Forest Park Ambulance Service

National Labor Relations Board - Board DecisionsOct 24, 1973

206 N.L.R.B. 550 (N.L.R.B. 1973)

550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Service Corporation d/b/a Forest Park Ambu- lance Service and New England Joint Board , Retail, Wholesale, and Department Store Union, AFL- CIO. Case 1-CA-8611 October 24, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 20, 1973, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, United Service Corporation d/b/a Forest Park Ambulance Service, Springfield, Massachusetts, its officers, agents, successors, and as- signs, shall take the action set forth in said recom- mended Order. DECISION Michael F. Roncalli; the complaint further alleges that Re- spondent violated Section 8(a)(1) of the Act by various acts of interrogation, threats of closure if the Union got in, and creation of the impression of surveillance, and the com- plaint also alleges that Respondent, after the Union won a Board-conducted election, withdrew certain preexisting em- ployee benefits. In its answer, Respondent denied the com- mission of any unfair labor practices. For reasons which will appear hereinafter, I find and conclude that Respondent discharged Henry Hall, Jr., and constructively discharged Michael F. Roncalli, in each case in violation of Section 8(a)(3) and (1) of the Act and also committed a number of independent violations of Section 8(a)(1). At the hearing the General Counsel and the Respondent were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses, to in- troduce evidence, and to file briefs. The parties waived oral argument at the conclusion of the hearing and Respondent and the General Counsel have filed briefs. Upon the entire record' in the case including the briefs, and from my observation of the witness, I make the follow- ing: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Respondent, a Massachusetts corporation, with its principal office and place of business in Springfield, Massa- chusetts, and another place of business at Holyoke, Massa- chusetts, is engaged at said locations in providing ambulance services and in the sale and rental of health care equipment. Both the Springfield and Holyoke locations are involved in. this proceeding. Respondent in the course' and conduct of its business received, during the calendar year 1971, in excess of $50,000' from institutions, commercial enterprises and governmental instrumentalities located in the Commonwealth of Massachusetts, each of which meets any of the Board's jurisdictional standards except where such standard may be based solely on indirect inflow or indirect outflow of goods and services. Upon the foregoing facts, Respondent admitted at the hearing, and I find, that Respondent is engaged in commerce within the meaning of the Act. STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on January 9 through 12, 1973, at Springfield, Massachusetts, pursuant to a charge filed on October 10, 1972, and duly served on Respondent the same date, and a complaint and notice of hearing, issued on November 22, 1972, by the Regional Director of Region 1 of the National Labor Relations Board which was likewise duly served. The charge was filed by New England Joint Board, Retail, Wholesale and Department Store Union, AFL-CIO, sometimes hereinafter referred to as the Union. The complaint, which was amended at the beginning of the hearing, alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Henry Hall, Jr., and II. THE LABOR ORGANIZATION INVOLVED New England Joint Board, Retail, Wholesale and De- partment Store Union, AFL-CIO, is a labor organization within the meaning of the Act. 1 The record errors are hereby noted corrected. Also General Counsel's motion to strike , taken under advisement , is denied inasmuch as the testimo- ny sought to be stricken relates to a subsequent conversation between the witness, John E. McLaughlin, and the Employer' s president , Soutiere, which dealt with complaints made by McLaughlin to Soutiere in respect to the conduct of one of the discriminatees. 206 NLRB No. 65 FOREST PARK AMBULANCE SERVICE 551 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events In July 1972, Michael F. Roncalli, one of the alleged discriminatees , and Mike Goldman held a number of dis- cussions with their fellow employees with regard to Respondent's wages and working conditions. Following these discussions Goldman drew up a petition for presenta- tion to Respondent's president, Richard Soutiere, in which certain improvements in salaries and other terms of employ- ment were requested. Goldman and Roncalli then circulat- ed this petition among their fellow employees and 9 out of 10 eventally signed it. In view of the lack of unanimity, however, it was decided, for the time being, not to present the petition. Roncalli and Goldman then went to see John Foley, a local official of the Union, about the possibility of organiz- ing Respondent's employees. Foley agreed to assist Roncalli and Goldman in this effort and provided them with blank union authorization cards. At Foley's suggestion the afore- mentioned employee petition was not presented to Respon- dent. In early August Roncalli and Goldman began contacting their fellow employees in an effort to obtain their signatures to the authorization cards. Sometime during the period from approximately August 10 through 14, 9 out of the 10 drivers and attendants employed by Respondent at Holyoke and Springfield including the alleged discriminatees, Hall and Roncalli, signed union authorization cards which were turned over to Foley on August 14, 1972. Foley then con- ducted a union meeting attended by Roncalli, Goldman, Douglas Adams, and David Alves. At this meeting Foley advised the employees that he was going to send a letter to Respondent requesting it to recognize the Union. On the same date Foley sent a letter to Respondent de- manding that Respondent recognize the Union as the exclu- sive representative of the drivers and daymen. This letter was received by Respondent on August 16, 1972. Foley also held another union meeting several days later which was attended by Hall and Tourigny. On Auglist 17, 1972, a petition was filed by the Union in Case 1-RC-12318 for an NLRB-conducted election in a unit of Respondent's drivers and attendants at its Spring- field and Holyoke locations. At or about the time the petition was filed, Goldman left Respondent's employment and Henry Hall, Jr., the other alleged discriminatee, took Goldman' s place assisting Ron- calli in the Union's campaign. Thereafter until the election both Roncalli and Hall actively sought to persuade their fellow employees to vote for the Union in the forthcoming election. On September 12, 1972,'a stipulation for certification upon consent election was entered into by the parties which was approved by the Regional Director for Region 1 on September 14, 1972. During August and September there is testimony, about which more will be said hereinafter, that Respondent's pres- ident, Soutiere, and its general manager , Donald P. Larivi- ere, spoke to individual employees with regard to the Union; also three or four employees went to Soutiere's of- fice of their own accord and confirmed to Soutiere that they were opposed to the Union. On September 20, Soutiere gave a speech to all employees in the unit in which he told them that it was Respondent's view that the employees did not need a union and that the Union could make them no promises. The Board-conducted election was held on September 26, 1972, and according to the final tally of ballots, the Union won by a vote of 6 to 4. No objections to election were filed and a Certification of Representative was issued, to the Union on October 5, 1972. The agreed upon unit of employ- ees for which the Union was certified as exclusive bargain- ing representative was "all regular crew chiefs, drivers, driver-mechanics and attendants but excluding casual em- ployees, part-time employees working less than 20 hours a week, office clerical employees, guards, professional em- ployees and supervisors as defined in the Act." On September 26, 1972, Respondent canceled a payroll deduction arrangement which it had provided Hall for more than a year. Also on September 26, Respondent declared a policy, to be effective September 27, that employees were no longer going to be permitted to keep pets on the company premises . On September 28, 1972, Hall was discharged. On September 28, Roncalli was transferred from Holyoke to Springfield and his employment ended on September 29, 1972. Also on September 29, 1972, Respondent issued a notice that effective that day employees would no longer be permitted to keep their personal automobiles inside the ga- rage on company premises. B. Respondent's Top Management The complaint alleges, the answer admits and I find that the Respondent's president, Soutiere, and its general man- ager, Lariviere, are and were, at all times material hereto, agents of the Respondent, acting in its behalf, and are su- pervisors within the meaning of Section 2(l1) of the Act. I further find that Soutiere and Lariviere, have the authority, inter alia, to hire and discharge employees and that both of them handle the implementation of Respondent's personnel policies.2 C. The Alleged 8(a)(1) Violations On or about August 18 or 20, 1972, Lariviere had a con- versation with employee Douglas Adams at the Dingle Club, a local bar on High Street in Holyoke , Massachusetts. During this conversation, Lariviere brought up the subject of the Union and asked Adams who had started it. Adams identified the organizers as Hall, Roncalli, Jerry Moore, and an employee by the name of Mike who had already left Respondent's employment. Lariviere then asked Adams how he proposed to vote in the upcoming election but Ad- ams gave him no answer. Lariviere also told Adams that 2 Soutiere so adnutted at the hearing. Thus at 558 of the transcript the following testimony by Soutiere appears. Q. And you rely on him [Lanviere] for the day to day operations of your ambulance service? A. Yes. Q Personnel policies? A. No, I would say we both do that., 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent was counting on Adams' vote because of favors done for Adams (rehiring Adams after a previous discharge and continuing Adams on the payroll during the period Adams' driver's license was suspended). Lariviere asked Adams several times in this conversation to vote "no" in the Board election. Lariviere also told Adams that Soutiere did not want the Union in the Company because it would only cause trouble and would go on strike after which Soutiere could declare bankruptcy and move to Laconia.3 Finally, Lariviere told Adams that Respondent had received a list from the "Federal Labor Board in Boston" saying that a union was starting at Respondent and that Adams' name headed the list 4 Several days after his employment by Respondent on September 9, 1972, Ronald Young was questioned by Souti- ere at the Springfield office and asked whether he, Young, had heard anything about the Union or whether anyone had spoken to him about it. Young advised Soutiere that Hall and Tourigny had come to his, Young's, house in an ambu- lance and discussed the Union and inquired about his feel- ings in the matter.' Sometime in late August or in September 1972, after Lari- viere returned from his vacation, Lariviere spoke to Hall and Tourigny at the Holyoke office. Lariviere advised Hall and Tourigny on this occasion that, if the Union got in, Soutiere wouldn't be able to pay union wages or benefits and that he might have to close up and move to Laconia, New Hampshire, where Soutiere had his other ambulance service, thus putting the Forest Park employees out of Work .6 On September 25, 1972, Lariviere again spoke to Adams at the Dingle Club after asking Adams to meet him there during an earlier telephone call. On this occasion Lariviere reminded Adams that Adams would be required to take a trip to Philadelphia that night. Lariviere exhorted Adams to get back to work for the election the following day because Adams vote was the deciding one and "they were counting on it." On September 26, 1972, the Union, as noted , won the Board-conducted election. Also on September 26, 1972, Soutiere sent a letter to Victor Rosenburg, an attorney in Springfield, Massachusetts, stating that Respondent would no longer deduct payments from Hall's salary, as it had in the past. The letter explained that the "deduction practice was being discontinued on that date due to "a change in Company policy." The arrangement had originally been made between Hall and Soutiere in July or August 1971 at Hall's request to enable Hall to satisfy an obligation to a creditor. No reasons for this change in company policy were offered by Soutiere at the hearing nor does the letter itself offer any reason for this change in policy. Again on September 26, a notice to all employees was put up stating that effective September 27, 1972, it was against company policy to have pets on company premises. Up to that time employee Douglas Adams had regularly kept a dog with him at Respondent's Holyoke office on those days when he was at work. After publication of this notice he was no longer able to do so and the dog was picked up by a dogcatcher. Soutiere testified at the hearing that the new policy against keeping dogs came about as the result of a com- plaint from the principal of a school around the corner from the Holyoke office that the dog was in the school and com- plaints from a tenant in the building that the dog was mess- ing and that the mess was smelling up the garage. Nothing serious was done about this matter, according to Soutiere, until one day he went to the Holyoke office and noticed that Roncalli also had a dog. Fearing that the practice of keeping dogs on the premises would increase, Soutiere published the instant notice. At the Holyoke office employees were also permitted to keep their cars inside the Respondent's garage until a notice was published on September 29, 1972, over Soutiere' s name, prohibiting this practice. No explanation of the withdrawal of this employee benefit was offered at the hearing: In his amended complaint the General Counsel also alleg- es that Respondent violated Section 8(a)(1) of the Act by notifying the Commonwealth of Massachusetts Division of Employment Security that Roncalli has resigned thereby disqualifying Roncalli from receiving unemployment com- pensation, whereas, the General Counsel contends , said em- ployee was discharged for union activities, I will deal with this allegation later in this Decision. 3'Soutiere also has an ambulance service in Laconia, New Hampshire. ° I make these findings on the basis of the credible and undisputed testimo- ny of Adams. Lariviere did not testify. I discredit Souttere's testimony that he, Soutiere, never discussed the Union with Lanviere or with anyone else except his wife andattorney . It seems to me unlikely that no such discussion would have occurred in the light of Soutiere 's admission, previously noted, that he and Lariviere both handled personnel policies. Also I found `Soutiere to be a defensive and argumentative witness who contradicted himself in his other testimony, as will appear. 51 make these findings based on the credible testimony of Young. I have already discredited Soutiere's statement that he did not discuss the Union with anyone except his wife and his lawyer. I also note that during Soutiere's speech to employees on September 20, Soutiere made a point of informing employees that they were not permitted to use company vehicles to solicit votes for the Union 61 make these findings on the basis of the credible and generally corrobo- rative testimony of Toungny and Hall. Although IatLplaced the incident in Idle August or after Lariviere returned 'rom his vacation, whereas Tourrgny said it occurred on September 23, 1972, I conclude from their highly similar description of the event that the incidents were one and the same that `it occurred at some tune between those dates in the manner found above. Again, as dieted, danviere did not testify. D. Concluding Findings Re: 8(a)(1) Allegations I find that Lariviere's questioning of Adams on August 18 or 20, 1972, and on September 25, 1972, about the union activities of his fellow employees and the way Adams ex- pected to vote in the forthcoming election, constituted un- lawful interrogation in violation of Section 8(a)(1) of the Act." Additionally I find coercive and violative of Section 8(a)(1), Lariviere's statement to Adams that Adams name headed a list supplied by the Board naming employees who had formed the Union. Even though `this statement did not imply surveillance of union activities, I find in the context of the conversation in which it occurred that it wascalculat- ed to leave a ,coercive impression. 7 See Essex Wire Corporation, d 88 NLRB 397, enfd : as modified 80 L1Uta1 3166 Qt.A. 6, 1972); Chris & Pitts of Hallywood Inca 196 NLRB 866. FOREST PARK AMBULANCE SERVICE 553 I further find that Soutiere's questioning of Ronald Young (several days after the latter's employment on Sep, tember 9, 1972), with regard to any attempts by his fellow employees to discuss the Union with him was likewise un- lawful interrogation in violation of Section 8(a)(1) of the Act .8 In making this finding I rely upon its occurrence in the context of Respondent's other unfair labor practices and the absence of any business justification for it. I find that Lariviere's statement to Adams on or about August 18 or 20, 1972, and Lariviere's statements to Hall and Tourigny on one occasion between late August and September 23, 1972, that Respondent would close down its operation and move to Laconia, New Hampshire, because Soutiere could,not afford to pay union wages, are unlawful threats to take reprisal against employees for their union activities in violation of Section 8(a)(1) of the Act .9 In mak- ing this finding I rely not only on the facts already recited in regard to these incidents but also on the absence of any indication that the Union at the time in question had prof- fered any specific bargaining demands upon Respondent and upon Soutiere's admission at the hearing that he did not make any inquiry during the union campaign as to what wages were noramlly demanded by the Union. I find that Respondent's cancellation of Hall's checkoff arrangement and employees' inside parking privileges were also reprisals against employees for their union activities in violation of Section 8(a)(1) of the Act. I make these findings of violation in view of the facts that: the cancellation of these preexisting benefits occurred just after the Union's victory in the Board-conducted election; no explanation was offered at the hearing or any other time for the with- drawal of these benefits; Soutiere was opposed to the Union, as he admitted at the hearing, and in the context of Respondent's other unfair labor practices. I do not find that the withdrawal of the privilege of keep- ing dogs on the premises violated Section 8(a)(1) of the Act. While the timing of the withdrawal of this privilege and Soutiere's opposition to the Union do not leave the matter free from doubt, Soutiere's explanation at the hearing that he feared abuse of the privilege based on Roncalli's taking advantage of it constitutes a reasonable business reason for changing management's policy in this regard.'0 E. The Alleged 8(a)(3) Violations 1. Hall Hall's extensive union activities have been recounted ear- lier in this Decision and, it may be recalled, Hall untimately became, along with Roncalli, the leader of the Union's orga- nizational campaign." There can be no question that man- s Chris & Pitts of Hollywood, supra. 9 See, e.g., Wisconsin Bearing Company, 193 NLRB 249; Morrison Cafete- rias Consolidated Inc., 148 NLRB 139, enfd. as modified 431 F.2d 254 (C A. 8, 1970); Valley Mold Company, Inc., 191 NLRB 498, ant d. as modified 467 F.2d 482 (C.A 6, 1972); Mademoiselle Shoppe, Inc., 199 NLRB 983. 10 Roncalli did not deny that he also brought a dog on the premises 11 In addition to his other activities I find that on September 27, 1972, Hall prepared a list of bargaining demands on a sheet of paper which Hall placed on his desk at Holyoke when he left on a call. I further find that Lanviere saw this list of demands when he, Lariviere, came to the Holyoke office, in agement was aware of Hall's participation, because Adams so informed Lariviere on August 18 or 20. Also Soutiere admitted at the hearing that he suspected that Hall favored the Union because Hall was not one of those employees who came to Soutiere's office to tell him of their opposition to the Union. Finally, it is clear that Respondent main- tained union animus at the time in question based on the -8(a)(1) violations found above and Soutiere's opposition to the Union admitted at the hearing. The foregoing findings of fact, coupled with the discharge of Hall, supply the elements of a prima facie showing that said discharge violated Section 8(a)(3) and (1) of the Act.12 However, since Respondent has advanced the affirmative defense that Hall was discharged for cause, the question becomes whether the General Counsel has established by a preponderance of the relevant evidence that Hall was, in fact, discharged for discriminatory reasons rather than for cause, as Respondent asserts. Hall began work with Respondent on January 3, 1971.13 He was thereafter continuously employed until his dis- charge on September 28, 1972. Hall was initially hired as an ambulance attendant but was promoted to the position of ambulance crew chief on June 13, 1971. Hall was an excel- lent worker, was the most highly trained ambulance atten- dant Respondent ever had in its employ and he also held the position of crew chief longer than any other employee ex- cept one.14 Soutiere, who was examined by the General Counsel un- der Section 43(b) of the Federal Rules of Civil Procedure at the beginning of the hearing, stated, however, that-four incidents-the last being the most serious-constituted the bases for his discharge of Hall, and Soutiere admitted at this point in his testimony that these were the only reasons for Hall's termination.15 I will treat with each of these incidents in the chronologi- cal order in which they occurred. a. The Gold Cross incident This incident occurred sometime about January or Feb- ruary 1972.16 In this incident Hall had an argument with drivers employed by Gold Cross Ambulance Service over Hall's complaint that they were answering a call in what Hall considered Respondent's "Holyoke territory." As the result of this incident, Hall purportedly exacerbated already Hall's absence, to deliver some billing sups which Hall had requested of Lanviere earlier in the day. Hall found the billing slips next to the list when Hall returned from his call. 12 Heck's Inc, 156 NLRB 760, 762, enfd. as modified 386 F.2d 317 (C.A. 4, 1967). 13 An issue arose at the hearing whether Hall, a Negro, was hired to resolve a complaint he had filed the the Massachusetts commission against discrimi- nation. My concern here, however, is to determine the basis for Fall's dis- charge, hene I find it unnecessary to resolve the question of the basis of his being hired. 141 make these findings on the basis of Soutiere's admissions at the hear- ing. s Soutiere, however, advanced additional reasons for the discharge when he testified during Respondent's case in chief, which will be discussed herein- after. 16 I base this conclusion on the testimony of McLaughlin, the operations manager of Gold Cross Ambulance Service, who seemed to memore certain of the date than Hall, who recalled it occurring in the last part of 1971,and Soutiere who thought it occurred in the summer of 1972. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bad feeling existing between Gold Cross and Respondent.17 I conclude, however, that this incident played no part in Respondent's decision to discharge Hall. No record was made of the matter; no further difficulties with Gold Cross appear to have developed; Soutiere admitted that he did not think of this incident until a few weeks before the hearing herein and the matter was not mentioned in Soutiere's affi- davit to the Board agent explaining his reasons for discharg- ing Hall. b. The High Street Pizza incident On February 11, 1972, shortly after 2 a.m., Hall and Stefancik took their ambulance to a pizza restaurant on High Street in Holyoke in answer to a call. When they got there they found a young woman, who had apparently lost control of herself, struggling with four police officers and customers. The police officers requested Hall and Stefancik to put this woman in a straitjacket and take her to the hospital. Hall informed the police that he did not have a straitjacket on this ambulance. Some discussion ensued dur- ing which the police repeated their request that a straitjacket be put on the woman. Hall and Stefancik did not refuse to use some other method to move the woman but the police insisted on a straitjacket. Finally, the woman was subdued and handcuffed by the four police officers and she was put into a police car which then drove off. Hall and Stefancik then left the premises.18 At some time during the course of this incident then Lt. McMullen of the Holyoke Police Department received a police radio call from one of the officers at the scene saying that the Forest Park Ambulance personnel would not move the woman. McMullen directed the officer to have the am- bulance attendants move the patient or he, McMullen, would complain to Soutiere. Sometime later the officers called McMullen from the hospital to report they had taken the woman there. McMullen then made a telephone com- plaint to Forest Park's answering service and a written com- plaint to his supervisor.19 No further action was taken by the police department in respect to this incident. While Soutiere requested a written report of it from Hall and told Hall that he, Soutiere, desired no problems with the police department, the matter was thereafter dropped. I conclude that Hall's explanation satisfied Soutiere at the time 20 and was not a causative factor in his discharge and 17 I discredit Soutiere's statement that he warned Hall that Hall would be discharged if he caused further trouble with Gold Cross, a warning Hall credibly denied. is The only two witnesses to this incident who appeared at the hearing were Hall and Stefancik. I make these findings based primarily on the testimony of Stefancik, a disinterested witness who appeared pursuant to subpena and who left Respondent's employ prior to the advent of the Union. Stefancik's testimony is corroborated in its essentials by that of Hall and by a written statement given to Respondent by Hall shortly after the incident. 19I make these findings on the basis of the testimony of McMullen, as corrected in his cross-examination , in which he describes the contacts as including only one radio report from the scene and one telephone call from the hospital. The written complaint to McMullen's supervisor was not put in evidence. 20 It does not appear that Stefancik was asked to make a report Nor was he advised of any complaint. it was not mentioned, in any event, when he was discharged. Moreover, even were I to accept the hearsay report of the incident instead of the, testimony of Hall and Stefancik- which I do not-I see no essential conflict between the radio report given' to McMullen from the officers at the scene and the explanation given by Hall to Soutiere and Hall's and Stefancik's testimony at the hearing. For the report can be reconciled with the versions of Hall and Stefancik in that the radio report does not purport to describe the entire conversation with Hall and Stefancik; i.e., they did in fact initially refuse to move the patient in a straitjacket, because they didn't have one. Finally, I note that no further written report was filed by McMullen with Respondent. c. The Providence Hospital incident On September 11, 1972, Hall made a suggestion to an unnamed secretary to Mrs. Margaret Mclnerny, director of social services as the hospital, that the hospital should not make calls to Respondent to move patients during the lunch hour because of the obvious conflict with their lunches and lunches at nursing homes to which they might be moved. The secretary informed Hall that she considered this a good idea and would mention it to Mclnerny. Mrs. Mclnerny did not speak to Hall.21 The secretary then apparently mentioned the suggestion to Mrs. Mclnerny who called Respondent and spoke to Lariviere. Mclnerny told Lariviere of the suggestion and inquired if lunchtime calls were causing a problem to Re- spondent and Lariviere answered that Respondent would take calls at that time. Lariviere asked if Hall's behavior was objectionable and Mrs.' Mclnerny told him it was not. In explaining the reasons Hall advanced for the suggestion, Mrs. Mclnerny added that Hall stated that such calls also interfered with his own lunch hour. Mrs. Mclnerny did not say she used the word complaint in her conversation with Larivierenor does Lariviere's report use that word. Soutiere himself did not use the word complaint in testifying to Lariviere's report of the matter. Mrs. McInerny 's full testi- mony indicates that her call to Lariviere might he consid- ered a complaint only insofar that she was questioning the authority of Hall to make such a suggestion. Soutiere and Lariviere then went to Respondent's Ho- lyoke office to discuss the matter with Hall. In the presence of Tourigny and Soutiere, Lariviere told Hall that Hall was, without authority to take such matters into his own hands and should not do so in the future without checking with management . To Hall's responding question whether any harm had been done Lariviere answered in the negative. 22 In further discussion of the matter Hall explained to Sou- tiere and Lariviere that his difficulty with lunch hours really related to moving patients at the Holyoke nursing home at lunchtime (to which apparently a patient from Providence 21 I make these findings on the basis of Hall's credible testimony. The secretary did not testify. I also find that speed in handling ambulance calls is essential inasmuch as Respondent operates the only ambulance in Ho- lyoke, a city with a population of over 50,000 people See 1972 World Alma- nac, published by Newspaper Enterprise Association, Inc., p. 173, of which the parties agreed at the hearing that I might take judicial notice. 211 make these findings on the basis of the credible testimony of Hall. Lanviere, as noted previously, did not testify. FOREST PARK AMBULANCE SERVICE 555 Hospital might be taken) because there was only one eleva- tor at that home and it was crowded at lunchtime. Hall said it took too long to wait for the elevator. Soutiere told Hall that, if the elevator could not be used, Hall would take a patient down the stairs on a stretcher. Hall repeated that he would wait for the elevator. To this Soutiere rejoined that if Hall did not do what he was told, i.e., use the stairs, Soutiere would find someone who would 23 In view of the foregoing, I am unable to conclude that this incident involved a "complaint with respect to Hall. It involved rather a simple practical suggestion by Hall to personnel of Providence Hospital to consider a change in its ambulance call procedure and a subsequent action by Sou- tiere and Lariviere to clarify with Hall his authority to make suggestions of this type to Respondent's clients and also to clarify with Hall his responsibility to carry patients down the stairs when an elevator was full. d. The Bertram incident In the early hours of the morning of September 26, 1972, Officers Kelly and Sullivan of the Holyoke Police Depart- ment responded to a call at the apartment of Robert A. Bertram, 173 Beech Street, Holyoke, to put someone back in bed. After arriving at the Bertram apartment one of the officers called Sgt. Edwin McMahon of the same depart- ment who also came to the scene and found Mr. Bertram sitting motionless on the floor in the apartment bathroom. McMahon felt Bertram's arm, thought Bertram had a pulse, and noted that Bertram was still warm. Officers Kelly and Sullivan advised McMahon that they had also called Re- spondent to send an ambulance. Thereafter Hall and Tour- ^gly arrived at the scene and Hall checked Mr. Bertram for vital signs. On Mr. Bertram's face and chest as well as on the floor were numerous blood clots. Finding no evidence of life, but noting that the patient was cool, his eyes dilated, and his face a bluish color, Hall asked McMahon whether the medical examiner should not be called-the purpose being to have the latter pronounce Mr. Bertram dead.24 McMahon instead directed Hall to take Bertram to the Holyoke Hospital. Hall, somewhat,"put out" by this in- struction repeated the question but was given the same or- der. Hall then proceeded to place the body on the stretcher, wrapped it in a blanket from head to toe (covering the head) and he and Tourigny took the body downstairs head first, put it in the ambulance and drove to Holyoke Hospital some 10 city blocks away. Upon arrival at the hospital, Mr. Bertram was pro- nounced dead by Dr. David P. Hebert. Mr. Bertram was, in fact, already dead when he was covered up by Hall in the apartment.26 On September 26, as previously noted, the Board-con- ducted election was held and the ballot count was in favor of the Union. Also on the morning of September 27,27 Captain Smith of the Holyoke Police Department telephoned Soutiere and advised Soutiere that, at about 2:30 a.m. on September 26, 1972, Hall, in handling an ambulance matter, had given a police officer a hard time and, by his actions, Hall had pronounced a patient dead. Smith advised Soutiere that he 23 These findings are consistent with the testimony of Soutiere and Toung- ny and not inconsistent with that of Hall. I do not credit Soutiere 's testimony that he informed Hall on this occasion that if Respondent got "another complaint" on Hall, Hall would be discharged. Soutiere, as I have already noted, was a defensive and argumentative witness and he equivocated in this area of his testimony-first saying Hall denied the Providence Hospital incident, then saying that Hall explained that what Hall was referring partic- ularly to "was the problems at the Holyoke Nursing Home." Finally, as will appear, Soutiere contradicted himself as to the reasons for Hall's discharge, first assigning five reasons in his examination by the General Counsel, then reducing the reasons to four in the same examination and, finally, when Respondent put on its case in chief, assigning additional reasons for his termination of Hall not mentioned in his prior examination. Hall credibly denied receiving this "one more complaint" warning and Tourigny testified, that, if such a warning was given, it was not made in his presence-this despite Soutiere's statement that Toungny was "four or five feet away" when the instant discussion took place. And, in view of the foregoing, I attach no weight to Respondent's written record that a "one more complaint" warning was given on this occasion. I also note that Soutiere admitted that he did not give this written warning to Hall. I do not credit Soutiere's testimony that he told Hall he was going to put a warning in writing. Even were Ito assign weight to this record entry, which I have not done, I observe that the entry was made after the Union's demand for recognition and after Lariviere knew of Hall's union activity and Respondent had already committed at least one violation of Section 8(a)(1), in which Lariviere told Adams that Respondent would move to New Hamp- shire, if the Union came in. In reaching my conclusion, which will appear, that this incident played no significant role in Hall's discharge I find, based on the credible testimony of Hall and Mrs. Mclnerny, that Hall arrived at Providence Hospital at 11:30 on September 11, 1972, and spoke to Mrs. Mclnerny's secretary thereafter. Lanviere's report ofMclnemy's subsequent call to him-a report purported- ly made in the regular course of business-is dated I I a.m. on September 11, 1972, at least I half hour pnor to the time such call could have been made. Moreover, I am constrained to observed that this matter was not of such significant consequence as to cause discharge See Paschall Truck Lines, Inc, 190 NLRB 691. 24 Both Hall and Toungny thought that Bertram was dead. 25 I make these findings primarily on the basis of the credible testimony of Sgt. McMahon, whose version was essentially corroborated in the full testimony of Tourigny. Officer Kelly who remained outside the apartment house (to meet the ambulance) from the time Hall and Tourigny arrived until they left also credibly testified that the body was completely covered when it was removed from tbebuilding by Tourigny and Hall. I do not credit Hall's testimony that he merely covered Mr. Bertram-up to his nose with blankets and put a towel over the rest of the head. 1 found. Hall very defensive and evasive in this aspect of his testimony except with respect to his description of the body which I credit. 26 I make this finding on the basis of the following., Hall testified credibly that it took him 7 to 10 minutes from the time he'got to the Bertram apart- ment until he got the body to the hospital. From this 10 minutes maximum it would seem realistic to subtract at least 2 minutes for Hall's taking of vital signs and his verbal exchange with McMahon, which would reduce the time remaining for loading the body on the stretcher and moving it to the hospital to a period of from 5 to 8 minutes (McMahon consistently , testified that the scene at the apartment after the arrival of the ambulance men consumed "maybe 5 minutes ") The trip to the hospital, took 3 to 4 minutes, according to Hall (this period is, of course, included in the 5 to 8 minutes estimate, supra ). After arrival at the hospital it took 30 seconds before the body was received by Dr. Hebert. Hence from the time the body was wrapped on the stretcher until Dr. Hebert saw it, 5-1/2 to 8-1/2 minutes had lapsed. Dr. Hebert, after being qualified as a medical expert, testified that at the time he viewed the body it had been dead at least 15 minutes and probably longer and that it would not have been possible for a pulse to be felt 10 minutes previously. The cause of death was a massive abdominal hemorrhage drawing the blood supply to a level below the point at which life could be sustained. I was much impressed by Dr. Hebert as a witness. Among other things to which he testified, he estimated Mr. Bertram's age at death as being between 75 and 80. The police report indicated Bertram's age as 78. 27 I make this finding on the basis of Soutiere's admission in his affidavit. The date, September 27, is also consistent with the date Lariviere spoke to Tourigny about the matter, as will appear, as well as the date Lanviere spoke to Sgt. McMahon regarding the same matter. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was going to investigate the incident and Soutiere stated he intended to do the same. On September 27, Lariviere telephoned Tourigny and asked for an oral report on the Bertram matter which Tour- igny gave him. At Lariviere's request, Tourigny later also submitted a written report of the incident. In the afternoon of September 27, Hall prepared a list of bargaining demands which, as previously found, were seen by Lariviere. Also on September 27, Lariviere obtained a telephone report of the Bertram incident from Sgt. McMahon which Lariviere re- duced to writing.28 On the morning of September 28, Lariviere telephoned Hall at the Holyoke office and directed Hall to report to Soutiere's office in Springfield which was on Hall's way home from work. Hall went to the Springfield office that afternoon and spoke to Lariviere who told Hall he was being terminated because of a report by Sgt. McMahon that Hall was impolite, had pronounced a patient dead, and that Hall's relationship with the Holyoke Police Department was not good. Before leaving, Hall told Lariviere that he, Hall, knew he was being discharged because of the Union. Larivi- ere made no response. Hall then went home, got his uniforms, returned to the office, and asked to speak to Soutiere. Hall met with Souti- ere and Lariviere in Lariviere's office and asked what Sgt. McMahon had said. Soutiere then read from a document in his hand (Lariviere's report of his telephone call to Sgt. McMahon) and mentioned essentially the same matters pre- viously disclosed to Hall by Lariviere. Hall told Soutiere that the report was untrue and stated that he, Hall, knew that the his discharge was "on account of the Union." Souti- ere made no response to this accusation 29 Hall then requested a copy of the document from which Soutiere was reading and Soutiere refused, suggesting that Hall go to the police department. Soutiere did not ask for a written report from Hall. The next day Hall went to the police department and spoke to the chief of police and Lt. O'Connor, asking to see a copy of the letter Sgt. McMahon sent to Respondent. (Hall thought the Lariviere report of the Bertram incident from which Soutiere had read the previous day was a letter from Sgt. McMahon). Hall was advised that no letter had been sent to Respondent in this matter. Hall then went to Captain Smith of the Holyoke police department who con- firmed that he, Smith, had made a report to Respondent about the Bertram incident . Smith refused to tell Hall what he had told Respondent and suggested that Hall go back to Respondent. Hall went back to Respondent's office and spoke to Lari- viere who confirmed that the matter was first reported to 28 According to Lariviere 's report, Hall told McMahon the patient was dead . At the hearing , McMahon credibly denied that Hall made such a statement. 29 I make these last two findings of the credible testimony of Hall . Roncalli also corroborated Hall's making of the accusation to Soutiere on this occa- sion . Soutiere did not deny this accusation nor did he deny that he failed to respond to it. In answer to his counsel 's question whether Soutiere had discussed the Union with Hall when Soutiere read the report to Hall on this occasion , Soutiere answered merely "I didn 't." (See tr. p. 49). In view of Hall 's credible denial , I do not credit Soutiere's testimony that he told Hall on this occasion that he had previously warned Hall that Hall would be discharged if Respondent got one more complaint on him. Respondent in a telephone call to Soutiere, but that if Hall desired any further information Hall wuld have to speak to Soutiere. Hall then left. That night Hall went to see Soutiere at the latter's home and tried to get his job back. Hall sought to explain that he had not declared Bertram dead nor was he impolite to the police, but Soutiere was unmoved. There was also some discussion about Hall returning some bandages and other ambulance supplies which Hall claimed he had purchased but which Soutiere thought were stolen. Hall stated he had purchased these materials but had not turned in the slips for reimbursement. Soutiere stated he could not prove whether the materials were his or Hall's, so he told Hall to keep them. There was also a discussion of Hall's union activities and Soutiere told Hall that he felt Hall was a union adherent because Hall had not knocked on his, Soutiere's, office door to tell Soutiere that Hall was opposed to the Union as other employees had done. Soutiere also told Hall that the latter's union activities were an act of disloyalty to Soutiere and that Soutiere considered this a "knife in the back." Hall was told he would not be rehired and he left 30 Since his discharge, Hall has caused the filing of the charge herein, has sought unemployment benefits, and has also undertaken legal action with the Massachusetts com- mission against discrimination and the Federal Equal Em- ployment Opportunity Commission. He has not been rehired. e. Concluding findings with respect to Hall In explaining the reasons for Hall's discharge, Soutiere stated at the hearing that the Bertram incident was the most serious and that Hall, on that occasion, violated two compa- ny rules-he argued with the police department and he declared a person dead. The Company's written rules were put in evidence and do not say anything about these two alleged maxims. On the other hand, as a practical matter, Respondent's employees have had disagreements with the police and have not been discharged. As to the matter of handling a person as a corpse, several witnesses including Hall, Tourigny, Neissner (another em- ployee), and Officer Kelly stated that the standard proce- dureis that only a medical examiner may declare a person dead and that he will not be treated as dead until so de- clared. But the standard procedure is not always followed. Thus, Hall credibly testified to an incident in which he completely covered a corpse on the street solely on the instructions of a police officer. Adams credibly testified to two incidents which have occurred since Hall's discharge, in 30 These findings are based on the essentially consistent versions of the incident provided by Hall and Soutiere . Soutiere admitted the "knocking on the door" discussion and did not deny making the "knife in the back" allegation . I discredit Soutiere' s statement that this event took place on September 26, inasmuch as the record makes it abundantly clear that Hall was not discharged until September 28. I find it unnecessary to pass on Soutiere's claim that he reminded Hall on this occasion that when the Provi- dence Hospital incident occurred , he, Soutiere, told Hall that Hall would be discharged if one more complaint was made against him . While Hall did not deny that Soutiere made the foregoing remark in Soutiere's home , it is clear that the discharge had already taken place and the instant remark , even if made , would have been superfluous. FOREST PARK AMBULANCE SERVICE 557 which the Holyoke police refused Adams' assistance in helping a patient, after the ambulance had been called, for the reason' that, in the judgment of the police, the patient was already dead. In one of these incidents, when Adams confronted the police and a bystander, the body was already covered. In neither incident had the medical examiner ar- rived.31 Officer Kelly, a straightforward witness, whose tes- timony has been credited elsewhere in this Decision, stated that when he has been called to the scene of an accident at which he has found the body cold, he calls the medical examiner and lets the latter decide how to proceed. The inescapable conclusion from this statement is that Officer Kelly would not take the precaution of also.calling Respon- dent to send the ambulance on which Respondent carries resuscitating equipment. I conclude on the basis of the foregoing that the Holyoke Police-when'called to the scene of an incident like this one-can, on their own authority, decide: to call the medi- cal examiner (and not to call an ambulance); to refuse the quasi-medical assistance of the ambulance attendants when an ambulance arrives, or to allow or even direct the com- plete covering of a body believed to be dead. In these cir- cumstances-and bearing in mind that Bertram was dead-what Respondent's defense boils down to is that Hall erred, not because he completely covered Bertram, but for the reason that he did so in disagreement with the Holyoke police causing the police to complain to Respondent. But Respondent has received complaints from the Ho- lyoke police department about other employees and there is no showing that any were ever discharged. Moreover, Hall, on one occasion in the spring of 1971, directly disobeyed the orders of Officer Golden of the Holyoke police department to remove a patient immediately from the scene of an acci- dent. Hall feared the patient had a broken back and insisted on placing a board underneath him before moving him. For taking this precaution Hall received verbal abuse from Golden. The patient did, in fact, have a broken back and Soutiere wrote a letter to the Holyoke police department complaining of Golden's action and prior problems Re- spondent had with Golden. In handling various disputes with the Holyoke police department, Soutiere conceded at the hearing, he had found them to be at least "part wrong." In view of all the foregoing, I am not persuaded that the Bertram incident was the substantial motivating factor in Hall's discharge. And, having already rejected the other incidents as reasons for this action, I find rather that Hall was terminated because of his union activities and that Respondent thereby violated Section 8(a)(3) and (1) of the Act. I make this finding in consideration of the established facts that Hall was an active union adherent, that this was well known to Respondent and Respondent maintained an animus against the Union so strong that Lariviere told Hall and Tourigny that Respondent would shut down and put employees out of work if the Union came in. I also rely on 31 Adams was so concerned about this incident that he reported it to Lanviere stating that he, Adams, did not want to get fired, as had Hall because of what happened Lanviere indicated no concern. Adams also wrote a letter to Union Representative Foley explaining what had happened on this occasion. the timing of Hall's discharge on the heels of the Union's election victory,32 Respondent's shifting bases to explain the discharge,33 its other unfair labor practices, and the failure to deny, at the time, Hall's accusation to Lariviere and Soutiere that Hall was being discharged because of the Union. 34 I am also constrained to observe that Hall was already targeted for reprisal by Respondent before his discharge. For, as I have found, Hall's payment checkoff to a creditor was canceled on September 26-the day the Union won the electionbut before Respondent received Captain Smith's complaint on September 27 about the Bertram matter. 2. Roncalh Roncalli's union activities have been heretofore recount- ed. He was, along with Goldman, an original leader in the union movement and he continued in this role throughout. His activities were, of course, well known to Respondent because Adams told Lariviere of them-and Respondent's admitted opposition to the Union and its independent 8(a)(1) violations through the activities of Soutiere and'Lari- viere have already been found. The General Counsel's theory with regard to Roncalli is not simply that he was discharged because of his union activities, as in Hall's case, but rather that Roncalli was constructively discharged by Respondent, that is, he was 32 See, e.g., Master Appliance Corporation, 158 NLRB 1009 33 See, e.g., Ideal Donut Shop, 148 NLRB 236, 246, enfd. 347 F.2d 498 (C.A. 7, 1965). I find no merit in Soutiere's further reasons for Hall's discharge- Hall's alleged disregard for the truth, his claimed poor relations with his fellow employees, his alleged theft of bandages and other incidents in which Hall's conduct was questioned. I reject these reasons if only on the basis that Soutiere's sworn testimony was that the four incidents discussed, supra, in the body of this Decision, were the sole reasons for Hall's discharge. Moreover these alleged further reasons were not mentioned to Hall when he was dis- charged, nor, apparently, were they documented in Hall's personnel file, as were other matters Also, two of the employees, with whom Hall purportedly had disagreements, testified in Hall's behalf at the hearing. 34 It seems to me that an innocent employer, in the act of -discharging an employee for just cause, would readily deny that the discharge was for an unlawful reason. I deem Lariviere's and Soutiere's failure to answer this accusation, made to each, to be an admission that it was true. See Mc- Cornuck, Evidence §270 (2 ed 1972) "Admission by Conduct ( b) Silence," p 651, et seq.; Cf United Paperworkers and Paperworkers, AFL-CIO, 160 NLRB 1108, 1110, enfd. as modified 397 F.2d 153 (C.A. 6, 1968). I have considered the cases cited by Respondent in its brief and find them distinguishable on their facts. In Guyan Valley Hospital, Inc., 198 NLRB No. 28, the Board affirmed the Trial Examiner's conclusion that employee Glandon's misconduct was such that the Employer was required to take prompt disciplinary action to avoid adverse publicity. Here, however, the actions of Hall, in his complained of handling of a corpse on a police call were not substantially different from sumlar incidents which did not occasion repercussions. In Lone Star Industries, Inc., 195 NLRB 351, the Board af- firmed the Trial Examiner's conclusion that Bailey was discharged after it had been reported that he had refused the legitunate request of a customer and made derogatory comments about one of the Respondent's own officials. Here, however, Hall carved out his instructions and has not been shown to have made derogatory remarks about Respondent' s management. In Airlines Parking, Inc, 196 NLRB 1018, the Board concluded that Gardner was dis- charged after being caught sleeping in violation of a recent express company prohibition of such conduct and in Joseph C. Asher d/b/a The Meat Cleaver, 200 NLRB No. 130, Stephenson was discharged in the context of slow service to a customer even though the Respondent had a published rule that slow service would be cause for discharge. Here Respondent has no written rule regarding the handling of a corpse and the practice of handling corpses during the course of police calls has been, as I have found, so vaned that I am unable to conclude that Hall's actions were inconsistent therewith. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transferred to more arduous duties because of his support of the Union and then quit as the result of the more onerous work thus unlawfully assigned him. Roncalli began his employment with Respondent as an ambulance attendant trainee at the Springfield office on May 29, 1972. Thereafter he worked in the Springfield office primarily performing in-house janitorial work and serving on the second (backup) ambulance when the first ambu- lance was on call. In August 1972, he received an automatic promotion to ambulance attendant with an increase in pay. Sometime later in August or early September he was trans- ferred to Holyoke to replace Alves, who left to take other employment. At Holyoke, Roncalli became essentially a full-time attendant on the single ambulance at that location performing minor cleaning work on the ambulance or in the office when the ambulance was not in service. Since the Holyoke job required shift work, Roncalli received in Sep- tember the further increase in pay which goes with the shift schedule. During the summer Roncalli had completed the standard Red-Cross course and had made arrangements to take the advanced course. On September 25, 1972, the day prior to the Board-con- ducted election, Lariviere and Roncalli had a conversation in Lariviere's car while Lariviere was taking Roncalli home. Roncalli asked Lariviere on this occasion what Roncalli's future status was going to be because Roncalli had heard that O'Connor might be transferred to Holyoke. Lariviere stated that he, Lariviere, had not yet spoken to Soutiere about this matter, but Lariviere asked Roncalli, in any event, whether Roncalli would prefer shift work in Holyoke or his prior assignment as a dayman in Springfield. Roncalli explained to Lariviere that he, Roncalli, would prefer to continue on shift work on the ambulance, since he enjoyed these duties much more than his work as a dayman at Springfield which required that he spend "99 (%) percent of the time" on the end of a broom. Lariviere could not give Roncalli an answer, he said, until the matter was discussed with Soutiere. On the next day, September 26, several hours after the Union won the Board election, Lariviere called Roncalli and in a curt manner told Roncalli to report to work on September 28 at Springfield as a dayman (the 27th being Roncalli's day off). Roncalli reported to Soutiere at Springfield on September 28. The latter then told Roncalli to wash the garage win- dows-the dirt being caked on35 Roncalli finished this work about noon when Lariviere told him, on Soutiere's instruc- tion, that, Roncalli would clean and wash the showroom floor, which Roncalli did. The next morning, September 29, six cans of paint were brought in and Roncalli told a number of his fellow employ- ees including Neissner that he expected that he would next be called on to paint. He continued that if he were asked to do so he would refuse, since he felt that he had no qualifica- tion to be a painter.36 Shortly thereafter Soutiere.confronted Roncalli and told him there was a rumor that he was going to quit if ordered to paint. Roncalli denied the rumor. Souti- ere then told Roncalli and another employee to paint the floor and Roncalli refused. Several minutes later Roncalli went into Soutiere's office to discuss the matter further. He informed Soutiere that he was not quitting-he was merely refusing to paint which he did not consider part of his duties. Soutiere insisted that it was part of his duties and that this had been explained to him when he was hired. Roncalli rejoined that he was told only to do general cleaning work, which, in Roncalli's judg- ment, did not include painting. Roncalli told Soutiere that he liked working on the ambulance and this is what he preferred. At this point Soutiere asked Roncalli if he had obtained standard and advanced first aid cards and Roncal- li stated that he had only obtained a standard card and was about to begin the advanced course. Soutiere told Roncalli that he was told, when hired, that he had 3 months to get both cards. Roncalli denied that he had been told this when hired. Roncalli again refused to paint the floor and Soutiere told him to turn in his uniforms and draw his pay 37 Shortly thereafter, Roncalli completed an application for a similar job with Harris Ambulance in East Longmeadow. In so doing, he explained to Goggin, a Harris Ambulance official, the circumstances of his, Roncalli's, termination by Respondent. Goggin advised Roncalli to call back in 2 days when he would be informed when to report. Two days later Roncalli called Goggin who said that Mr. Harris had spo- ken to Soutiere and Harris told Goggin not to hire Roncalli. Harris now works for Respondent and Soutiere, as he ad- mitted in his affidavit, purchased Harris Ambulance on October 19, 1972. Roncalli has not been rehired by Respondent nor has he been hired by any other ambulance service. Concluding Findings Re Roncalli Soutiere described Roncalli as a lazy and "lousy" worker. These characteristics were not, however, mentioned to Ron- calli at the time of his discharge and, in any event, Roncalli was admittedly continued in Respondent's employ after Soutiere claimed he first noticed such alleged characteris- tics. And Roncalli received a so-called automatic 3-month increase (after 2-1/2 months) and was thereafter given the more responsible and higher paying position at Holyoke of regular shift work on the only ambulance at that location. Moreover, Soutiere's opinion of Roncalli did not apparently jibe with that of Lariviere who expressed surprise and heart- break when hearing of Roncalli's separation and who agreed to give Roncalli an employment recommendation "on the q.t.," if Roncalli needed one. Hence the question is narrowed to whether Roncalli, in effect, terminated his own employment by refusing to carry out a legitimate order or whether he was constructively discharged by being transferred to disagreeable work in punishment for his union activities-disagreeable work 35 Soutiere at first testified he didn 't know why he had waited so long to do so, and he subsequently did refuse, I find it unnecessary to resolve this get the windows washed but later stated this was the first available time to credibility issue. have it done. 37 These findings are made upon the testimony of Soutiere and Roncalli 36 Neissner testified that Roncalli said he was going to quit if asked to which was not contradictory. Soutiere did not mention the part of the discus- paint . Since Roncalli admitted he said he would refuse to paint if asked to sion dealing with Roncalli 's purported failure to obtain both first aid cards. FOREST PARK AMBULANCE SERVICE 1 559 , from which he could be expected to quit. I conclude that the latter is the correct answer. Soutiere claimed at the hearing that Roncalli volunteered to transfer to Holyoke and remain there until Respondent could find a replacement for him. Even assuming the indefi- nite nature of this transfer, I am unable to conclude that a replacement was, in fact, "found" for him, For the replacement, William O'Connor, Jr., was already working at the Springfield office with his father, O'Connor, Senior. And O'Connor, Junior, did not have either his stan- dard or advanced first aid cards. I conclude rather that Roncalli's retransfer to Springfield and more arduous duties, constituted a constructive dis- charge. I do not find that Respondent had any plans for this retransfer until the Union won the Board election. I reach this conclusion on the basis of all the circumstanc- es. First I note that O'Connor was already working but was less trained than Roncalli. Also, as I have found, when Respondent changed its policy on September 26, with re- spect to keeping pets on the premises, it did so only because Roncalli, like Adams, was then keeping a dog at Holyoke- the only location where this practice was shown to have existed. Soutiere admitted he had done nothing about the complaints regarding Adams' dog and did not change the company policy until Roncalli also brought in his dog. What need would there have been to change the policy if Respondent had already determined to transfer Roncalli back to Holyoke? I also note that Respondent in its haste to return Roncalli to more arduous duties as a dayman neglected to reduce his wages from that of a higher paid shift man. After being retransferred to Springfield, Roncalli was im- mediately put on more c.nerous work. I am not persuaded, as Soutiere claimed, that this was the first opportunity to wash the windows on which the dirt was caked on. Also, on the day after returning to Springfield, Roncalli was assigned to do painting work after Respondent became aware that he would refuse that assignment. I find, in view of all the foregoing, that Respondent trans- ferred Roncalli back to Springfield with the intentions of assigning him objectionable and onerous work in the expec- tation that this would cause him to quit. For Respondent knew-from Roncalli's conversation with Lariviere on Sep- tember 25-that Roncalli did not like to be a janitor. And after Roncalli returned to Springfield, it is clear, janitorial work-of an arduous variety-is exactly what he was as- signed to do along with a painting job which Respondent then knew he would refuse.38 I find, accordingly, that Roncalli was constructively dis- charged on September 29, 1972, in violation of Section 38 Even if Respondent had intended to use Roncalli on this assignment before Soutiere heard that Roncalli would refuse to paint, I note that there is a serious question whether any painting need have been done at this time. For, I find, on the basis of Neissner's testimony, that Respondent began and completed all the initial painting inside and outside this building in the summer of 1971, not long after it purchased the premises (Neissner has since September 1972, done touch up work on windows where the paint was peeling). I therefore do not believe Soutiere's statement that he intended "all along" to paint the floor which he admitted had never been painted before. In these circumstances, I conclude that the timing of the painting work was, in any event, intended to be a part of Respondent's postelection reprisals against its employees for their union activities. 8(a)(3) and (1) of the Act.39 In making this finding, I rely upon Roncalli's extensive union activities, Respondent's awareness thereof, the timing of Roncalli's transfer and discharge on the heels of the Union's election victory, and Respondent's animus as demonstrated by the unfair labor practices already found which included a threat to shut down and put employees out of work if the Union came in. I also rely on Respondent's belated attempts to buttress that discharge by giving additional reasons for it at the hearing which were not mentioned at the time Roncalli was termi- nated 40 and the fact that with the discharges of Hall and Roncalli Respondent had then rid itself of the remaining principal in-plant leaders of the Union's organizational campaign.41 CONCLUSIONS OF LAw 1. The Respondent is engaged in commerce and the Union is a labor organization all within the meaning of the Act. 2. By discharging Henry Hall, Jr., and by constructively discharging Michael F. Roncalli, because of their member- ship in, support of, and activities in behalf of the Union, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By its discharge of Hall, its constructive discharge of Roncalli; by coercively interrogating Adams concerning his membership in, attitude toward, and activities in behalf of the Union as well as the union activities of Adams' fellow employees; by coercively interrogating Ronald Young about attempts of his fellow employees to discuss the Union with him; by threatening employees that Respondent would shut down and go out of business if the Union came in; by cancelling employees' preexisting benefits in reprisal for their union activities; by implying, that it had means of identifying employees who participated in union activities; and by informing the state unemployment agency that Ron- calli quit without notice, whereas he was instead construc- tively discharged because of his union activities, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 39 See Dodson's Market, Inc d/b/a Dodson IGA Foodliner, 194 NLRB 192 (The constructive discharge of Vander Yacht, at 203, et seq. ); American Auto-Felt Corporation, 158 NLRB 1628; Avondale Shipyards, Inc., 162 NLRB 421, 428 (Forbes), enfd. as modified 391 F.2d 207 (C.A 5, 1968). 40 See cases cited, supra, in support of the concluding findings in Hall's discharge. 41 I further find on the basis of a document received without objection at the hearing, styled "The Commonwealth of Massachusetts, Division of Em- ployment Security, Employer's Statement," that the Employer informed the instant state agency that Roncalli "Quit without notice," thus disqualifying him from receiving unemployment compensation. Since I have found that Respondent constructively discharged Roncalli in violation of Section 8(aX3) and (1) of the Act, I conclude that Respondent further violated Section 8(a)(1) of the Act by thus incorrectly advising the State agency. See Orkin Exterminating Company ofFlonda, Inc, 152 NLRB 83, 84, fn. 3, enfd. 379 F.2d 972 (C.A. 5, 1967). 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY The recommended Order will contain the conventional provisions in cases involving findings of interference, re- straint, coercion and unlawful discharge, in violation of Section 8(a)(1) and (3) of the Act. This will require Respon- dent to cease and desist from the unfair labor practices found; to restore benefits unlawfully taken away from em- ployees; to notify the state unemployment agency that the Board has found that Roncalli was unlawfully discharged because of his union activities; to offer reinstatement with backpay to Henry Hall, Jr., and Michael F. Roncalli, and to post a notice to that effect. In accordance with usual requirements, reinstatement of those employees will be to their former or substantially equivalent positions (Hall as a crew chief and Roncalli as a shift man) without prejudice to their seniority or other rights and privileges. Hall and Roncalli shall be made whole for earnings they may have suffered by reason of the discrimination against them by payment to each of a sum of money equal to that which he normally would have,earned from the date of the initial discrimination against him to the date of the offer of rein- statement, less net earnings, if any, during such period, to be computed in the manner prescribed in F. , W, Woolworth Company, 90 NLRB 289, with 6 percent interest thereon as prescribed by Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended, in view of the nature of the unfair labor practices in which Respondent has engaged (see N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 19.41) ), that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:42 ORDER The Respondent , United States Corporation, d/b/a For- est Park Ambulance Service , its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership and activities in New Eng- land Joint Board , Retail, Wholesale and Department Store Union, AFL-CIO, or in any other labor organization, by discriminating in regard to the hire and tenure of employ- ment, or in any other manner in regard to any term and condition of employment, of any of the Respondent's em- ployees, in order to discourage union membership or activi- ties. (b) Coercively interrogating employees concerning their own or their fellow employees ' union membership, activities or sympathies ; threatening to go out of business if the em- ployees organize a union ; withdrawing employee benefits in reprisal for their union activities ; creating the impression among employees that it has ways or means of identifying employees who participate in union activities ; informing the Massachusetts- Division of Employment Security that em- ployees quit without notice when, in fact , they were con- structively discharged to punish them for their union activities; or in any other manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Henry Hall, Jr., and Michael F. Roncalli imme- diate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered as a result of the discri- minatory discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Restore "in garage" employee parking privileges and, if Hall accepts reinstatement, restore the payroll withhold- mg arrangement in favor of Hall's creditor, if Hall so re- quests. (d) Notify the Massachusetts Division of Employment Security, in writing, that the National Labor Relations Board has found in this proceeding that Michael F. Roncalli was constructively discharged by Respondent in order to punish him for his union activities and that he did not quit without notice. (e) Post at its place of business in Holyoke and Spring- field, Massachusetts, copies of the attached notice marked "Appendix." 43 Copies of this notice, on forms provided by the Regional Director for Region 1, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60'consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 1, in writing, within 20 days from the date of the receipt of this Order, what steps the Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor prac- tices not found herein. 42 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objections thereto shall be deemed waived for all purposes. 43 In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." FOREST PARK AMBULANCE SERVICE 561 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evi- dence, it has been decided that we, United Service Corpora- tion d/b/a Forest Park Ambulance Service, have violated the National Labor Relations Act and we have been or- dered to post this notice. The National Labor Relations Act gives you, as employ- ees, certain rights, including the right to self-organization, to form, join or help unions ; and to bargain collectively through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT interrogate you concerning your mem- bership, activities, or sympathies or those of your fel- low employees. WE WILL NOT try to make our employees believe that we have ways of finding out whether you participated in union activities. WE WILL NOT do anything that interferes with any. of your rights above. WE WILL NOT discharge you, take away any of your privileges, close down our business or take any reprisal action against any of you because you join, support, or engage in organizational activities on behalf of New England Joint Board, Retail, Wholesale and Depart- ment Store Union, AFL-CIO, or any other union. WE WILL NOT report to state agencies that employees have quit without notice when in fact they have been constructively discharged because of their union activi- ties. WE WILL offer to reinstate Henry Hall, Jr., and Mi- chael F. Roncalli to their respective jobs with full sen- iority and all other rights and privileges, as the Board has found that they were discharged because they sup- ported the organizational campaign of the above- named Union. WE WILL also make up all pay Henry Hall, Jr., and Michael F. Roncalli lost because of their discharges with 6 percent interest. WE WILL restore Henry Hall's credit arrangement if he accepts reemployment and we will restore employee garage parking privileges. WE WILL notify the Commonwealth of Massachusetts Division of Employment Security, in writing, that the National Labor Relations Board has determined that Michael F. Roncalli was constructively discharged by the Company in order to punish him for his union activities and that he did not resign without notice. Dated By UNITED SERVICE CORPORATION d/b/a FOREST PARK AMBULANCE SERVICE (Representative) (Title) 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 direct- ed to the Board's Office, 7th Floor-Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Tele- phone 617-223-3300.