Exh. 13.)
The level 2 grievance meetings for Gardina and Wadsworth took place in April. Hamric
and Misner were there with each employee for his meeting. Theresa Foletta, a human resources
specialist, was present for the Respondent. Misner informed Foletta that the meeting would be 20
short because he did not have the information he had requested.
At the time of the hearing, both Gardina and Wadsworth’s grievances were awaiting
arbitration.
25
The Respondent did not tell Hamric or Misner certain information did not exist or offer
the Union an accommodation. Limpin is unaware of any audios, videos, investigative reports, or
witness statements that were not produced. She considered providing a redacted witness
statement, but after looking at it, she determined there would be nothing left after the redactions.
30
Limpin has never received complaints that Gardina or Wadsworth threatened anyone on
the job.
III. DECISION AND ANALYSIS
35
Pursuant to Section 8(a)(5) of the Act, each party to a bargaining relationship is required
to bargain in good faith. As part of the obligation to bargain in good faith, both sides must
furnish relevant information upon request. NLRB v. Acme Indus. Co., 385 U.S. 432 (1967);
Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979). It is well settled that an employer must
provide information relevant to a union’s decision to file or process grievances. See Beth 40
Abraham Health Services, 332 NLRB 1234 (2000); Ohio Power Co., 216 NLRB 987, 991
(1975), enfd. 531 F.2d 1381 (6th Cir. 1976). If the information sought relates to the processing
of a grievance, (or potential grievance), the legal test is whether the information is relevant to the
grievance and the determination of relevancy is made based on a liberal, discovery type of
standard. Acme, 385 U.S. at 437; Knappton Mar. Corp., 292 NLRB 236 (1988). In determining 45
possible relevance, the Board does not pass upon the merits, and the labor organization is not
JD–(SF)-51-15
8
required to demonstrate that the information is accurate, not hearsay, or even ultimately reliable.
Postal Service, 337 NLRB 820, 822 (2002).
Information concerning employees in the bargaining unit and their terms and conditions
of employment, is deemed “so intrinsic to the core of the employer-employee relationship” as to 5
be presumptively relevant. Disneyland Park, 350 NLRB 1256, 1257 (2007); Sands Hotel &
Casino, 324 NLRB 1101, 1109 (1997). Presumptively relevant information must be furnished on
request to employees’ collective-bargaining representatives unless the employer establishes
legitimate affirmative defenses to the production of the information. Metta Electric, 349 NLRB
1088 (2007); Postal Service, 332 NLRB 635 (2000).10
There is no dispute the information requested concerns bargaining-unit employees and
the processing of grievances, and is therefore presumptively relevant. The Respondent contends,
however, that some of the documents requested are witness statements and/or confidential
information protected from disclosure. The Respondent also asserts it has a legitimate interest in 15
protecting the identities of the witnesses who provided statements, and therefore it need not
provide information that would reveal these witnesses’ identities. As the Party asserting the
claim of confidentiality, the Respondent bears the burden of proof. Washington Gas Light Co.,
273 NLRB 116 (1984).
20
In Anheuser-Busch, Inc., 237 NLRB 982 (1978), the Board created a rule exempting
witness statements from an employer’s general obligation to comply with union requests for
information. In Piedmont Gardens, 362 NLRB No. 139 (2015), the Board overruled Anheuser-
Busch, but held its decision would only apply prospectively. Because the underlying facts in the
instant case occurred before Piedmont Gardens, the following rationale set forth in Anheuser-25
Busch applies:
We, of course, recognize and continue to adhere to the Acme principle that Section
8(a)(5) of the Act imposes on an employer the “general obligation” to furnish a union,
upon request, information relevant and necessary to the proper performance of its duties 30
as bargaining representative. Witness statements, however, are fundamentally different
from the types of information contemplated in Acme, and disclosure of witness
statements involves critical considerations which do not apply to requests for other types
of information. We do not believe that the principle set forth in Acme and related cases
dealing with the statutory obligation to furnish information may properly be extended so 35
as to require an employer to provide a union with statements obtained during the course
of an employer's investigation of employee misconduct.
[Footnote omitted.] To fall within this protection, the statement must be adopted by the witness
making it and there must be assurances to the witness that the statement will remain confidential. 40
See New Jersey Bell Telephone Co., 300 NLRB 42, 43 (1990); El Paso Electric Company, 355
NLRB 428 (2010).
Even if requested information does not fall into the category of witness statements under
Anheuser Busch, an employer may assert a confidentiality defense. In considering union 45
requests for relevant but assertedly confidential information, the Board balances the union's need
for the information against the employer’s “legitimate and substantial” confidentiality interests.
JD–(SF)-51-15
9
See Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). The Board has defined confidential
information, which could in certain circumstances give rise to a valid confidentiality claim,
justifying refusal to turn over information as follows:
Confidential information is limited to a few general categories: that which would reveal, 5
contrary to promises or reasonable expectations, highly personal information, such as
individual medical records or psychological test results; that which would reveal
substantial proprietary information, such as trade secrets; that which could reasonably be
expected to lead to harassment or retaliation, such as the identity of witnesses; and that
which is traditionally privileged, such as memoranda prepared for pending lawsuits. 10
Detroit Newspaper Agency, 317 NLRB 1071, 1073 (1995).
“The confidentiality interest of the employer … is not fixed; it may vary with the nature
of the industry or the circumstances of a particular case.” Resorts International v. NLRB, 996 15
F.2d 1553, 1556 (3d Cir. 1993); Compare Metropolitan Edison Co., 330 NLRB 107 (1999)
(concerns about petty cafeteria theft do not carry “unusually great weight”); Pennsylvania Power
Co., 301 NLRB 1104 (1991) and Mobil Oil Corp., 303 NLRB 780 (1991) (concerns about drug
use of employees whose jobs were related to safety justified withholding of informants’ names).6
20
The party asserting the confidentiality defense may not simply refuse to furnish the
requested information, but must raise its confidentiality concerns in a timely manner and seek an
accommodation from the other party. Detroit Newspaper, supra at 1072; Metropolitan Edison,
supra.
25
A. Tracy Perkin
Complaint paragraphs 7 and 9 allege that the Respondent violated Section 8(a)(5) and (1)
of the Act by failing and refusing to provide and/or to timely provide the Union with the names
of the witnesses who provided statements in connection with the Respondent’s investigation that 30
led to Perkin’s termination.
The record contains documents in the form of emails and witness interview notes. I will
turn first to the two emails dated December 25, 2014.7 One of the emails from an unidentified
employee to Riley describes what Malinowski had shared with that employee at the company’s 35
Christmas Party about her encounter with Perkin. (GC Exh. 4, pp. 6–7.) There is no evidence
that the email was solicited with assurances of confidentiality. The same holds true for another
December 25 email to Riley. (GC Exh. 4, p. 8.) The unidentified author of the email indicated
he was passing along the information based on his belief he was required to do so pursuant to a
recent training. There is nothing in the email to suggest he had been assured confidentiality, 40
requested confidentiality, or expected confidentiality. Likewise, Riley’s email to Limpin and

6 The parties cite to Alcan Rolled Products, 358 NLRB No. 11 (2012). This decision was rendered
invalid by NLRB v. Noel Canning, a Division of the Noel Corp., 134 S.Ct. 2550 (2014), and I do not rely
on it to support my findings.
7 I find the emails are encompassed in the request for “[a]ll information pertaining to the interview
and the investigation process of Tracy Perkin discharge.”
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10
Elzig about his conversation with one of the individuals does not show he assured confidentiality
or that the witness requested it. (GC Exh. 4, p. 5.)
Moreover, one of the individuals Malinowski talked to at the Christmas party about the
incident with Perkin expressed a willingness to come forward, dispelling the notion that there 5
was significant concern about retribution from Perkin or the Union. A witness interview by
Limpin reveals the following:
Last week I was working with [name redacted]. Tess was there with her partner. She
asked me if I came in to HR and if they’ve talked to me about spanking her on the butt. 10
She told me the story that she told her friend at the Christmas party about him doing this
and that he told her if she didn’t say anything I will.
(R Exh. 4, p. 4.) The witness referenced in this exchange apparently was not reluctant to come
forward. 15
The only evidence the Respondent presented that arguably might relate to confidentiality
of these emails consists of emails from two employees to Limpin two months later, on February
25 and 26, 2015, respectively, requesting confidentiality. (R Exh. 8.) Of course, with the names
redacted, there is no way to tell if these February emails to Limpin are from the same witnesses 20
who emailed Riley on December 25. In any event, it is clear any assurances of confidentiality
must be provided at the time of the statement for it to be protected under Anheuser Busch.
Because the December 25 emails to Riley were not protected witness statements under
Anheuser Busch, I must apply the Detroit Edison balancing test to determine whether the 25
Respondent has met its burden to prove it was entitled to keep the identity of the emails’ authors
confidential.
The first consideration is the Union’s need for the identity of the individuals who emailed
Riley. I find the Union has established the identity of the emails’ authors was relevant to its 30
representational function in the Perkin matter. The Respondent contends that because Perkin
admitted “swatting” Malinowski with his clipboard, his termination was warranted regardless of
any other information the witnesses might provide. I find this contention assumes an overly
simplistic view of the Union’s representational function. It is not a foregone conclusion that all
employees who have engaged in conduct similar to Perkin’s admitted conduct have been 35
terminated for it.8 The Union has a right to explore the precise nature and extent of what
Malinowski reported to others about the incident to try to ascertain what actually occurred and to
make credibility assessments. Moreover, as the Board (quoting the judge) noted in Pennsylvania
Power, supra at 1106, ‘“[t]he accusation is what set the entire machinery in motion. Without it
there would be no interview, no test, no suspension, and no discharge.”40
The Respondent contends that its confidentiality interests outweigh the Union’s need for
the information. Specifically, the Respondent contends that confidentiality is required in order to
encourage employees to report sexual harassment. As noted above, one of the employees was
intent on coming forward before any assurances of confidentiality were requested or provided. 45

8 The witnesses’ accounts were clearly relied on in making the decision to terminate Perkin.
JD–(SF)-51-15
11
The Respondent did not present evidence that either of the employees who emailed Riley on
December 25 required confidentiality assurances in order to report concerns of sexual
harassment.
The Respondent asserts the employees feared retaliation from the Union.9 The Board has 5
found that identifying information can raise a legitimate and substantial confidentiality interest if
its disclosure “could reasonably be expected to lead to harassment or retaliation.” Detroit
Newspaper Agency, supra at 1073. To show that such expectation is reasonable, the party
asserting confidentiality must offer evidence indicating “a likelihood or real risk” of harassing or
retaliatory conduct; “a mere possibility does not suffice.” Metro Edison, supra. The only 10
evidence to support the Respondent’s position is Malinowski’s report about a phone call from
Stephens that made her feel uncomfortable. This only occurred after the Respondent’s
investigation into Perkin had concluded and after he had already been terminated. Admittedly,
when Malinowski told Stephens she did not want to talk to him, he did not attempt to contact her
again. No evidence was presented that Malinowski shared her conversation with Stephen with 15
the witnesses, or that Stephen or any other union official had a history of retaliating against
individuals who reported sexual harassment.
Based on the foregoing, I find the Respondent has not met its burden to prove the authors
of the email reasonably feared retaliation from the Union. 20
Even if the Respondent has asserted a legitimate and substantial confidentiality interest, I
find it was not so substantial as to justify its “blanket refusal to provide any information in
response to the request for informants’ names.” Metro Edison Co., supra. The Respondent had
an obligation to come forward with an offer to accommodate both its concerns and the Union's 25
legitimate needs for relevant information. As stated in U.S. Testing Co. v. NLRB, 160 F.3d 14,
20-21 (D.C. Cir. 1998):
[I]t has long been established that an employer has the burden of seeking to accommodate
the union's request for relevant information consistent with other interests rightfully to be 30
protected. An employer is not relieved of its obligation to turn over relevant information
simply by invoking concerns about confidentiality, but must offer to accommodate both
its concerns and its bargaining obligations, as is often done by making an offer to release
information conditionally or by placing restrictions on the use of that information.
[Citations omitted.]35
There is no evidence of such an offer here.
With regard to the notes from the witness interviews, I find they fall into the Anheuser
Busch category of witness statements. Limpin provided unrefuted testimony that the witnesses 40
expressed concern about retaliation, and she assured each of the individuals she interviewed that
their statements would be confidential. The witnesses initialed each page of their respective
statements, indicating they adopted their statements. The General Counsel contends that witness

9 There was also testimony that one of the witnesses expressed concern Perkin would not pass him.
This was in connection with Limpin’s interviews, however, not the emails. (Tr. 169–170.) The
interviews and notes are discussed below.
JD–(SF)-51-15
12
statements should be strictly limited to verbatim transcripts or a close approximation, and that
the statement must bear the witness’s signature. The Board in New Jersey Bell Telephone,
however, noted that there is no requirement that “a statement be formally adopted or set forth in
any particular manner in order to come within the witness statement exception.” When a
statement is withheld, or as here partially withheld, the employer must accommodate the Union 5
by providing a summary of the statement. Pennsylvania Power Co. supra. I find the Respondent
met its burden under Anheuser Busch by providing the redacted witness statements to the Union.
B. Craig Gardina and Richard Wadsworth
10
Paragraphs 8 and 9 of the complaint allege the Respondent violated Section 8(a)(5) and
(1) of the Act by failing and refusing to provide and/or timely provide the Union with any and all
incident reports, documents, statements, e-mails, video, audio or other items used in connection
with Respondent’s investigation that led to the termination of employees Craig Gardina and
Richard Wadsworth, or seek an accommodation with the Union. 15
The information request regarding the Wadsworth and Gardina grievances primarily
concerns emails and the interview notes from the witness who reported concerns about firearms
at work. It is clear this witness disclosed her identity to the Respondent very reluctantly, after
requesting and being assured confidentiality. 20
The Respondent did not provide the emails pursuant to the Union’s request, though they
were admitted into evidence at the hearing with redaction of the author’s identity, as described
above. I agree with the Respondent that it had a legitimate confidentiality interest in withholding
the identity of the witness who wrote the emails. I further agree that this confidentiality interest25
outweighed the Union’s need for the identity of the emails’ author.10
Though, as the General Counsel points out, there is no evidence that Wadsworth or
Gardina had threatened or intimidated employees, this misses the point. It would defy any
measure of common sense to find an individual who believes coworkers are breaking the 30
employer’s rules and bringing deadly firearms into the workplace would not legitimately fear for
his safety by reporting this conduct.11 Citing to Pennsylvania Power Co., the General Counsel
argues that “a licensed, sober, professional carrying a legal firearm does not present even close to
the same public safety concerns as an intoxicated person operating heavy machinery and/or
nuclear power plant while intoxicated.” No relative analysis is necessary, however, because the 35
threat of workplace violence is clearly a legitimate and grave safety concern. In the case of
Wadsworth, the evidence is clear that he was willing to break the Respondent’s rules and bring a
Glock pistol loaded with a 10-round magazine to the workplace. Though it is unclear whether
Gardina had a firearm at work, it is the potential harm the alleged reported misconduct may bring
that is at issue. As the Board stated in Pennsylvania Power Co., supra at 1107, “To overlook the 40
pervasive drug problem in this country and in the workplace, and to disregard the violence that
accompanies that national concern would be unrealistic and contrary to national policy.” This
rationale applies with equal force to shootings in the workplace.

10 For the same reasons as explained regarding Tracy Perkin, I find the information is relevant to the
Union’s representational function.
11 The individual making the report was identified as male. (GC Exh. 15.)
JD–(SF)-51-15
13
I agree with the Respondent that AMR has a substantial interest in maintaining the
confidentiality of individuals who report other employees carrying firearms to the workplace to
protect the employees’ safety and avoid chilling further employee complaints. I therefore find
the Respondent has met its burden to prove it had a legitimate and substantial confidentiality 5
interest permitting it to withhold the identity of the witness who sent the emails that outweighs
the Union’s need for this information. The Respondent, however, was required to offer an
accommodation, such as providing the emails in redacted form to conceal the author’s identity.
No evidence was presented that such an offer was made. I therefore find the Respondent failed
to offer an accommodation with respect to the emails, and violated the Act as alleged.10
The Respondent did not provide the notes from Limpin’s interview with the witness. For
the same reasons as with the Perkin interview notes, I find this was a witness statement under
Anheuser Busch. As such, the Respondent was not obligated to provide it. The Respondent was,
however, required to offer the accommodation of providing a summary of the statement in a 15
manner that did not reveal the informant’s identity. See Postal Service, 332 NLRB 635, 637
(2000); Pennsylvania Power, supra at 1106. The Respondent argues the termination letters for
Wadsworth and Gardina satisfy this requirement. I disagree. First, as the General Counsel
points out, the Respondent did not inform the Union that the termination letters were provided as
the witness statement summaries. I further agree with the General Counsel that the termination 20
letters lack any meaningful details such as the dates of the allegations, the manner in which the
allegations were made, and any specifics of the witness’s observations and/or knowledge. They
do not constitute a bargained-for accommodation “that satisfies both the union’s needs and the
employer’s justified confidentiality concern.” Exxon Co., 321 NLRB 896, 899 (1996), citing
Pennsylvania Power Co., supra at 1105–1106. 25
Finally, the General Counsel argues that the Respondent failed to meet its affirmative
obligation to inform the Union that certain categories of information did not exist. It is clear,
however, that Elzig informed Misner the Respondent had provided all of the information the
Union had requested in the Gardina/Wadsworth matter, other than the investigative report 30
discussed directly above.12 (GC Exh. 15.) This conveys the very same information as telling the
Union certain categories of information do not exist. I therefore find the General Counsel’s
argument on this point unpersuasive.
CONCLUSIONS OF LAW35
1. By failing to provide non-confidential information requested by the Union and failing
to seek an accommodation with the Union regarding confidential requested information, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 2 (2), (6) and (7) of the Act.40
2. By failing to provide non-confidential information requested by the Union and failing
to seek an accommodation with the Union regarding confidential requested information, the
Respondent has violated Section 8(a)(5) and (1) of the Act.

12 The General Counsel argues the Respondent failed to deny certain categories of information
regarding the Perkin request, but this goes beyond the complaint allegations.
JD–(SF)-51-15
14
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall 5
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
Having found the Respondent unlawfully refused to provide the Union with the
December 25, 2014, emails used in the Perkin investigation, the Respondent shall be ordered to 10
provide the Union with this information.
Having found the Respondent failed to seek an accommodation with the Union regarding
the witness statements and the emails from the witness in the Gardina/Wadsworth investigations,
the Respondent shall be ordered to bargain with the Union toward an accommodation that 15
satisfies both the Union’s needs and the employer’s confidentiality concern.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13
20
ORDER
The Respondent, American Medical Response West, Stockton, California, its officers,
agents, successors, and assigns, shall25
1. Cease and desist from:
a. Unlawfully refusing to provide the Union with the December 25, 2014 emails
used in the Perkin investigation, the Respondent shall be ordered to provide 30
the Union with this information;
b. Unlawfully failing to seek an accommodation with the Union regarding the
witness statements and the emails from the witness in the Gardina/Wadsworth
investigations;35
c. 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.
40

13 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 purposes.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
a. Provide the Union with
investigation;
5
b. Bargain with the Union
Union’s needs and the employer’s
witness statements and the emails from the witness in the Gardina/Wadsworth
investigations.
10
c. Within 14 days after service by the Region,
California, copies of the attached notice marked
notice, on forms provided by the Regional Director for Region 32, after being
signed by the Respondent’s authorized representative, shall be poste
Respondent and maintained for 60 consecutive days in conspicuous places 15
including all places where notices to [employees] [members] [employees and
members] are customarily posted. In addition to physical posting of paper
notices, the notices shall
posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. 20
Reasonable steps shall be taken by the Respondent to e
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 current 25
employees and former employees employed by the Respondent at any time
since January 27, 2015
d. 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 30
attesting to the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically
35
Dated, Washington, D.C. December 17, 2015
40

14 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 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–
15
the December 25, 2014 emails used in the Perkin
toward an accommodation that satisfies both the
confidentiality concern regarding the
post at its facility in Stockton,
“Appendix.
be distributed electronically, such as by email,
nsure that the notices
.
found.
____________________
Eleanor Laws
Administrative Law Judge
(SF)-51-15
”14 Copies of the
d by the
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 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 do anything to prevent you from exercising the above rights.
WE WILL NOT refuse to bargain in good faith with the United Emergency Medical Services
Workers AFSCME Local 4911, AFL-CIO (“the Union”) regarding wages, hours and other
working conditions of the employees in the following appropriate unit:
All full-time and regular part-time employees employed in Northern California as
described in “Article 1-Recognition” of our current collective-bargaining agreement with
the Union effective January 1, 2015, through June 30, 2018.
WE WILL NOT fail and/or refuse to provide and/or timely provide the Union with information
that is relevant and necessary to its role as your collective-bargaining representative, including
the processing of grievances.
WE WILL NOT fail and refuse to bargain in good faith with the Union toward a reasonable
accommodation as to requested information for which we claim a legitimate confidentiality
interest.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
WE WILL to the extent we have not already done so, provide the Union with the non-redacted
December 25, 2014 emails from employees utilized in the Perkin investigation.
WE WILL provide the Union with a summary of the statements provided by the informant, on
which the Respondent relied to form its suspicion that led to its investigations of Craig Gardina
and Richard Wadsworth for allegedly having firearms at the workplace in contravention of
Company policy. This summary need not contain any information from which the identity of the
informant can be ascertained, and any doubt whether the information can be used to identify the
informant should be resolved in favor of nondisclosure.
(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.
Oakland Federal Bldg., 1301 Clay Street, Room 300-N, Oakland, CA 94612-5211
(510) 637-3300, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/32-CA-147259 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (510) 637-3253.