Meda-Care Ambulance, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1987

285 N.L.R.B. 471 (N.L.R.B. 1987)

MEDA-CARE AMBULANCE 471
Meda-Care Ambulance , Inc:, and 1199W,. National
Union of Hospital and Health Care Employees,
RWDSU , AFL-CIO and Federation of Emer-
gency Medical Technicians, Wisconsin Federa-
tion of Nurses and Health Professionals , Ameri-
can Federation of Teachers , AFL-CIO. Cases
30-CA-6609, 30-CA-7030, 30-CA-7132, 30-
CA-7132-2, 30-CA-7134, 30-CA-7398, 30-
CA4648, 30-CA-7672, and 30-CA-7830
31 August 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 21 and 30 December 1983 Administrative
Law Judge Joel A. Harmatz issued the attached
decisions.' The Respondent filed exceptions and a
supporting brief. The General Counsel and one of
the Charging Parties also filed exceptions and sup-
porting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions ,3 to modify the remedy,4 and to adopt
the recommended Order5 as modified.
The Union wrote a letter to the Respondent
dated 23 May 1983 informing the Respondent that
the union representative to whom the Respondent
objected was no longer involved in negotiations
and requesting that bargaining resume. The Re-
spondent replied by 25 May 1983 letter. The judge
construed the 28 June 1983 complaint in Case 30-
CA-7830 to contain the sole allegation that the Re-
spondent in its 25 May 1983 letter unlawfully con-
ditioned bargaining upon the Union's published re-
traction of a Milwaukee Labor Press article critical
of the Respondent. The judge dismissed the com-
plaint, finding that the 25 May letter merely stated
that the Respondent fully expected a retraction and
did not deliver an ultimatum concerning the article.
The General Counsel excepts to this dismissal on
the ground that the judge overlooked the portion
of the complaint alleging that by the 25 May letter
the Respondent had unlawfully conditioned bar-
gaining on the Union's agreement to the inclusion
of a loyalty clause in the contract. We find merit in
the General Counsel's contention and therefore re-
verse the severance and dismissal of the complaint
as it pertains to the loyalty-clause allegation.6
I The judge granted the General Counsel's motion to consolidate Case
30-CA-7830 with Cases 30-CA-6609, at al
8 The Charging Party has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), eiifd. 188 F2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
3 The judge declined to reach the merits of the alleged violations of
Sec 8(a)(1) in the complaint in Case 30-CA-6609 The charges underly-
ing, these allegations had been the subject of an informal settlement agree-
ment 'that was set aside by the Regional Director on 1 I February 1983.
The General Counsel did not file a formal exception to the judge's treat-
ment of the allegations but urges the Board to "review for itself' the
judge's "unjustified and improper accusations" and argues that the Re-
gional Director'had "every right" to set aside the settlement Although
we do not adopt the.judge's characterization of the General Counsel's de-
cision to issue a complaint on the previously settled charges, we find in
view of the circumstances and disposition of this case that no useful pur-
pose would be served by further proceedings on the allegations based on
those charges. Accordingly, we affirm the judge' s dismissal of the com-
plaint in Case 30-CA-6609.
The Charging Party has excepted to, inter alia, the judge's conclusion
that the discharge of ambulance driver Robert Galewski did not violate
Sec 8(a)(3) The judge credited the testimony of the Respondent's gener-
al manager Russell Barczak, as to the circumstances of Galewski's dis-
charge. Barczak testified that Galewski was discharged for a series of in-
cidents reported by coworkers, including most notably Galewski's failure
to use red lights and siren on an emergency Code 3 call for a nonrespon-
sive patient, parking in a management space, and refusing responsibility
for missing equipment. The Charging Party does not except to the
judge's finding that the parking and missing equipment incidents were
violations of clear work rules The record reveals that Barczak investigat-
ed Galewski's excuses , allowed Galewski the opportunity to submit a
written explanation for not using red lights and siren on an emergency
call, and suggested that Galewski brink; a representative to the first inves-
tigatory meeting on that incident Barczak testified that he concluded,
after investigation, that Galewski's excuses were not genuine. In addition,
Barczak testified that Galewski thwarted management 's efforts to resolve
charges against him by treating these efforts as a joke and being unrea-
sonable. Finally, Barczak testified that he believed at the time that Ga-
lewski's attitude and course of conduct was a calculated challenge to
Barczak 's authority as the new general manager Galewski confirmed that
he told Barczak and Company Attorney Peck that he would not neces-
sarily use red lights and siren on a Code 3 call even if it were clear com-
pany policy to do so. In light of the credited testimony of General Man-
ager Barczak, and the record as a whole, we agree with the judge that
the Respondent has successfully carried its burden of rebutting the Gen-
eral Counsel's prima facie case under Wright Line, 251 NLRB 1083
(1980)
° Interest will be computed in accordance with our decision in New
Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts
accrued prior to 1 January 1987 (the effective date of the 1986 amend-
ment to 26 U S C § 6621) shall be computed in accordance with Florida
Steel Corp., 231 NLRB 651 (1977)
5 We agree with the judge's conclusion that Galewski's presence on
the Union's bargaining panel while he also holds a position soliciting
business for one of the Respondent's competitors creates a disabling con-
flict of interest privileging the Respondent's withdrawal from negotia-
tions The Respondent's obligation to bargain with the Union resumes if
and when Galewski resigns from the bargaining panel or this conflict of
interest is otherwise removed The General Counsel moves the Board to
reopen the record for receipt of a 30 January 1984 letter from the Union
informing the Respondent that Galewski is no longer employed by its
competitor. As this matter is more appropriately raised during the com-
pliance stage of this proceeding, the motion is denied
5 In dismissing Case 30-CA-7830 the judge concluded, inter alia, that
the doctrine of collateral estoppel applied to the complaint allegations
based on the Board 's prior denial of the General Counsel's request for
special permission to appeal the judge's denial of her motion to reopen
the record in Cases 30-CA-6609, et al with respect to the Respondent's
25 May 1983 letter to the Union The judge further based his dismissal of
Case 30-CA-7830 on the grounds of "administrative convenience " We
disagree with both of the judge's conclusions. The Board's denial of the
General Counsel's interlocutory request constituted neither a determina-
tion on the merits nor a determination that the General Counsel was
Continued
285 NLRB No. 50
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We agree with the judge that it is unnecessary to
direct a hearing on the allegation that the 25 May
1983 letter unlawfully conditions bargaining on the
Union's acceptance of the loyalty clause. The Re-
spondent does not disavow authorship of the letter
in its answer to the complaint in Case 30-CA-7830
and admits that the letter constitutes a continuing
refusal to bargain. The letter clearly expresses on
its face the Respondent's position that the Union's
agreement to a loyalty clause is a condition prece-
dent to further negotiations.
The loyalty clause proposed by the Respondent,
requiring the employees and their representatives
to use their best efforts to promote the Respond-
ent's interests, is not a mandatory subject of bar-
gaining . Cf. Salvation Army of Massachusetts, 271
NLRB 195, 198-199 (1984) (Chairman Dotson dis-
senting on other grounds) (religious mission clause
does not bear direct relationship to wages, hours,
working conditions, thus not a mandatory subject
of bargaining); Hall Tank Co., 214 NLRB 995
(1974) (union liability for work stoppage). It is a
violation of the duty to bargain in good faith to
hold negotiations hostage to a demand for a non-
mandatory subject. Operating Engineers Local 542
(York County), 216 NLRB 408, 410 (1975), enfd.
532 F.2d 902 (3d Cir. 1976); Operating Engineers
Local 12 (AGC), 187 NLRB 430, 432 (1970). Ac-
cordingly, we conclude that the Respondent violat-
ed Section 8(a)(5) by its 25 May 1983 letter to the
Union, as alleged in the 28 June 1983 complaint.'
barred from litigating the matter of the 25 May letter based on the issu-
ance of a new complaint and, therefore, the doctrine of collateral estop-
pel is inapplicable Further, contrary to the judge, we find that the com-
plaint in Case 30-CA-7830, to the extent it involved the portion of the 25
May letter in which the Respondent conditioned further bargaining on
the Union's agreement to a loyalty clause, constituted a new cause of
action and that there exists no basis for dismissing that portion of the
complaint on the grounds of "administrative convenience"
Chairman Dotson agrees that the judge erroneously overlooked the
portion of the complaint in Case 30-CA-7830 alleging that the Respond-
ent unlawfully conditioned bargaining on the Union ' s agreement to the
inclusion of a loyalty clause in the contract The Chairman finds this
error to be sufficient reason in itself to reverse the judge's dismissal of the
complaint Therefore, the Chairman finds it unnecessary to join his col-
leagues in their discussion of the additional reasons offered by the judge
for dismissing the complaint in question
° In the attached decision of 30 December 1983 in Cases 30-CA-6609,
et at the judge concluded that the Respondent had unilaterally curtailed
negotiations until, inter alia, the Union agreed to a proposed loyalty
clause The judge apparently based this conclusion on his finding that
during the bargaining session of 20 October 1982, at which the Respond-
ent withdrew from negotiations because of employee handbilling and
picketing and the Milwaukee Labor Press article , the Respondent also
told the Union that it would make no wage proposal until the Union
agreed to the inclusion of a loyalty clause in the contract However, as of
the 20 October meeting the Respondent had merely proposed the loyalty
clause It did not take the position that it would make no wage proposal
other than the Federal minimum if the Union did not agree to the clause
until bargaining resumed on 20 January 1983 The judge concluded that
the Respondent 's position on the clause at the 20 January meeting and
until the Respondent 's April 1983 withdrawal from negotiations constitut-
ed hard bargaining but was not a violation of the Act We nevertheless
adopt the judge's Order requiring the Respondent to cease and desist
The judge concluded that the Respondent by Su-
pervisor Linda Weidemann interrogated ambulance
technician Ralph Lisowe in violation of Section
8(a)(1) of the Act. Weidemann asked Lisowe if he
had signed an authorization card and given it to
the union representative and what his feelings were
about the Union.
Interrogation of employees is not unlawful per
se. In determining whether or not an interrogation
violates Section 8(a)(1), the Board looks at wheth-
er, under all the circumstances, the interrogation
reasonably tends to interfere with, restrain, or
coerce employees in the exercise of Section 7
rights. Rossmore House, 269 NLRB 1176 (1984).8
We do not agree that Weidemann's questioning
violated the Act because the surrounding circum-
stances indicate that it was not coercive. Weide-
mann was an employee working as a dispatcher
who assumed supervisory duties only part time. In-
plant organizer Galewski testified that he gave
Weidemann an authorization card when attempting
to organize the dispatchers. Employee Lund testi-
fied that she gave Weidemann a union memoran-
dum and did not think of Weidemann as a supervi-
sor or someone who would report union activity to
management. Weidemann's questions arose during
an impromptu conversation between Weidemann
and Lisowe when they found themselves alone to-
gether in the dispatcher's office. To hold that spon-
taneous questioning during a casual conversation
by a low-level supervisor who has regular work-re-
lated contact with employees is unlawful is to
ignore the realities of the workplace. See Rossmore
House, supra; Sunnyvale Medical Clinic, 277 NLRB
1217 (1985). Accordingly we shall delete the refer-
ence to interrogation from the judge's recommend-
ed Order.9
from refusing to negotiate until the Union agrees to the loyalty clause
because we have found in the consolidated proceeding in Case 30-CA-
7830 that by its 25 May 1983 letter to the Union the Respondent so con-
ditioned further bargaining
Rossmore House issued subsequent to the judge 's decision
Contrary to his colleagues, Member Babson would find that Supervi-
sor Weideman's interrogation of employee Lisowe violated Sec 8(a)(1)
Thus, applying Rossmore House and Sunnyvale, Member Babson con-
cludes that under all the circumstances here Weidmann's questioning of
Lisowe reasonably tended to interfere with, restrain, or coerce the em-
ployee Sec 7 rights In so doing, Member Babson emphasizes the specific
nature of Weidemann ' s questions and the facts the questioning occurred
in the dispatcher's office where Weidemann served in a part-time capac-
ity as a supervisor He further notes the absence of evidence that Lisowe
was a known and open union adherent or that Lisowe did not consider
Weidemann to be a supervisor or someone who would report union ac-
tivity to management Given these circumstances, and because he finds
none of the other factors relied on by his colleagues sufficient to negate
the conclusion that Weidemann's interrogation reasonably tended to be
coercive, Member Babson would adopt the judge's finding of a violation
MEDA-CARE AMBULANCE
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Meda-Care Ambulance, Inc., Milwaukee,
Wisconsin, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Delete paragraph 1(a) and reletter the subse-
quent paragraphs.
2. Substitute the attached notice for that of the
administrative law judge.
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities,
WE WILL NOT refuse to bargain collectively and
in good faith with Federation of Emergency Medi-
cal Technicians, Wisconsin Federation of Nurses
and Health Professionals, American Federation of
Teachers, AFL-CIO as the exclusive statutory col-
lective-bargaining representative of our employees
in the unit set forth below:
All emergency technicians employed by the
employer at its facilities located at 9721 W.
Greenfield Avenue, W, Allis, Wisconsin and
2515 W. Vliet Street, Milwaukee, Wisconsin;
but excluding all guards'and supervisors as de-
fined in the Act.
WE WILL NOT in derogation of union status as
exclusive representative unilaterally alter your
terms and conditions of work without first notify-
ing and bargaining with the Union.
WE WILL NOT refuse, or delay unreasonably, on
request of the Union, in submitting information
necessary to the performance of that Union's duty
to represent you in collective-bargaining negotia-
tions, or the administration of any collective-bar-
gaining agreement reached.
473
WE WILL NOT terminate or suspend collective-
bargaining negotiations because you elect to
engage in activity protected by Section 7 of the
National Labor Relations Act.
WE WILL NOT in like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make you whole for any losses you
may have suffered as a result of our change in
health and medical benefit carriers, with interest.
MEDA-CARE AMBULANCE, INC.
DECISION AND ORDER SEVERING CASE
AND DISMISSING COMPLAINT
JOEL A. HARMATZ, Administrative Law Judge. On
August 4, 1983, the complaint dated July 28, 1983, in this
proceeding was consolidated by my order with pending
Cases 30-CA-6609, 30-CA-7030, 30-CA-7132, 30-CA-
7132-2, 30-CA-7134, 30-CA-7134-2, 30-CA-7398, 30-
CA-7648, 30-CA-7672. Contemporaneous therewith, the
parties were directed to show cause why the instant
complaint should not be severed and dismissed. Thereaf-
ter, timely responses were filed on behalf of the General
Counsel, the Respondent, and the Charging Party.
On the entire record in this proceeding, 2 including the
responses to the Order to Show Cause, it is found as fol-
lows
FINDINGS OF FACT
A. The instant complaint represents an additional
chapter in a fiercely contested, ongoing labor dispute
marred by a crossfire or recrimination dating back to the
early summer of 1981 . At least 10 separate unfair labor
practice charges have been filed against the Respondent
and no less than 4 complaints have issued charging Re-
spondent with various unfair labor practices . The issues
in two complaints, and portions of a third were the sub-
ject of an evidentiary hearing before me in Milwaukee,
Wisconsin , on May 9, 10, 11, 12, and 13, 1983.2 Consid-
ered therein , inter alia, was a complaint dated April 28,
1983, charging that Respondent violated Section 8(a)(5)
and (1) by its failure to bargain in good faith in several
particulars , ' including, inter alga, the conditioning of fur-
ther bargaining on the Union's agreement to Respond-
ent's proposed loyalty clause , and by its refusal to bar-
gain until Robert Galewskl 's removal as a member of the
Union's negotiating team.
B. At the threshold of the present controversy is the
fact that following close of the aforesaid hearing and on
1 Attached as an Appendix [omitted from publication] is an index of
exhibits which constitutes the entire record in Case 30-CA-7830 All
constituent documents were either issued by me referred to mutually by
the General Counsel and Respondent, or received in due course by me
under conditions raising an inference of authenticity sufficiently strong to
displace with need for additional hearing Nonprobative hearsay elements
within said documents have not been relied on
" A fourth Loinpl.unt in Case 30-CA-6746 was recently resolved by
the Board Ihiough alfirmative of findings of unlawful dnenmonatious
against Respondein. 266 NLRB 1208 (1983)
474 ' DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
May 23, 1983, FEMT, the Charging Party herein, wrote
Respondent, addressing one of the aforedescribed condi-
tions by indicating that "Mr. Galewski will not be par-
ticipating in any contract negotiations, be privy to any
information during the negotiations, and will not have
any position to set policies or procedures of the local."3
On this basis, the Union requested a resumption of fur-
ther contract negotiations, proposing specific meeting
dates. (See ALJ Exh. 1.)
C. Thereafter on May 25, 1983, Barton M. Peck, Re-
spondent's counsel, responded as follows:
This will acknowledge receipt of your letter on
May 23, 1983 and your expression of interest in
continuing negotiations.
Your committee has taken issue with our posi-
tion, that as a condition precedent to continued ne-
gotiations your committee must agree to and be
found by the loyalty clause provision 'which we
have submitted to you.
This issue was, in part, the subject of our May 9-
13 hearing before the NLRB. We will not deviate
from this position.
We also fully expect that you will be publishing a
retraction of the disloyal statements which have ap-
peared in the October 14 issue of The Milwaukee
Labor Press.
When you have demonstrated that you are will-
ing to negotiate in a lawful and proper manner, then
and only then, will we be in a position to sit down
with you at the bargaining table.4
D. In response, on June 6, 1983, FEMT filed a new
unfair labor practice charge alleging as follows:
Employer has on or about May 25, 1983, refused to
bargain by imposition of additional conditions for
returning to the bargaining table.5
E. On June 10, 1983, the General Counsel filed with
me a motion to reopen the record in Cases 30-CA-6609,
30-CA-7030, 30-CA-7132, 30-CA-7132-2, 30-CA-7134,
30-CA-7134-2, 30-CA-7398, 30-CA-7468, and 30-CA-
7672, which acknowledged the filing of the new unfair
labor practice charge mentioned above, and defined the
facts to be litigated as follows:
By letter dated May 25, 1983, Respondent's counsel,
Barton M. Peck, continued to insist that as a condi-
tion precedent to continued negotiations, the Union
agree to be found by the "loyalty clause," stated
that Respondent fully expected a published retrac-
tion of the October 14, 1982 Labor Press article,
and concluded "when you have demonstrated that
you are willing to negotiate in a lawful and proper
manner, then and only then, will we be in a position
to sit down with you at the bargaining table." [Em-
phasis added.]
That letter, however, did indicate somewhat curiously that "Mr. Ga-
lewski will participate in the Public Relations Committee of the
Local "
4 See ALJ Exh 2
6 See ALJ Exh. 3
In support of the motion, the General Counsel argued
broadly and somewhat vaguely as follows:
General Counsel submits said evidence demon-
strates Respondent's reasons for refusing to meet
and bargain with the Union constitute a "sham" and
that said evidence should be received into the
Record so that it may be weighed with the existing
Record evidence in determining whether Respond-
ent has violated Section 8(a)(1) and (5) of the Act.6
F. On June 14, 1983, the Respondent submitted a state-
ment pertaining to the motion to reopen, which included
the following declaration:
[B]oth parties acknowledge that the Respondent has
refused to bargain during the period following the
October 7, 1982, bargaining session unless the Union
has agreed to a loyalty pledge.7
G. On June 14, 1983, I issued a ruling denying in its
entirety the General Counsel's motion to reopen the
record, stating as follows:
Having duly considered the matter, it is concluded
that said offer does not relate to any unfair labor
practices on which issue is joined under the plead-
ings in this case, that it is in no sense relevant to the
assessment of those issues, and that it will have no
effect upon any remedy which might be deemed ap-
propriate herein.8
H. On June 24, 1983, the General Counsel sought re-
versal of said ruling by filing a "Request to the Board
for Special Permission to Appeal," stating as grounds
therefore, in material part as follows:
By letter to the Union dated May 25, 1983, and
in direct response to the Union's May 23 letter, Re-
spondent continued to refuse to meet and negotiate
without the Union first agreeing to the loyalty
clause.
A new situation has been created. Galewski is no
longer president of the Union and has nothing to do
with contract negotiations. It strongly appears Re-
spondent is refusing to meet and bargain for an un-
justifiable reason and the Judge should have the op-
portunity to rule with respect to this new situation.
Certainly, all the parties should have a ruling which
meets the present situation, that is, that the Re-
spondent is now refusing to meet and bargain pur-
portedly solely because of the refusal of the Union
to agree to the loyalty clause. The Region, of
course, could issue a new complaint, but such an
action would be bureaucratic nonsense.9
By telegraphic order dated July 12, 1983, the Board
denied the General Counsel's request for special permis-
sion to appeal the above ruling. i o
c See ALJ Exh. 4
' See ALJ Exh. 5.
8 See ALJ Exh 6
9 See ALJ Exh 7
tO See ALJ Exh 8
MEDA-CARE AMBULANCE
On July 18, 1983, posthearing briefs were filed by the
parties in Cases 30-CA-6609, 30-CA-7030, 30-CA-7132,
30-CA-7132-2, 30-CA-7134, 30-CA-7134-2, 30-CA-
7398, 30-CA-7648, and 30-CA-7672.
K. On July 28, 1983, the Regional Director for Region
30 issued a new complaint in Case 30-CA-7830 alleging
the following conduct as the sole unfair labor practice
under interdict:
By letter dated May 25, 1983, and in direct response
to FEMT's May 23, 1983 letter . . . Respondent
continued in its refusal 1o meet and bargain with
FEMT and placed an illegal condition on bargain-
ing by demanding a published retraction of the Oc-
tober 14, 1982, Labor Press newspaper article. I IL
L. On July 29, 1983, the General Counsel filed a
motion to reopen record, consolidate cases and schedule
hearing, urging consolidation of Case 30-CA-7830 with
Cases 30-CA-6609, 30-CA-7030, 30-CA-7132, 30-CA-
7132-2, 30-CA-7134, 30-CA--7134-2, 30-CA-7398, 30-
CA-7648, 30-CA-7672; and additional hearing there-
on.12
M. On August 1, 1983, Respondent urged denial of the
aforesaid motion on the following grounds:13
1. That General Counsel's motion is admittedly pre-
mised upon issues which have been litigated previ-
ously; hence,
a. Litigating a claimed "continuing violation"
would result in relitigating the same issues ad in-
finitum or as long as the Union keeps reasserting
its position prior to Your Honor's decision.
b. Such litigation would result in a needless
and improper delay of a decision i n a matter in
which the General Counsel is asserting two in-
stances'of back-pay remedy against the Respond-
ent.
3. General Counsel's "new" case is, simply put, not
only a malicious abuse of the legal process, but is
also a furtherance of his unrelenting harassment of
the Respondent. The General Counsel is clearly at-
tempting to exploit the vehicle of continuous litiga-
tion as a means of forcing his will upon the Re-
spondent in order to deprive the Respondent of the
benefit of Your Honor's decision in the case which
has been closed.
4. There is nothing advanced by General Counsel in
his current Motion which has not been considered
by your Honor in General Counsel's prior Motion.
As General Counsel admits, not only have you re-
jected that Motion, but the Board has also rejected
it vis a vis its response to General Counsel's effort to
appeal your decision.
11 See ALJ Exh 10(a). Note that in its "Request for Special Permis-
sion to Appeal," ALJ Exh. 7, the General Counsel placed a different in-
terpretation on that letter. It was therein stated that, in view of the May
25 letter, "Respondent is now refusing to meet and bargain . solely
because of the refusal of the Union to agree to the loyalty clause."
12 See ALA Exh 11(a).
19 See ALA Exh. 11(b)
475
N. On August 4, 1983, I issued an order consolidating
cases and directing parties to show to cause as to why
Case 30-CA-7830 should not be servered and dismissed.
That document raised two issues concerning propriety
of the complaint in Case 30-CA-7830:
1. The first related to the validity-and the General
Counsel's request for further hearing in that from all ap-
pearences there was no material dispute of fact as the
new complaint was based exclusively upon Respondent's
letter of May 25, 1983. Indeed, the General Counsel in
ALJ Exh. 7 appears to concede that parole testimony,
beyond authentication of documents, would not throw
light on the issues raised. Nonetheless, the proponents of
the complaint were afforded the opportunity to substanti-
ate their claim as to need for hearing, with the parties
being admonished in that respect by me as follows:
Although it should go without saying, my experi-
ence in connection with' this proceeding makes it
necessary to importune counsel as to accountability
for the factual accuracy of representations made in
response to this direction to show cause. In order
that the issues presented herein be fully and fairly
evaluated at a minimum cost to all concerned, it is
also found necessary to urge that counsel concen-
trate on specifics while avoiding unfair characteriza-
tion and misleading generality.
2. The second question posed by the show cause order
related to the legal sufficiency of the complaint in Case
30-CA-7830. In that respect, the parties were specifical-
ly advised as to my tentative views that the complaint in
Case 30-CA-7830 should be served and dismissed on the
following reasoning:
The processing of the complaint in Case 30-CA-
7830 would countenance a multiplicity of actions
which would only serve to forestall an appropriate
remedy on any refusal to bargain substantiated by
the litigation which has already transpired. Thus,
the earlier denial of the General Counsel's motion
to reopen was, in part, founded upon the fact that
Respondent's May 25 letter ". . . will have no
effect upon any remedy which might be deemed ap-
propriate herein," or, more specifically, that it is cu-
mulative and could have no substantive remedial
impact upon the rights and obligations of the par-
ties. In other words, if, as tried in the hearing al-
ready concluded on May 13, 1983, Respondent is
able to maintain , as a matter of law, that it was
privileged under N.L.R.B. v. Local Union No. 12129,
International Brotherhood of Electrical Workers (Jef-
ferson Standard Broadcasting Co.), 346 U.S. 464, to
use "self help" to protect itself against disloyal acts
and their effects, such a result would validate the
stance taken by Respondent on May 25, 1983. On
the other hand, if Respondent was not privileged to
restrict the bargaining process in this fashion, the
appropriate Board remedy based upon already liti-
gated events, would redress any related limitations
imposed on the bargaining process, including any
and all suggested by its letter of May 25, 1983.
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The complaint in Case No. 30-CA-7830 reminds
of the proverbial "second bite of the apple." Quite
plainly, while the charge was pending, the General
Counsel opted initially against issuance of a com-
plaint thereon, electing instead to file a motion to
reopen the record. However, only after the parties,
including the General Counsel, had filed post-hear-
ing briefs, did the Regional Director take steps to
render those filings obsolete by an attempt to re-
shape the proceeding through belated issuance of a
new complaint. The spectre of "sandbagging" clear-
ly emerges. For such a course was adopted only
after the Board approved the denial of the motion
to reopen. Thus, it is not farfetched to conclude
that the new complaint merely represents a vehicle
for relitigation of matters underlying a prior adverse
ruling, a result which raises serious question under
the doctrine of collateral estoppel.
In sum, the complaint in Case 30-CA-7830, seeks
to relitigate existing issues on cumulative facts and
its processing would be inimical to statutory poli-
cies and purposes in that it would only prolong,
through additional hearing and briefing, resolution
of the basic underlying dispute, thereby subjecting
the parties to a duplication of effort, unnecessary
expense and the naturally exascerbating effects of
unresolved controversy.14
0. Thereafter, responses to the show cause order were
filed on behalf of the General Counse115 the Charging
Party,16 and Respondent. i 7
Concluding Findings
A. The Need for Further Hearing
Even if further action in the instant complaint were
warranted, it is clear from the responses of the parties
and the entire record herein that Case 30-CA-7830 en-
tails no dispute of fact warranting an evidentiary hearing.
Thus, there is not merit in the General Counsel's posi-
tion that Respondent cannot prevail absent a hearing. In
this regard, the General Counsel points to the denial in
Respondent's answer to the allegation that "Galewski re-
signed his Union presidency, [that he] would participate
in any contract negotiations or be privy to any informa-
tion during negotiations and [that he] would not have
any position to set policy or procedures within the
Union.""" The General Counsel goes on to argue that
the issue of "whether Respondent commits an unfair
labor practice, or is privileged to refuse to bargain on ac-
count of Galewski's status depends on the resloution of
this fractual issue." This assertion can only be explained
as a failure of the General Counsel to grasp the sub-
14 See ALJ Exh 12(a)
15 See ALJ Exh 12(b)
18 See ALJ Exh. 12(c)
17 See ALJ Exh 12(d).
18 Although beside the point, Respondents denial is somewhat under-
standable For FEMT's May 23, 1983 letter asserts that Galewski would
continue to participate "in the Public Relations Committee of the Local "
This rightfully would raise suspicion as to how Galewski would have
utility in that capacity while remaining insulated from the single-most mi-
portant issue facing the Local, namely, the contract negotiations.
stance of its own complaint. By virtue thereof, the unfair
labor practice under scrunity is narrowly circumscribed.
No material issue whatever is raised with respect to Re-
spondent's position concerning Galewski. Instead the
complaint in Case 30-CA-7830 is limited to an allegation
that Respondent violated Section 8(a)(5) by placing an il-
legal condition on bargaining "by demanding a published
retraction of the October 14, 1982 Labor Press newspa-
per article." Neither this, nor any other view advanced
by the General Counsel supports necessity for hearing on
this proceeding.
The Charging Party in furtherance of the request for
hearing takes an entirely different, but equally distorted,
view of the issue raised by the instant complaint. It
labors under the misapprehension that Respondent's in-
sistence on a loyalty clause is under attack and then pro-
ceeds to argue that new factual issues are raised by Re-
spondent's May 25 letter in that respect. In this connec-
tion, the Charging Party observes that there was no evi-
dence at the concluded hearing in Case 30-CA-6609,
etc., that Respondent refused to meet because FEMT re-
fused to accept its loyalty proposals. Contrary to the
Charging Party, the latter was the subject of allegations
in both complaints in Case 30-CA-6609, etc. It was in
fact litigated at the closed hearing wherein testimony re-
vealed and Respondent now concedes that "the Re-
spondent has refused to bargain during the period fol-
lowing the October 7, 1982 bargaining session unless the
Union has agreed to a loyalty pledge."19 Thus any new
factual issue arising from the May 25 letter at best would
be cumulative to evidence heretofore developed.
Since June 10, 1983, when the General Counsel first
sought to reopen the record on the basis of the May 25
letter, not a single rational ground has been advanced for
assembling the parties in Milwaukee for further hearing.
B. The Merits
Although hearing is palpably unnecessary, it is my fur-
ther conclusion the that complaint in Case 30 -CA-7830,
on at least three separate and distinct grounds, fails to
state a cause of action on which relief under the Act
might be granted.
1. First, it will be recalled that the show cause order
herein was addressed to the single allegation of unlawful
conduct herein ; namely, that Respondent violated Sec-
tion 8(a)(5) and ( 1) by conditioning bargaining upon the
Union's retraction of the October 14, 1982 article in the
Milwaukee Labor Press. Through that mechanism the
parties were given the opportunity to address the proce-
dural and substantive deficiencies underlying that allega-
tion . All were informed that tentatively it was, my view
that the complaint , on indisputable fact, lacked factual
substantiation. In this connection , the show cause order
recited as follows:
The complaint in Case 30-CA-7830 is rooted in
the position taken by Respondent in its letter of
May 25, 1983.
19 See ALJ Exh 5
MEDA-CARE AMBULANCE 477
That letter merely reiterates Respondent's posi-
tion based on its conduct since March 9, 1983, that
further bargaining would be conditioned upon the
Union's acceptance of Respondent's proposed "loy-
alty clause"-matter which is numbered among the
allegations in the existing consolidated- compolaint
issued on April 28, 1983, which is not subject to
any material conflict in testimony . . . and which
has been fully litigated.
Said letter does not substantiate that, as of May
25, 1983, Respondent was insisting, as a pre-condi-
tion for the resumption of bargaining, that the Union
publish a retraction of the disloyal statements which
appeared in the October 14 issue of the Milwaukee
Labor Press.20
The General Counsel now disputes the foregoing, ar-
guing that this was not the case, as the Employer, on the
face of the pleadings, admitted to the illegal condition.
This, according _ to the General Counsel, was evident
from Respondent's answer wherein the critical "retrac-
tion" allegation was countered by the following:
[Respondent] admits that . . . [it] . . . has contin-
ued to refuse to bargain with FEMT as set forth in
the complaint, but denies that the "condition" was
illegal or, for that matter, unalterable.
From this, the General Counsel theorizes that "Re-
spondent's answer does not deny that it is a condition,
only that it is not an illegal condition." The General
Counsel reinforces this view by the further assertion that
the answer admits that Respondent's position on "retrac-
tion" was "unalterable." I cannot agree with that inter-
pretation. According to a fair reading, the answer on its
face, denies any unalterable demand. I subscribe to the
more balanced and accurate definition of the pleadings
expressed by the Respondent as follows:
[W]e dispute General Counsel's self-serving inter-
pretation of Respondent's answer Implicit in the
Respondent's reference to the General Counsel's use
of the term "condition," which was deliberately
stated in quotes, is the fact that Respondent did not
necessarily adopt this interpretation as his own.
Moreover, a condition by definition is unalterable.
If subject to alteration or withdrawn, it 'becomes a
mere proposal. Hence by stating that the "condi-
tion" was not unalterable, Respondent was clearly
denying that the General Counsel's interpretation of
Respondent's May 25 letter was correct.2 i Accord-
ingly, there is no merit in the General Counsel's
claim that the answer included a concession that
Respondent, on May 25, 1983, conditioned resump-
tion of bargaining upon retraction of the news arti-
cle, or any issue which has not been litigated previ-
ously under prior complaints in Cases No. 30-CA-
6609, etc.
The Charging Party seeks to salvage the instant com-
plaint on grounds quite distinct from any raised by the
General Counsel in the complaint or elsewhere . In this
respect , Respondent 's letter of July 28 , 1983,22 is claimed
to be indicative of the fact on May 25 , 1983, the latter
engaged in "escalation" of unlawful conduct. In this re-
spect, the Charging Party points to a statement in the
May 25 letter as follows:
Your committee has taken issue with our position,
that ,as a condition precedent to continued negotia-
tions, your committee must agree to and be bound
by the loyalty clause provision which we have sub-
mitted . . . . This issue was, in part, the subject of
our May 9-13 hearing before the NLRB . We will
not deviate from this position.
The Charging Party argues that there is a difference be-
tween what has heretofore been litigated fully at the
hearing in Case 30-CA-6690 , etc., and the above-cited
statement by Respondent . As the argument goes, the ear-
lier issue related to Respondent 's insistence "on the
Union 's prior agreement" to the loyalty clause and its
"enshrinement in a collective-bargaining agreement."
From the above quote, the Charging Party argues that
Respondent now insists that "members of the negotiating
committee themselves , agree to and be bound by the
clause, independent of the existence or nonexistence of a
collective-bargaining agreement ." The Charging Party's
interpretation to the effect that Respondent now seeks an
independent side , agreement is allegedly substantiated by
Respondent 's July 28, 1983 letter, insofar as it states "if,
of course , reliable assurances from the Union of a type
which are enforceable in a Court are forthcoming; then
and only then will we bargain with the Union , 'bargain-
ing' by definition being a mutual function ." Here again,
an attentuated and self-serving construction is placed
upon correspondence in quest of needless litigation.23
The quoted excerpt with other references on the July 28
letter in no way alter the position communicated by Re-
spondent on May 25. The statement that there would be
no bargaining at that juncture of the committee 's failure
to agree with loyalty assurances paralleled and was sub-
stantively indistinct from the issue previously litigated in
Case 30-CA-6609, etc . Contrary to the Charging Party,
the cited correspondence furnishes no reasonable basis
for concluding that Respondent after close of the hearing
in said case escalated the terms under which it would
return to the bargaining table.
To recapitulate , one need not go beyond the pleadings
to discern that the alleged unfair labor practice in Case
30-CA-7830 derived exclusively from Respondent's May
25 letter . No parole testimony has been uncovered that
might throw light on the intent underlying that docu-
ment . Contrary to the proponents of the complaint, I
find that it merely served as a reminder that the Ga-
lewski matter was not the sole basis for Respondent's re-
20 See ALT Exh 12(a)
21 See AL.I Exh 13 Whether or not Respondent's counsel deliberately
placed quotes around the term "condition" is a matter on which no opin-
ion is voiced
22 See ALJ Exh 9
23 Even were I to agree to with the Charging Party's characterization,
it would be of no moment , inasmuch as the complaint lays no challenge
to Respondent 's insistence on a loyalty pledge
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fusal to bargain, but that its position in that regard was
also predicated on the other contingencies litigated at the
May 9-13 hearing in Case 30-CA-6609, etc., namely,
FEMT's failure to agree to the loyalty proposal. In any
event, since the May 25 matter simply urged the Charg-
ing Party to retract the Labor Press article, and did so
employing the language of request and exception, rather
than ultimatum or condition, facts negate the 8(a)(5) and
(1) allegation, dismissal of Case 30-CA-7830 is warrant-
ed on that ground alone. Accordingly, it is concluded
that no conduct constituting an actionable violation of
Section 8(a)(5) and (1) has been shown.
2. Beyond the foregoing is the question of collateral
estoppel. The initial unfair labor practice charge based
on the Respondent's May 25 letter was filed on June 6,
1983.24 While that charge was pending, on June 10,
1983, the General Counsel filed a motion to reopen the
record.25 When I denied that motion on June 14, 1983,
the General Counsel filed, a request for special permis-
sion to appeal with the Board.26 Through said appeal
the misconduct attributed to Respondent was described
as follows:
By letter to the Union dated May 25, 1983, and
in direct response to the Union's May 23 letter; Re-
spondent continued to refuse to meet and negotiate
without the Union first agreeing to the' loyalty
clause.
Thus, the General Counsel then characterized the letter
as manifesting " that the Respondent is now refusing to
meet and bargain purportedly solely because of the refus-
al of the Union to agree to the loyalty clause." (Empha-
sis added .)27 At that point , the Board was advised by the
General Counsel as follows:
The Region of course, could issue a new com-
plaint but such an action would be bureaucratic non-
sense. [Emphasis added.]28
The Board on July 12, 1983, issued a telegraphic order
denying the General Counsel's request for special per-
mission to appeal . Apparently, this led to a rethinking of
the matter and 2 weeks later , on July 28 , 1983, the Gen-
eral Counsel issued the complaint in Case 30-CA-7830,
alleging, the following as the sole unfair labor practice
involved:
Respondent continued in its refusal to meet and bar-
gain' with FEMT and placed an illegal condition on
bargaining by demanding a published retraction of
the October 14, 1982, Labor Press newspaper arti-
cle.
Having been subjected to litigation of the May 25 letter
through a motion to reopen the record, on resolution
that issue against the General Counsel, Respondent right-
fully could assume that issues generated thereby had
been disposed of with finality. Since a charge was pend-
ing in this case at all times material, the General Counsel
enjoyed an election as to the appropriate, course of
attack, and having opted against issuing,a new complaint,
is bound by that choice. Judicial safeguards designed to
avoid duplicate, litigation as well as a wasteful and abu-
sive invocation of administrative processes ought to pre-
vail over the fact that the complaint in Case 30-CA-
7820 adopted a new and variant interpretation of Re-
spondent's letter.
3. Quite independent of the issue of estoppel is the
question of administrative convenience. For the substan-
tive equivalent of the 8(a)(5) and (1) allegation herein has
already been litigated and is awaiting decision in Case
30-CA-6609, etc. At stake in that proceeding is Re-
spondent's contention that it was privileged to use "self
help," including suspension and disruptions of bargaining
to protect itself against "disloyal act" and their effects.
Among the "disloyal acts" under scrunity in that case
was the "October 14, 1982 Labor Press newspaper arti-
cle." Thus, it was plainly forseeable that Case 30-CA-
7830 presented no new situation, not subject to resolu-
tion under the prior complaints. For if, in consequence of
Cases 30-CA-6609, etc., Respondent should maintain
that, as a matter of law, it was privileged under NLRB v.
Electrical Workers IBEW Local 1229 (Jefferson Standard
Broadcasting Co.), 346 U.S. 464 (1953), and related cases,
to use "self help". to counter media attacks by its em-
ployees such a result would validate the stance taken by
Respondent on May 25, 1983. On the other hand, if Re-
spondent was not privileged to restrict the bargaining
process in this fashion, an unfair labor practice would be
found, warranting a remedy, that would-redress any re-
lated limitations imposed on the bargaining process in-
cluding any and all implied in Respondent's letter of
May 25, 1983. Accordingly, to sustain the instant com-
plaint would countenance a multiplicity of, actions, lack-
ing in rational foundation and contrary to interests to be
perserved under the Act.
In concluding, it is noted that Respondent has ob-
served that the maintenance of this new cause of action
is no more than "a furtherance of . . . unrelenting har-
assment of the Respondent." While doubtful of many of
the charges and countercharges uttered to date on behalf
of Respondent, the latter has not been taken lightly. For,
in all fairness, it was predictably clear from the outset
that further action on Respondent's May 25 letter would'
accomplish nothing other than a needless waste of re-
sources and prolongation of decision on important issues
already litigated and awaiting decision. In the total cir-
cumstances, including the' overall bent toward litigious
excess already exhibited in connection with this ongoing
labor dispute, the shifting and boorish insistence on fur-
ther proceedings herein 'only has served to elevate Re-
spond'ent's claim of harassment from the outlandish to
the possible.
Upon the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I issue the following rec-
ommended29
24 See ALJ Exh 3
25 See ALJ Exh. 4
26 See ALJ Exh 7 29 If no exceptions are filed as provided by Sec 102 46 of the Board's
27 See ALJ Exh. 7, p. 3 Rules and Regulations, the findings, conclusions , and recommended
28 Ibtd Continued
MEDA-CARE AMBULANCE 479
ORDER
It is hereby ordered that Case 30-CA-7830 be ser-
vered from Cases 30-CA-66D9, 30-CA-7030, 30-CA-
7132, 30-CA-7132-2, 30-CA--7134, 30-CA-7134-2, 30-
CA-7398, 30-CA-7648, and 30-CA-7672.
IT IS FURTHER ORDERED that the complaint in Case
30-CA-7830 is dismissed in its entirety.'
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
Gerald McKlnny, Esq., for the General Counsel.
Barton M, Peck, Esq., of Milwaukee, Wisconsin, for the
Respondent.
Dean Dreiblatt, Field Representative, of Milwaukee, Wis-
consin, for the Charging Party, Federation of Emer-
gency Medical Technicians.
during initial contract negotiations by failing to provide
the certified Union with requested information; by refus-
ing to meet until the alleged discriminatee, Robert Ga-
lewski, ceased to act as the Union's designated agent for
purposes of collective bargaining; by withdrawing a final
offer and refusing to negotiate further because employees
had engaged in protected concerted activity; and by con-
ditioning any and all bargaining on the Union's accept-
ance of its proposed loyalty clause. In its duly filed an-
swers, Respondent denied that any unfair labor practices
were committed. Following close of the hearing briefs
were filed on behalf of the Respondent and the General
Counsel.
On the entire record in this proceeding,3 including my
opportunity directly to observe the witnesses while testi-
fying -and their demeanor4 and consideration of the
posthearing briefs, it is found as follows:
FINDINGS OF FACT
DECISION
STATEMENT OF; THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This
proceeding was heard on consecutive days between May
9 and 13, 1983, in Milwaukee, Wisconsin, on an initial
unfair labor practice charge filled on July 14, 1981, and
separate consolidated complaints that issued on February
11 and .April 28, 1983, respectively. i The complaints al-
leged that Respondent independently violated Section
8(a)(1) of the Act by coercive interrogation, actual sur-
veillance, creating the impression of surveillance, threats
of reprisals, and urging employees to form a committee
as an alternative to activity on behalf of an outside
union.2 The compliants further alleged that Respondent
violated Section 8(a)(4), (3), and (1) of the Act by, on
three separate occasions, suspending and finally discharg-
ing its employee Robert Galewski, and similarly violated
Section 8(a)(4), (3), and (1) by discharging another em-
ployee Ralph Lisowe, all because of their having en-
gaged in activity protected by the Act. Finally, it is al-
leged that Respondent violated Section 8(a)(5) and (1)
i A third complaint was issued, following close of the hearing, in Case
30-CA-7830 on July 28, 1983. By decision dated December 21, 1983
(JD-549-83), I severed and dismissed that proceeding
2 In the main , the independent 8(a)(1) allegations stem from an unfair
labor practice charge filed on July 14, 1981, in Case 30-CA-6609, and a
complaint issued on August 18, 1981 That complaint also included
8(a)(3) allegations based on the dischaiges of employees James K. Lund
and Gary Cleven and the impaired job status of Bonnie Lund. The issues
initially were resolved by informal settlement on February 19, 1982. In
the instant proceeding, the segment of the settlement agreement pertain-
ing to the 8(a)(l) allegations was set aside by the Regional Director.
However, the terms thereof were not disturbed insofar as the 8(a)(3) alle-
gations were concerned. Contrary to assertions by the General 'Counsel,
the settlement did not fully remedy these latter allegations because the
backpay accommodation did not include interest Serious questions exists
in my mind as to whether the General Counsel, absent rational justifica-
tion, is privileged to "pick and choose" between allegations in setting
aside a Board settlement Apparently, through inadvertence, the General
Counsel neglected to include the complaint in Case 30-CA-6609 in the
formal exhibits, It being a self-authenticating document, the record is re-
opened for the limited purposes of receiving that document as ALJ Exh
2
1. JURISDICTION
Respondent, a Wisconsin corporation, is engaged, from
its offices and places of business in Milwaukee and West
Allis, Wisconsin, in the interstate and intrastate transpor-
tation of persons by ambulance. In the course of said op-
eration, during the calendar year ending December 31,
1982, a representative period, Respondent derived gross
revenues exceeding $500,000 and received products,
goods, and materials valued in excess of $50,000 from
other enterprises, which received said products directly
from points located outside the State of Wisconsin.
The complaints allege, the answers admit, and I find
that Respondent is now, and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaints allege, the answers admit, and I find
that 1199W, National Union of Hospitals and Health
Care Employees, RWDSU, AFL-CIO (1199W) and the
Federation of Emergency Medical Technicians, Wiscon-
sin Federation of Nurses and Health Professionals,
American Federation of Teachers, AFL-CIO (FEMT)
are now, and have been at all times material, labor orga-
nizations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues of practical remedial concern in this pro-
ceeding are limited to questions whether during the
course of negotiations with a newly certified labor orga-
S Errors disclosed in examination of the official transcript of proceed-
ing are corrected in Appendix B [omitted from publication)
4 Credibility rulings made hereinafter, from time to time, are accompa-
nied by objective rationale. Such references merely serve to reenforce
and should not be construted as discounting my impressions gained from
first-hand observation of the witnesses. Furthermore, although it should
go without saying, testimony, whether or not contradicted, is rejected by
implication to the extent that it includes matters that might not be recon-
ciled with expressly credited evidence Cf. Herbert F. Darling, Inc, 267
NLRB 476 (1983).
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nization, Respondent engaged in acts of intimidation, in-
cluding the discriminatory discharges of two employees,
Robert Galewski and Ralph Lisowe. Also of major
import are allegations that Respondent engaged in an un-
lawful refusal to bargain by withholding requested infor-
mation of a nature relevant to the bargaining process, by
conditioning its willingness to participate in good-faith
bargaining on the Union's suspension of protected activi-
ty and acceptance of a loyalty clause and by suspending'
negotiations until such time as the Union removed
Robert Galewski from the position of union president
and representative on the Union's bargaining team. An
important procedural issue is generated by the General
Counsel's attempt to relitigate, on a segmented basis, por-
tions of a previously settled complaint.
B. Factual Overview
This proceeding is central to an ongoing labor dispute
involving Respondent and its employees. The litigation
between Respondent and Region 30 of the National
Labor Relations Board involves unfair labor practice
charges filed by two distinct labor organizations. My
own experience with the parties has left me with the
solid impression that it will take more than remedies
available under this Act to cool down the hostilities
manifested by the parties through their courtroom de-
portment, the quality of testimony offered from the wit-
ness stand,5 and the vituperation evident in posthearing
submissions.
Basically, the three complaints and the nine separate
unfair labor practice charges that lend structure to the
instant proceeding stem from disenchantment with work-
ing conditions first manifested by Respondent's emergen-
cy medical technicians (EMTs) in 1981.6 In June of that
year an employee meeting, attended by a union official,
was held at the home of Bonnie Lund. A second contact
between Respondent's employees and an affiliated labor
organization took place on June 28, 1981, when a meet-
ing was held at the office of 1199W. The latter filed
unfair labor practice charges in Case 30-CA-6609 on
July 14, 1981. Thereafter, on July 22, 1981, at a meeting
sponsored by the Respondent, employees shelved their
interest in 1199W, by expressing a will to meet with the
Employer through an internal committee. For the next
month, the employee committee met with the Company
for the purpose of negotiating conditions of work. On
August 18, 1981, the complaint in Case 30-CA-6609
issued. On August 31, 1981, 2 weeks later, the employee
5 It was my distinct impression at the hearing, and after studying the
transcript, that the ill will between the Employer, certain employees, and
the Union in this proceeding was not only marked by a maelstrom of
petty accusations and counteraccusations, but that the deeply held hostil-
ities on both sides allowed prejudicies to influence testimony and adher-
ence to the oath In the critical areas, neither the witnesses for the Gener-
al Counsel nor those presented by the Respondent were beyond suspi-
cion In the final analysis, the critical issues of credibility have been re-
solved in the light of overall impressions as to probabilities derived from
objective and indisputable facts,, and other matters that I directly ob-
served while presiding over this hearing.
5 EMTs are certified by the State of Wisconsin and operate Respond-
ent's emergency vehicles as two-person teams. They are primarily en-
gaged in transport of the elderly by ambulance to various locations
within the environs of Milwaukee, Wisconsin
committee distributed a written letter to employees stat-
ing as follows:
It is the recommendation of the committee to affili-
ate with 1199W, National Union of Hospital and
Health Care Employees, RWDSU, AFL-CIO, be-
cause it is in the best interest and advantage to the
employees of Meda-Care Ambulance.7 The notice
in question also indicated that employees could reg-
ister their votes for affiliation and receive additional
information at a meeting to be held on September 9,
1981, at the Union hall.
Despite the foregoing, the committee continued to ne-
gotiate with Respondent. On October 19, 1981, it adopt-
ed a formal name "Professional Emergency Medical
Technicians Employees" (PEMTE). Eventually, Local
1199W disclaimed an interest in Respondent's employees
in November 1981. The employees, through PEMTE
continued to negotiate with the Respondent through Jan-
uary 1982. In that month, Robert Galewski, an alleged
discriminatee in this proceeding, contacted FEMT.
On January 27, 1982, FEMT filed a representation-pe-
tition seeking a unit of Respondent's employees.
On February 19, 1982, a settlement agreement was en-
tered in Case 30-CA-6609.
On March 5 and 9, 1982, a settlement was conducted
on the FEMT petition with the latter being designated
by a vote of 19 for, and 4 against. Later, on March 17,
1982, FEMT was certified as the exclusive representative
of a unit of Respondent's EMTs.
On May 5, 1982, FEMT requested negotiations.
On May 25, 1982, Respondent discharged Galewski,
who had served as a union observer during the March
election. Galewski also had been a principal spokesman
for the employee committee dating back to September
1981, and was one of the main protagonists for affiliation
with FEMT. He appeared as a witness for the General
Counsel in another unfair labor practice case against Re-
spondent in March 1982. Also on May 25, 1982, Ralph
Lisowe, a discriminatee under the instant complaint, was
terminated.
Thereafter, on June 10, 1982, negotiations between Re-
spondent and FEMT commenced. Galewski, though, no
longer on Respondent's payroll, continued as a member
of the Union's negotiating team.
At a negotiating session held on June 15, 1982, FEMT
orally requested a copy of the Company's malpractice
policy. This was followed by additional, requests for that
same document registered by FEMT on July 21, 1981,
and August 5, 1982, and a'written request on December
7, 1982.
On October 6, 1982, the Union sought to publicize the
unresolved contract dispute by handbilling and picketing
at one of the Respondent's two stations. At a bargaining
session on October 7, 1982, Respondent registered a
strong protest of the handbilling and picketing, charac-
terizing said activity as "infantile ," "counterproductive,"
and "untruthful." The Company offered to present a
' See G C Exh 5
MEDA-CARE AMBULANCE - 481
final offer at that time in order to put an end to the
handbilling and picketing.
On October 14, 1982, an article appeared in the Mil-
waukee Labor Press quoting Galeski and reproducing one
of the Union's handbills, which criticized the Respond-
ent's position in the negotiations.
On October 19, 1982, the Union again engaged in pick-
eting.
At a bargaining session on October 20, 1982, Respond-
ent indicated that its final offer would be retracted be-
cause of the aformentioned activites, including he article
that appeared in the Milwaukee Labor Press, as well as
the resumption of picketing on October 19. At'that ses-
sion, Respondent indicated that no final proposal would
be forthcoming in that the proposal mentioned on Octo-
ber 7 was designed to prevent the Union from engaging
in the very activity that subsequently took place. Re-
spondent added that the Company would make no wage
proposal until the Union agreed to Respondent's --pro-
posed loyalty clause.
For this reason, bargaining was suspended by Re-
spondent between October 20, 1982, and January 20,
1983.
On February 9, 1983, FEMT was finally given a copy
of the repeatedly requested malpractice policy.
In a subsequent session on March 9, 1983, Respondent
demanded a clause whereby employees and their repre-
sentatives would be subject to an expanded loyalty
clause.8 It was indicated that if the Union agreed to this
proposal, Respondent would maintain its current wage
rate, but if violated, all wage rates would be reduced to
the Federal minimum.
On April 20, 1983, Respondent, on the basis of infor-
mation assertedly within its possession, charged that Ga-
lewski was employed by a competitor and in that capac-
ity had actively solicited accounts of the Respondent.
The Union was informed that Respondent would refuse
to negotiate until Galewski had been removed as a union
officer and bargaining committee member. Prior to close
of the hearing, FEMT had refused to honor that demand
and the parties have not met since April 20.
C. The Presettlement Conduct (Case 30-CA-6609)
In the complaint issued by the Regional Director for
Region 30 on February 11, 1983, a settlement agreement
in Case 30-CA-6609 was set aside insofar as it alleged
that Respondent had engaged in certain independent vio-
lations of Section 8(a)(1) during the 3-week period be-
tween June 15, 1981, and July 3, 1981.9
Ordinarily, the action by the General Counsel in coun-
termanding a settlement argument will receive the appro-
bation of the Board if it be shown that a respondent en-
gaged in postsettlement unfair labor practices. (See, e.g.,
Laborers Local 185 (Joseph's Landscaping), 154 NLRB
1384 (1965)). Despite the latitude extended in such mat-
ters, I know of no precedent holding that such an exer-
8 See G C Exh. 38
o On the face of the complaint it is alleged that the settlement agree,
ment was set aside because, by virtue of the postsettlement conduct set
forth therein, Respondent "has violated the terms of the aforementioned
settlement agreement." See G.C Exh 1(t).
cise of discretion is conclusive and nonreviewable in cir-
cumstances where rehtigation of settled allegations will
produce results inimical to statutory interests. As hereto-
fore indicated, the settlement involved here not only
called for notice posting and a full conventional remedy
with respect to independent 8(a)(1) allegations, but also
adjusted allegations of discrimination involving three em-
ployees.
The General Counsel has declined to set aside these
8(a)(3) allegations, now stating that such a course would
have been "frivilous [sic]; to say nothing of the needless
additional litigation expenses to Respondent." 1° In fair-
ness, however, if relitigation of the 8(a)(3) allegations
might be dubbed "frivolous," for the reasons stated
below, further delibrrations with respect to the stale and
once litigated independent 8(a)(1) allegations smacks of
the inane.'
1. From the standpoint of background, the scotched
8(a)(3) allegations would prove far more valuable than
any findings of coercive interrogation or creating the im-
pression of surveillance. Unlike the latter, which would
violate the Act irrespective of motive, any presettlement
acts of discrimination would weigh ,heavily in the deter-
mination of whether Respondent harbored a continuing
proclivity to invoke discipline as means of discouraging
union activity.
2. The utility of the presettlement 8(a)(1) allegations is
diminished by their staleness . They relate to a timeframe
during which neither Robert' Galewksl nor Ralph
Lisowe, the alleged discriminatees in the present case,
were engaged in activity of a protected nature. A differ-
ent labor organization was involved and there is no sug-
gestion in the record, whatever, that FEMT had any
knowledge that employees of Respondent were then in-
terested in representation. Moreover, the presettlement
allegations , with a, single exception, involved 8(a)(1) con-
duct attributable to Jonathan Kostreva and Charles Fiast.
Fiast, who formerly served as Respondent's general man-
ager , terminated his employment in January 1982 and it
does not appear that Kostreva remained in the Respond-
ent's employ at any time during the period in which
postsettlement unfair labor practices allegedly occurred.
Io This assertion is among several by the General Counsel that were
shifting and inconsistent For during the hearing, the General Counsel did
attempt to litigate the settled 8(a)(3) allegations. I foreclosed him from
pursuing the matter. A further contradiction is evinced through the Gen-
eral Counsel's explanation at the hearing for refusal to set aside the settle-
ment agreement with respect to the issues of discrimination . It was then
explained that said action would be "frivolous" inasmuch as "the Region
has a full remedy, with respect to those matters." The exact opposite
proved to be true ,For, when the General Counsel was subsequently
probed as to the extent of compliance with the settlement, he conceded
that all of the independent 8(a)(1) allegations on Case 30-CA-6609 were
incorporated in a conventional notice, and that said notice had been
posted for the required 60-day period This full remedy of the 8(a)(1)
conduct was complimented by only partial relief for the discrimmatees in
that the backpay awarded was compromised to the extent that interest
was excluded
I I I would note in this regard that at the hearing, my expressed admo-
nition to the General Counsel that certain of the presettlement conduct
would not persuasively support a finding of union animus and my efforts
to dissuade litigation of those stale matters was met tersely by the Gener-
al Counsel's comment- "I'll put the evidence in."
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. The utter waste in rehtigating the presettlement
8(a)(1) is demonstrated by the further fact that this will
not be the first climbing of the ladder with respect to
this subject matter. In a complaint issued on November
20, 1981, in Case 30-CA-6746, Respondent was charged
with violations of Section 8(a)(4), (3), and (1) by conduct
that included its termination of Bonnie M. Lund. A trial
was conducted thereon by Administrative Law Judge
Irwin H. Socoloff on March 15 through 18, 1982, who
later issued his decision sustaining each and every allega-
tion of that complaint on January 11, 1983.12 It is appar-
ent from Judge Socoloff's decision that the precise inde-
pendent allegations of Section 8(a)(1) attributed to Fiast,
Kostreva, and Respondent's co-owner, Darwin Larsen,
were litigated and the subject of specific findings in that
proceeding. The salient aspects of the testimony before
Judge Socoloff was uncontradicted, and thus there was
little chance of modification of his findings on review.
Nonetheless, on February 11, 1983, a month after issu-
ance of Judge Socoloffs decision, the General Counsel
again sought relitigation of these settled and once litigat-
ed issues by the complaint in Case 30-CA-7030, et al.13
To say the least , it should have been apparent, in any
event, that animus reflected in these outdated independ-
ent 8(a)(1) allegations would certainly be eclipsed and re-
duced to the cumulative by the propensity to discrimi-
nate, which emerges from the finding by Judge Socoloff
that Respondent terminated Bonnie Lund in violation of
Section 8(a)(3). Under established precedent, a prior
unfair labor practice finding is relevent to the evaluation
of the lawfulness of subsequent discharges of union pro-
tagonists. See, e.g ., Southern Paint & Waterproofing Co.,
255 NLRB 125, 129 (1978).
In the circumstances, it is concluded that relitigation
on a piecemeal basis of the previously settled independ-
ent 8 (a)(1) allegations involved arbitrary action by the
Regional Director, patently lacking in good sense. Mean-
ingless, cumulative litigation against private citizens is
never in the interest of the Act and might only serve to
reduce public confidence in the mission of the National
Labor Relations Board. Moreover, where, as here, cur-
rent, viable unfair labor practice allegations seek a
remedy in the face of a curtailed bargaining relationship,
litigation of surplusage serves merely to prolong the
availability of appropriate relief and thereby tends
strongly to frustrate, rather than enhance statutory ob-
jectives. For these reasons, I shall dismiss the presettle-
ment 8(a)(1) allegations as failing to raise issues warrant-
ing relief under the Act.
D. The Alleged Discrimination
1. The union activity of the alleged discriminatees
a. Robert Galewski
The complaint alleges that Respondent violated Sec-
tion 8(a)(1), (3), and (4) of the Act by disciplinary sus-
pensions given to Galewski on February 5, March 3, and
May 20, 1982, and finally, by discharging him on May
25, 1982.14
Galewski was hired on February 12, 1981. After a
brief stint as a supervisor, he served as a full-time EMT.
He did not join in the early effort by his coworkers to
bargain collectively with the Respondent. It was not
until after the termination of Bonnie Lund in September
6, 1981 that his interest in protected activity commenced.
About September 6, he became a member of the employ-
ee committee and was soon to become its spokesman.
With his leadership, the committee adopted the name
PEMTE, and his home became PEMTE headquarters.
He made it clear that employees felt strongly about the
claims they made in negotiations and that they would be
pursued vigorously. Later, he contacted FEMT and was
the driving force behind designation of FEMT as the
employee representative. His role in this regard was evi-
denced by his having been the employee who initially
contacted FEMT, as well as his distribution of authoriza-
tion cards on behalf of that Union, and his serving as
union observer at the election of March 5 and 9. He tes-
tified on behalf of the General' Counsel at the hearing
later in March conducted before Judge Socoloff in the
Bonnie Lund case. On May 5, Respondent was formally
notified that the elected officers and other officials of
FEMT, included Robert Galewski as its newly designat-
ed president. 1 s
b. Ralph Lisowe
The complaint alleges that Lisowe was terminated on
May 25 in violation of Section 8(a)(1), (3), and (4) of the
Act.
Lisowe was hired on January 19, 1981, and was em-
ployed as an EMT. His union activity appeared limited
and he was not among the principal protagonists of the
Union. However, though off sick, he presented himself at
the polls and voted in the March election. In early April,
Lisowe was assigned to work as Galewski's crew part-
ner. He claims that later, when Galewski became presi-
dent of the Union, he discussed the Union with Galewski
who encouraged him to talk to other employees and so-
licit their support of the Union. Lisowe claims to have
obliged. Nonetheless, he at no time participated in the
distribution cards or union literature; it does not appear
that he engaged in any organizational activity prior to
the designation of Galewski as president. Lisowe was
subpoenaed by the General Counsel and did attend the
March 19 hearing before Judge Socoloff but did not tes-
tify.16
Although the matter is not free from doubt, because
uncontradicted, I am willing to credit Lisowe's testimo-
ny that at some time between March 15 and the end of
March 1982 he had a conversation with Supervisor
Linda Wiedemann in the dispatcher's office, described by
Lisowe as follows:
Linda asked me if I received a union card; and I re-
plied, yes. she asked me if I signed it; and I said,
12 See G.C. Exh 3. Subsequently, on August 3, 1983, the decision of
Judge Socoloff was adopted by the Board . 266 NLRB 1208.
13 See G.C. Exh 1(t)
14 All dates refer to 1982 unless otherwise indicated.
1s See G C Exh. 23 ,
16 See G.C. Exh. 2.
MEDA-CARE AMBULANCE
yes, I did And she asked ine if I turned it into the
Union representative; and I said yes, I did. And she
asked me what my feelings were on the Union; and
I said, well, the employees need to benefit for the
wages and try to have better working conditions
and so forth for the employee's position.17
2. The Galewski suspension of February 5, 1982
On January 27, FEMT filed an election petition in
Case 30-RC-4111. By letter dated January 30, Galewski
informed the Regional Director in connection with the
aforesaid election petition that:
While the PEMTE collective bargaining committee
is interested in this matter for the benefit of our
membership, it is our decision not to intervene, de-
cline the right of representation and not be consid-
ered a party in these procedures. is
About 2 weeks earlier, in mid-January, Russell Barczak
had been named to replace Fiast as Respondent' s general
Manager; Galewski personally delivered a copy of the
above letter to Barczak in addition to posting another on
the bulletin boards.19 This posting was accompanied by
a copy of a memorandum entitled "Sunset Edition," stat-
ing that PEMTE had declined to support FEMT while
urging employee to vote "yes" for FEMT in the upcom-
ing election.
During the next week on February 5, Barczak tele-
phoned Galweski and informed him that he would be
suspended for 8 hours without pay effective February 8
because he allegedly parked his personal automobile in a
spot reserved for management in violation of company
policy. The General Counsel contends that this was "the
first illegal step in [a] thinly veiled attempt to establish a
case of progressive discipline against Galewski." I dis-
agree. There is no dispute that prior thereto on January
29, Barczak posted a notice to employees stating as fol-
lows:
The parking places directly across from the offices
between Monday thru Friday are to be used ONLY
BY MANAGEMENT AND SUPERVISORY
PERSONNEL .20
Also beyond controversy is the fact that at 6:30 a.m. on
Thursday, February 4, after Russell Barczak reported for
work, Galewski's car was parked in a management park-
ing space. It was not removed until 8:30 a.m., the end of
Galewski's shift that morning.
The General Counsel seeks to excuse this clear viola-
tion of Respondent's policy on the ground that Galewski
14 The complaint alleges that Respondent violated Sec. 8(a)(1) on the
basis of this incident Having credited Lisowe's undenied testimony, and
as the questioning was not shown to,have been accompamed by protec-
tive safeguards, and apparently failed to serve any recognizable legitimate
employer interest, I find that it tended to impede Lisowe in the exercise
of his Sec 7 nights and violated Sec 8(a)(f) of the Act
is See G C. Exh 15(b).
19 Although Galewski testified otherwise, it was my impression that he
and Barczak shared a personal dislike for each other. I also sensed that
Galewski labored under an attitude of rivalry with Barczak that probably
predated the latter's elevation to the position of general manager
20 See R Exh 9
483
had obtained permission" from Mary Jane Barczak to
park in the management spot. The latter is the wife of
Russell Barczak and a dispatcher and supervisor.
Whether or not permission was granted gives rise to a
critical issue of credibility derived from a telephone con-
versation at approximately 11 p.m. on February 3 be-
tween Galewski and Mrs. Barczak. According to Ga-
lewski in that conversation, he informed Barczak that
there was no other place for him to park his car and
therefore he requested permission to park in a manage-
ment space. To this, Barczak allegedly responded, "I
suppose you'll have to." Galewski asserts that she then
stated, "Russ is going to be in between 6 and 6:30, is
there room to park his car?" According to Galewskt the
conversation ended when she responded, "Yes, the two
adjacent [sic] spaces are open."
Galewski went on to testify that he was dispatched on
a call the next morning at approximately 6:30 a.m., and
that he observed Russell Barczak's car in the garage on
his departure. Galewski related that at approximately 8
a.m., he went to Barczak's office to obtain his paycheck,
which was personally delivered by Barczak without
comment.
Galewski related further that the next day, February 5,
1982, Barczak telephoned him advising of the suspension
for the parking in the management space. Galewski
claims to have protested, indicating "No, I asked permis-
sion ." Barczak allegedly said, "You did not ask permis-
sion , you just went ahead and parked there." Galewski
inquired whether he would get a letter for his file, to
which Barczak responded in the affirmative. On Febru-
ary 12, 1982, Galewski claims that in obtaining his pay-
check from Barczak he inquired about the whereabouts
of his suspension letter. Barczak allegedly responded that
it had been drafted, but it had not been typed and cor-
rected as yet. The letter was delivered to Galewski on
February 17, 1982.21
Galewski's account of the salient aspects of the con-
versation was as follows:
When I had talked to him [Galewski], I said "Oh
incidentally", I said, "if you hear the garage door
going up, early in the morning, I said that it's Russ,
he said he's going to be in around '6 or 6:30 so don't
be alarmed. And Mr. Galewski asked, at that time
said well, "I am parked in a management spot, I
21 Gary Hansen , an EMT, who allegedly worked with Galewski on
February 3, testified that he overheard the telephone conversation be-
tween Galewski and Mary Jane Barczak He claims to have heard Ga-
lewski request permission to park his vehicle in the management area and
to have overheard Barczak state "they will have to, or words to that
effect." Hansen was one of several witnesses for the General Counsel
who astonished me with their attentiveness to matters that at the time
would hardly have stirred one's interest, to say nothing of their remarka-
ble capacity to recall the details of those incidents The conversation in
question appeared to be of a routine nature. Just why Hansen would have
eavesdropped remains a mystery Needless to say Hansen's testimony
both that he was aware that Galewski was talking with Barczak because
of the tense tone in Galewski's voice and that he could overhear state-,
ments made by Barczak on the telephone struck as contrived and unbe-
lievable It is true that Hansen is an incumbent employee who ostensibly
had nothing to gain by violating the oath Nonetheless, my disbelief of
his testimony is so strong as to arouse curiosity about to just what or
who could have provoked false testimony of this sort.
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suppose I am going to have to move it." I told him,
"yes, I suppose you're going to have to move your
car there. 1122
She also related that after she hung up, she informed
Russ Barczak, that Galewski was parked in a manage-
ment spot and that she told him the car would have to
be moved.23
Russell Barczak testified that the next morning when
he reported to station 1 he observed Galewski's car in
the management parking area. He explained that he
elected to do nothing about the incident at that time be-
cause he first wished to consult with Respondent's attor-
ney. He offered that he felt discipline was in order be-
cause of the attitude reflected by Galewski in defying the
parking policy that had been stapled to paychecks on
January 29, and the instruction given by Barczak's wife
the night before. His testimony was to the the effect that
he acted on his impression that Galewski had deliberate-
ly defied one of the first authoritative acts by Barczak
following his advancement to general manager.
The testimony of Mrs. Barczak struck as entirely more
probable than that of Galewski. I find it difficult to be-
lieve that she would have accepted his representation
that the management space represented the only accepta-
ble place for Galewski to park within the vicinity of sta-
tion 1 throughout that night.24 Her version that she
simply agreed with Galewski's indication that it would
be necessary for him to remove his car seemed the more
believable. As for Galewski himself, my own impression
of him, suggested accuracy in Barczak's characerteriza-
tion concerning his rebellious instinct toward authority,
an opinion confirmed by a number of factors evident on
this record. Barczak rightfully assumed that Galewski
had deliberately ignored its parking policy as well as a
direction by a supervisor consistent with that policy.
Having credited the testimony of Barczak, I find that
Galewski in this instance, engaged in-conduct that made
him a proper subject for legitimate discipline.
3. The Galewski suspension of March 3, 1982
It will be recalled that on February 17, Galewski re-
ceived a warning letter based on his violation of Re-
spondent's parking policy. That day Galewski's partner
was Sean Kleatsch. At approximately 6:37 p.m. that day
22 In his brief, the General Counsel represents that Barczak did not
deny giving Galewski permission to park in the management spot at that
time This characterization is totally inconsistent with the plain import of
Barczak 's account of what transpired in the course of this telephone con-
versation
22 Russ Barczak allegedly was in the same room during the phone con-
versation He indicated that he did not pay much attention to what was
being said , until his wife in a raised tone of voice stated " I guess you'll
have to " He claimed that he did not learn what this meant until after she
hung up, whereupon she explained that Galewski had informed her that
he was in management parking space and had stated , "I suppose I'm
going to have to move " His wife allegedly went on to explain that it was
to this that she responded, "Well, I guess you're going to have to "
24 Galewski explained that he sought to park indoors that evening be-
cause his car had been vandalized previously, because it was very cold
that night , and because the area proximate to station 1 was less than de-
sirable While this supports the reasonableness of Galewski's preference,
nothing in them suggests that conditions existed that evening so unusual
for February downtown Milwaukee as to warrant his alleged statement
to Mrs Barczak "there is no other place for me to park my car "
they received an emergency, or "Code 3," call to Mt.
Carmel Nursing Home. Galewski drove. The crew ar-
rived at the nursing home at 6:49 p.m.25 Galewski con-
cedes that he at no time used his red lights and siren in
responding to Mt. Carmel. He also acknowledges that on
their arrival they were approached by a nurse who
asked, "What took you so long," and then sought the
driver's identity. The patient was then prepared and
transported to St. Luke's Hospital. Galewski did use the
emergency alerts on the final leg of the dispatch from
Mt. Carmel to St. Luke's Hospital.
From the hospital, Galewski telephoned the dispatcher
on duty, Clarence Huttle, and informed him that the
nurse had complained about their response time.26 When
he asked Huttle what the response times were, Huttle re-
plied "there is nothing wrong with that response time,
it's a great response time." Galewski acknowledge that
in a second telephone conversation with Huttle, the
latter inquired whether the nurse was "irate" and that
both Kleatsch and Galewski informed him that she was.
On February 18, Barczak telephoned Galewski indicat-
ing that he wanted to meet with him the next day con-
cerning the Mt. Carmel run. He suggested that Galewski
bring a representative of his choosing.
On February 19, a meeting was held at station 1.27
Respondent's counsel, Barton Peck, Barczak, and Huttle
were present for the Company. Dean Dreiblatt, a repre-
sentative of FEMT, accompanied Galewski. The meeting
was opened with Peck indicating that the format would
be "investigatory" and that no charges had been filed
nor had there been any formal complaint from the nurs-
ing home. There was some discussion concerning the re-
sponse time and inquiry about why Galewski had not
used red lights and sirens. To this latter inquiry, Ga-
lewski responded, "I did not see any -reason to use
them." When asked by Peck to explain further, accord-
ing to Galewski, he explained that the vehicle's steering
had been acting improperly,28 that the road was wet and
2s The run from station 2 to Mt . Carmel traverses some 6 to 7 miles,
most of which is expressway There is no dispute that the lapsed time
experienced by Galewski -Kleatsch on that run was 12 minutes
2 6 Huttle did not testify Barczak testified that on the same morning,
Huttle explained the incident to him , reporting that he informed Ga-
lewski that he had a very good time from station 2 to Mt Carmel . Hattie
told Barczak that, in making this statement to Galewski , he had assumed
that the crew had responded with red lights and siren
27 It will be recalled that a settlement stipulation was executed on this
date in Case 30-CA-6609
28 The vehicle in question was unit 70 Galewski testified that this ve-
hicle had previously been serviced because of a steering problem He
claims several weeks earlier he had picked it up from the service facility
and in driving it back to the station, detected nothing improper in its han-
dling He claims that he first became aware of a continued malfunction
on February 17 in the course of the Mt Carmel run In this connection,
another EMT, James Lund , who was Galewski 's partner earlier that day,
testified that another supervisor , Kenneth Mohr , approached him on Feb-
ruary 17 and asked how the vehicle was running . Lund claims to have
responded, "I thought it was running fine other than i thought it might
have a problem with the steering " From all appearances , the steering
reference was nothing more than argumentative excuse It failed to fur-
nish rational explanation for Galewski 's failure to use emergency equip-
ment at any time during the run Any impairment in the steering would
hardly have been noticeable at the slow speeds to be encountered before
the vehicle would have reached the expressway
MEDA-CARE AMBULANCE
icy,29 that there was a lot of tral'fic,30 and that he had
green lights or arrows through the intersections. 31 He
indicated that most of the route was on the expressway,
and that the speed limit on the expressway was fast
enough.32
There was conversation between Peck and Dreiblatt as
to the existence of a company policy concerning the use
of red lights and siren and according to Galewski, Peck
responded that there was such a policy "in the company
rules and regulations."33 Dreiblatt and Galewski insisted
that the policy be produced, while Barczak attempted to
explain that the policy had always existed in practice. In
this latter regard, it is not without significance that Ga-
lewski's own testimony at one point indicated that Code
3 was synonymous with operating red, lights and siren in-
sofar as he testified that, "I have been assigned by dis-
patchers, on Code 2 calls to run Code 3," a colloquialism
that in the context could only have meant that red lights
and siren are an inherent adjunct of a Code 3 response.
Barczak scheduled a second meeting for March 2, and
requested Galewski to at that time express his position in
writing.34 In a letter dated February 25, Galewski ap-
pealed to Barczak to postpone that meeting on grounds
that he had a prior commitment , and also enclosed a
memorandum, together with statements of six EMTs as
to their views on whether the use of red lights an sirens
during emergency calls was mandatory or discretionary
with the driver.35 Galewski 's memorandum was aggres-
sively termed, starting with the declaration that manage-
ment had failed to produce evidence of an existing policy
concerning the use of red lights and sirens , and going, on
to charge that the existence of such a policy would be
"inherently unreasonable." It went on to remind Re-
spondent of Galewski's participation in activity protected
19 Under the scenario depicted by Galewski he would not have known
of any icing he described until well after he made the initial judgment not
to use red"lights and siren, In any event, I see nothing incompatible in the
use of red lights and siren and the need to proceed cautiously at slow
speeds,
30 Under Wisconsin law an emergency vehicle is not entitled to right
of way unless operating with red lights and siren Thus, the failure to use
such equipment might well expose the operator to liability for negligence
in the event of collision, a result that would not obtain had emergency
signals been utilized
" Here again, even if true, Galewski could not have known of the
green lights until well after his approach to the first intersection and his
having already determined not to use red lights and siren.
32 Although the testimony of Galewski and certain other witnesses of
the General Counsel suggested otherwise, the use of red lights and siren
are often effective and necessary even at low speeds,
33 The General Counsel claims that a letter dated September 28, 1978,
to Meda-Care from the Superintendent of the Milwaukee Health Depart-
ment supports Galewski's position See G C Exh. 17 However, that
letter deals with "excessive and unnecessary siren noise " On its face, it
has no application where emergency alert systems are "necessary to
produce safety of operation and clear paths for delivery." Furthermore, it
expresses no need for regulation of the use of red lights While Galewski
claims to have referred to this document in explaining his action to Peck
and Braczak at the February 19 meeting, no reference to this letter was
made in Galewski's written statement of position, which was dated Feb-
ruary 25 See G.C Exh 18(b). I have my doubts as to the accuracy of
Galewski's testimony in this latter respect.
34 See G C Exh. 18(a)
35 See G C Exhs 18(b) and 18(1) inclusive In essence, these state-
ments are addressed to the discretion available to the EMTs while driv-
ing on freeways They do not address, however, the fact that the Mt
Carmel run of February 17 was not confined to freeways, but in advance
thereof, required Galewski's unit to traverse heavily traveled streets
485
by Section 7 of the Act, and charged that this, together
with the absence of a prior policy of discipline of em-
ployees for not running red lights and sirens "continu-
ously through a Code 3," suggested that . . . Galewski is
being singled out for his protected activity." Along this
same line, it argued, in reference to the meeting of Feb-
ruary 19, "that the line of questioning engaged in by the
employer resembled more an attempt to entrap and get
Galewski than a genuine investigatory interview."36 Fi-
nally, the statement warned that any discipline imposed
in this case would be followed by charges of 8(a)(1) and
(3) violations under the National Labor Relations Act.37
On March 1, Galewski told Barczak that the meeting
would be held on March 2 as scheduled. When Galewski
indicated that he had a conflict and would prefer to have
it changed, Barczak stated, "Bob, if you're concerned
about your job, you'll be there." Galewski indicated that
that sounded like a threat, whereupon Barczak allegedly
stated, "Bob, I'm on your side," repeating, "If you are
concerned about your job, you'll be there."38
According to Galewski, that same day he and his part-
ner Jim Lund were given a written dispatch hand deliv-
ered by Supervisor Brenda Weidemann. The call card
defined the dispatch as the 1600 block on North 24th
Street. When they arrived, they found no such address.
When they called back, they found that the correct loca-
tion was the 600 block of North 24th Street.
Also that day at 7 p.m., Galewski received a telephone
dispatch from another supervisor, Bonnie Edwards. Ac-
cording to Galewski, Edwards informed him that he had
.,an emergency call to Marian Catholic Home," indicat-
ing that the patient was going to County General Hospi-
tal. However, the crew arrived at the Marian' Catholic
Home only to learn that there had been no call at that
location. Galewski checked with Bonnie Edwards, who
indicated, "I did not say Marian Catholic Home, I said
Marina View Manor [sic]." They then went to the
proper location and completed the call without inci-
dent.39
In the meantime, the March 2 meeting was held as
scheduled. Referring to Galewski's written statement of
position, Attorney Peck accused the Union of preparing
that document, while indicating that Galewski "was
being a political martyr for the Union," and that he was
being "used for the Union's own interest." According to
Galewski, Peck also charged Galewski with having co-
erced coworkers and other people to write letters con-
cerning their perception of the red lights and siren
36 It was my impression that the opposite was true Indisputable evi-
dence points to that fact that Galewski and Dreiblatt were the source,
rather than victims, of bullying style
3' See G C Exh 18(b) et seq
38 Galewski testified that Barczak chuckled as he made this statement
39 Galewski testified that since his hire in 1979 he had received errone-
ous dispatches on only about six occasions He could not recall having
ever received two erroneous dispatches on the same day The most
recent prior incident was about a year earlier He had never been criti-
cized by management for responding to the wrong location Although
the matter is suspicious, responsibility for the errors, such as the Marina
View Manor incident , is virtually impossible to assess At the same time,
I believe it a bit farfetched 'to assume that Respondent's agents would de-
liberately delay emergency runs in order to build a case against Ga-
lewski
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
policy. Peck is asserted to have called'Galewski a liar
and also to have indicated that two who had submitted
letters on his behalf, John Howe and Jim Lund, were
also liars.40
Peck went on toAndicate to Galewski that the Compa-
ny had rules and regulations and that he wanted Ga-
lewski to understand their content. He then asked Ga-
lewski whether, given the same circumstances in a Code
3 situation, he would run red lights and siren . Galewski's
admitted response was "not necessarily." Indeed, Ga-
lewski admitted when I questioned him that it was his
position that his personal discretion should take prece-
dence over any management policy that required red
lights and sirens in a Code 3 situation.
Shortly after the meeting, Galewski had a chance en-
counter with Barczak and Peck. Peck inquired whether
Galewski had learned anything from the meeting. Ga-
lewski indicated that he refused to answer outside the
presence of his representative and that he thought the
meeting was over. Peck angrily responded: "Damit, the
meeting is on when I say so, and you will answer my
questions." Peck then confronted Galewski only a few
inches away stating, "Did you learn anything?" Galewski
answered, "Yes . . . I learned a little bit more about
dealing with people."
The next day, March 3, Barczak telephoned Galewski
and advised him that he had been suspended for 24 hours
because of the Mt. Caramel incident and that there
would be a letter in Galewski's file to that effect. In ad-
dition, Barczak indicated that as a condition for Galews-
ki's return to work, he write a letter to the Company
stressing two points: the first dealing with Galewski's
recognition of the extreme responsibility of an EMT, and
the second relating to how Galewski would conform his
attitude and actions to such responsibility. Galewski indi-
cated that his first comment to Barczak was to inform
him that he had been supoenaed for the hearing concern-
ing the Bonnie Lund discharge scheduled for hearing
before Administrative Law Judge Irwin Socoloff on
March 15.
Subsequently, the representation election was conduct-
ed on March 5 and 9. Galewski served as union observer
on both days.
On March 9, Gerald McKinney, counsel for the Gen-
eral Counsel, notified the Respondent that five employ-
ees were being subpoenaed in connection with the trial
scheduled in Case 30-CA-6746 involving the discharge
of Bonnie Lund. Included in that group were Robert Ga-
lewski and Ralph Lisowe. Lisowe appeared at the hear-
ing but did not testify.41 On March 11, Galewski deliv-
ered the letter requested by Barczak.42
40 According to Galewski, Peck did say that he had used good judg-
ment in not using red lights and siren on the expressway. This testimony
is difficult to reconcile with the overall portrayal of Peck's stance at this
meeting, which Galewski himself described as that of "ranting and
raving " It is also difficult to believe that Peck would have made such a
concession while attacking the coworkers and the statements they submit-
ted to that very same effect
41 See G C Exh 2
42 See G C Exh. 20
On March 15 Galewski testified at the Bonnie Lund
trial43 and also several days later appeared at the hearing
as an observer.
The promised warning letter concerning the March 4
suspension was given to Galewski on March 19, 1982.
That letter informed Galewski that "the Company will
not tolerate your attitude, your evasiveness and your dis-
concern of Company policies, rules and regulations."
Reference was made to the fact that when given the op-
portunity to justify his failure to run Code 3 of the Mt.
Carmel run, he responded solely by: "challenging the
Code-3 policy and citing other problems . . . experi-
enced with other employees and [threatening] us in the
form' of a dare if we take disciplinary action." The letter
closed with the following: "We expect that this construc-
tive discipline will alert you to your responsibilities and
the fact that the Company will fully enforce its rules and
policies, regarding resonable [sic] standards of perform-
ance of its employees."
4. The May 19 suspension and the May 25
discharges of Galewski and Lisowe
On May 5, 1982, Respondent was formally notified
that the elected officials of FEMT included Robert Ga-
lewski as its newly designated president.44
It will be recalled that since early April, Lisowe and
Galewski had been assigned to work as a team. On May
10 they were ordered to report to Barczak's office. Su-
pervisor Clarence Huttle was in attendance. Lisowe and
Galewski were informed that a "bag mask resuscitator"
was missing from a vehicle they had worked on a previ-
ous shift. 45 In this connection, it is noted that the Com-
pany's rules and regulations explicitly provide as follows:
If equipment on a vehicle is discovered missing and
unaccountable during a shift of a crew who
checked that or those item(s) present on the vehicle
checklist at the beginning of their shift, then each
member of that crew shall be assessed half the cost
of replacement of that/those item(s).46
Consistent with the above policy, Barczak indicated to
Lisowe and Galewski that the cost of replacement would
be approximately $9 each. Galewski protested: "there,
wasn't any evidence that we had lost it." Barczak then
asked whether the mask had been used. Lisowe acknowl-
edged that on a call to DePaul-Bellevue, he removed the
mask but believed he had returned it subsequently to its
box. Barczak indicated that he would provide the crew a
week or so to locate the mask, while offering the use of
a company ambulance and telephone.
43 Galewski's testimony was corroborative of background testimony
relating to 8(a)(l)-type conduct Respondent elected not to contradict
him
44 See G C Exh 23
45 EMT John Howe confirmed that at the start of the shift in question
he had been informed by the outgoing crew that all equipment was
present in the unit. However, after checking, Howe discovered that the
facepiece, a life-critical item, was missing Also acknowledged that he
subsequently discussed the incident with Barczak.
4s See R Exh 5
MEDA-CARE AMBULANCE
- In the meantime at some time during the course of the
day on May 10 Barczak took a step calculated , by indi-
rection, to disqualify Galewski from employment. This
was accomplished by a report filed by Barczak with
Stewart Burdick , an official of the Wisconsin State au-
thority, which is responsible for licensing EMTs.47 That
document urged removal of Galewski from the EMT
system . It included detailed allegations against Galewski
based on his conduct before and after the February 17
Mt. Carmel run , mentioning that Respondent had arrived-
at a decision to terminate Galewski because the serious-
ness of that incident but that of, because of his Union ac-
tivity and organizing , he was given a 2 -day suspension.
The letter also indicated that despite this leniency, Ga-
lewski filed NLRB charges challenging the suspension, a
tact , which, according to Barczak, reflected adversely on
Galewski's character . The letter went on to indicate that
Galewski had a history of interpreting company policy
the way he saw fit and that he had been terminated from
prior employment with another ambulance service for
that very reason . Galewski was also declared culpable in
responding to the wrong nursing home, an incident that
Barczak attributed to Galewski's attitude and total dis-
concern for the life and safety of others, rather than a
breakdown in communication.
The next incident involving Galewski and Lisowe oc-
curred about May 14, when another question was raised
to Barczak as to the stocking of an
-
ambulance. Thus,
EMTs Howe and Mary Jorin on reporting to work on
May 13 inquired of Lisowe and Galewski if equipment
or the unit was in order and were told "everything was
there." In fact the unit lacked disinfectant , nasal cannu-
las, an emesis basin , and a stethoscope . Howe who
claimed to have been upset at this second incident re-
ported the matter to Barczak.
On May 18 , Barczak consulted Attorney Peck. They
discussed a local law that precluded employers from
forcing employees to pay for lost equipment . 48 It was
agreed between them that this restriction could be skirt-
ed by proposing to Lisowe and Galewski that they had a
choice between discipline or paying for the missing face-
piece.
Following this conversation , on May 19 , Barczak
again met with Galewski and Lisdwe . The facepiece had
not been located . Galewski denied responsibility , arguing
that there was no conclusive evidence that his crew had
lost the facepiece . Barczak indicated that the facepiece
was missing and that they were to pay for it. He asked
Galewski if he would do so . Galewski responded in the
negative . He then addressed Lisowe who also expressed
his intent not to pay . Barczak gave them the option of
either sharing the cost or accepting discipline . Lisowe re-
ferred to a past occasion when a sum of money had been
deducted from his paycheck because of a missing item,
and opined that this violated Wisconsin law. Barczak re-
sponded by reinding Lisowe that he had been implica-
47 See R. Exh. 2(a).
4a The exact nature of this law is undefined by credible evidence on
the record. I certainly mistrust the interpretations thereof by Lisowe and
Galewski It is possible that it merely restrains employers from withhold-
ing such sums from pay, while leaving other means of collection unregu-
lated.
487
taed in an act of misconduct involving the use of Meda-
Care's name in effecting personal purchases of nitrus
oxide, a "high"-inducing chemical. Galewski interjected
that it -sounded like Barczak was blackmailing Lisowe,
whereupon Bardzak indicated, "Yes it does, doesn't it."
In addition to the nitrous oxide charge, Barczak ques-
tioned the veracity of the two EMTs suggesting that
they had lied when on May 16 they had reported me-
chanical difficulties with unit 70.49 Barczak also referred
to the fact that other EMTs had reported the missing
cannualas, emesis, disinfectants, and a stethoscope. In this
connection Barczak accused Lisowe and Galewski of fal-
sifying their checkoff sheet. He offered Galewski his
telephone inquiring whether he wished to talk to an
agent of the NLRB. Galewski then inquired as to wheth-
er the articles found missing on May 17 would be includ-
ed in the discipline or whether the offense would be sep-
arate. Barczak indicated that he had not yet decided. At
the close of the meeting Barczak informed Galewski and
Lisowe that, having declined to pay for the facepiece,
they would be suspended for an 8-hour period.50 At that
juncture, Barczak allegedly took the telephone and
slammed it down on the desk stating that if they did not
like this treatment, they could call an agent of Region 30
of the National Labor Relations Board.si
After the May 19 meeting according to Barczak's testi,
mony Supervisor Huttle reported to him that Galewski
was observed singing a tune with lyrics to the effect
"We take our job seriously at Fisher Nut factory," con-
duct taken by supervision as a gesture of ridicule toward
Meda-Care.
49 That day Lisowe and Galewski were running the air conditioner in
unit 70 when in the midst of a call the engine failed, and would not turn
over even when the air conditioner was shut off Galewskt notified the
dispatcher and another unit was sent to transfer the patient to the hospi-
tal
so Only the imposition of the suspension against Galewski is chal-
lenged by the General Counsel as illegal . There is no allegation that the
discipline meted out to Lisowe was unlawful Nonetheless, the General
Counsel contends that Lisowe and Galewski were engaged in concerted
activity protected by Section 7 of the Act when the concertedly ex-
pressed their determination not to pay for the missing facepiece. Whether
or not legal under Wisconsin law, an issue that has not been conclusively
litigated in this proceeding, Respondent's established work rules provide
that when items are missing and unaccounted for, the crew that checked
those items present at the beginning of their shift will be assessed half the
replacement cost See R Exh 5 This is not a situation in which unaffect-
ed employees gathered to protest employment policy as an abstraction, or
sought change therein through the process of collective bargaining. Here,
extant policy was violated Sec 7 of the Act does not serve to insulate
employees from discipline for noncompliance with established employ-
ment policies, whether the misconduct is waged singularly or in concert.
51 During the course of this conversation Barczak also charged Lisowe
and Galewski with an excessive response time on a May 17 call. Howev-
er, after Galewski asked that the logs be checked, Barczak acknowledged
his error The General Counsel indicates that the accusation by Barczak,
considered in the context, indicates that he was searching "frantically"
for a reason to get rid of Galewski Anything is within the realm of pos-
sibility However, considering the baseless accusations made throughout
this proceeding on all sides, and the deteriorating relationship between
Barczak and Galewski dating back to January, it is just as possible that
this and other examples of overreaching were provoked by the combat-
ive stance of Galewski and his resistance to Barczak's authority, rather
than any activity protected by the Act At least, Barczak was not so car-
ried away as to hold firm with this accusation without investigating the
facts. Indeed, Barczak did back off after determining from the logs that
the particular time was acceptable.
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Also on May 19, Galewski was dispatched by Mary
Jane Barczak to an address on Pierce Street. Later Rus-
sell Barczak, himself, received a telephone call from Ga-
lewski seeking verification in that no address correspond-
ed with the designated location. Barczak provided the
address that his wife had logged in writing which proved
to be correct.52 Barczak then called Attorney Peck. The
events of May 19 were reviewed, including what had
transpired at the meeting concerning the missing equip-
ment and materials, and the response by Galewski to the
wrong location. The decision was made to put him on
indefinite suspension.
On Saturday, May 20, in a telephone conversation
with Barczak, Galewski was informed that he would be
suspended indefintely. Barczak testified credibly that
when he informed Galewski of the suspension and at-
tempted to communicate the reasons, his efforts were
frustrated because Galewski simply laughed at him.
According to Barczak, about May 24 he, together with
Peck, decided to discharge Galewski on the basis of the
"entire file," including the suspension for the red lights
and sirens and the suspension for his parking in a man-
agement spot. Also involved was the fact that though
Galewski in March had provided a letter noting what
was expected of him, his conduct in May violated those
standards, by manifesting a "total disregard for rules and
regulations."
On May 25, Galewski received another telephone call
from Barczak who indicated "as of this date, you're ter-
minated." According to Galewski, the reasons afforded
by Barczak were "the missing face piece, checkoff list,
past performance and present attitude."53 Barczak again
credibly claimed that he had difficulty reciting all the
reasons for the discharge because Galewski reacted as if
the matter were a "big joke."54
Respondent's case against Lisowe opened in early
May, when the latter was late by some 11 minutes on
May 1 and some 14 minutes on May 4. Subsequently, on
May 14, Barczak inquired of Lisowe as to the reasons for
the lateness. Lisowe testified to having explained that
there was construction work on the route he normally
takes to work, and that this was the reason for the delay
on both dates. On May 17, Lisowe was given a warning
by Barczak, which stated as follows:
52 Barczak testified that he was in the kitchen when Mrs Barczak dis-
patched the crew and that he observed her reading from the call sheet in
making the dispatch to the crew Although Barczak opined that Ga-
lewski was responsible, he conceded that he could not be certain of this
fact, and that it remained possible that his wife may have misread the ad-
dress
n Barczak, on inquiry by Galewski, indicated that a termination letter
would be provided However, Respondent did not oblige in this respect
54 Although I have many doubts about much of the testimony that was
given on both sides in this case, it was my impression that Galewski con-
ducted himself as if immune from any form of legitimate discipline and
licensed for disobedience by the Act At least in connection with the Mt
Carmel incident, documentary evidence establishes that Galewski dared
management to invoke discipline in connection with what Barczak and
Peck believed legitimately to have been a disregard of Galewski's respon-
sibility as an EMT. Barczak's testimony that Galewski manifested arro-
gance by laughing at management efforts to invoke discipline struck me
as entirely probable and in keeping with tendencies manifested in other
respects by Galewski
Although we value you as a Company employee
we cannot tolerate tardiness without good reason.
The importance of being on time is imperitive [sic]
to servicing our customers not to mention the incln-
veince [sic] to your fellow employees for having to
stay over to cover for your abtentce [sic] and possi-
ble overtime cost. Discipline including suspension
will result the next time you are tardy without an
exceptable [sic] excuse.55
According to Barczak, when he met with Lisowe on
May 14 and inquired as to the reasons for Lisowe's late-
ness, Lisowe simply said, "I just did not leave early
enough." Barczak denied that Lisowe mentioned a con-
struction project or any' other problem he experienced en
route to work. Barczak related that had Lisowe asserted
any justification, 56 no formal warning would have
ensued.57
Following the 8-hour suspension of May 19, "for the
failure to pay for the face mask," Lisowe, on May 23,
received a dispatch to St. Luke's Hospital. The call was
transmitted to Lisowe by Russ Werner, a part-time dis-
patcher and EMT. According to Werner, Lisowe was in-
formed that it was an emergency transfer and that he
would need to take a portable EKG monitor on the run.
He was also informed that oxygen would be required,
and that a nurse would accompany him on the trip be-
cause the patient would be on IVs. Lisowe was also told
that he might possibly need a bag mask unit to use in
transporting the patient to the unit.58 According to
Lisowe during the course of his conversation with
Werner, there were two interruptions by another phone,
which Werner answered. Other than that there is no
conflict as to the salient aspects of what was said during
the course of this dispatch.
Lisowe and his partner Tim Brege responded to the
call. Lisowe, however, forgot the EKG. On the arrival
at St. Luke's Hospital, Lisowe telephoned Werner, who
sent the EKG machine with another crew. According to
Lisowe the EKG machine arrived approximately 10 min-
utes later,59 and the balance of the run was handled by a
second crew. Lisowe conceded that his partner would
not have heard Werner's instruction that he take the
EKG machine.
Werner first reported the incident to Assistant Manag-
er Huttle. The next day he met with Huttle directly.
Huttle then reported the incident, to Barczak who re-
quested that Werner provide a written statement.60
55 See G C Exh 26
56 I credit Barczak's testimony, which conforms with the Company's
statement of position appearing in G C Exh 26 Lisowe signed that state-
ment indicating that he concurred with the Company 's position in that
respect
57 There was no allegation challenging the legitimacy of this warning
58 Werner testified that while he-told Lisowe that he was not absolute-
ly certain that the bag mask would be necessary, he did instruct that the
EKG machine would definitely be used Werner also explained to
Lisowe that the EKG machine could be broken down in to components
for ease of transport He estimated the conversation to have taken 5 min-
utes at most . He could not recall that Lisowe asked him any questions.
59 Lisowe explained that the matter was without consequence in that
the patient was not ready for transport prior to the second crew' s arrival.
60 See R Exh 10
MEDA-CARE AMBULANCE
After receiving the report, Barczak reviewed the
entire matter with Attorney Peck. According to Barc-
zak, no decision was made at that time concerning the
discipline of Lisowe but it was agreed that if further a
justification were developed in his meeting with Lisowe
he would discuss the matter further with Peck .61 How-
ever , in the meeting with Lisowe, Barczak stated that
Lisowe could give no reason., but simply stated, "I
forgot." From this Barczak concluded that Lisowe
simply did not care .6 2
Lisowe contradicts Barczak's testimony that he gave
no reason . According to' Lisowe, when asked why he
forgot the EKG machine, he indicated that because of
the number of directions given to him by Werner and
the length of the telephone call he became confused.
Lisowe also claims to have observed that others had for-
gotten EKG machines under previous management. To
this, Barczak allegedly responded, "Well, just because
management has changed , it doesn't mean that the rules
have changed."
Barczak testified that it was in the course of this May
25 interview that he decided to discharge Lisowe be-
cause acceptable justification for forgetting the EKG ma-
chine was not forthcoming. The fact that Galewski had
also been terminated that day was discounted by Barczak
as sheer coincidence. Barczak told Lisowe that he had
been given many chances in the past and that he was
now terminated because his attitude towards Barczak
had changed drastically during the last month . Included
in the reasons given were Lisowe's refusal to pay for the
facepiece, his "tardies ," and his having forgotten the
EKG machine.
By letter dated June 6, 1982, Barczak wrote Lisowe, de-
tailing the reasons for the decision to terminate.63
5. Conclusions concerning the issues of
discrimination
The General Counsel has represented a strong prima
facie case. That Respondent might well have singled out
Galewski for unlawful dsicrimination , and taken similar
action against Lisowe as a means of giving credibility the
elimination of Galewski is readily inferrable . Respond-
ent's hostility to the assertion of rights guaranteed by the
Act is amply chronicled. Dating back to the summer of
1981 when employees first - found a need for collective
action , Darwin Larsen , Respondent 's co-owner , informed
employees "if union activities continued , he would close
the Company down . . . [and] that he might take certain
privileges away from them."64 And beyond that Bonnie
61 Just what Barczak expected of Lisowe is a mystery Werner had
reported that Lisowe failed to offer any excuse other than having forgo-
ten then the EKG, and he testified that Lisowe did not attribute the inci-
dent to the number of instructions given or any confusion on his part.
62 Barczak claims to have been instructed by Attorney Peck that he
was to use extreme fairness in dealing with employees . However, to
equate the absence of justification with a lack of concern is hardly sug-
gestive of the open-mindedness of one having any deep commitment
toward fair dealing
as See G C Exh 26 It is noted that though the letter was dated June
6, the envelope carried a postmark of June 25
64 266 NLRB 1208, 1210
489
Lund, an EMT-dispatcher in June 1981, hosted a meet-
ing of employees attended by a union official . In connec-
tion with that meeting Yvonne Larsen , a co-owner of the
Respondent , questioned James and Bonnie Lund con-
cerning the purpose of the meeting and who would
attend . Managment 's curiosity was extended when, later,
on June 28 ; Jonathan Kostreva, Respondent 's personnel
manager, engaged in surveillance of employees as they
attended a meeting at the offices of 1199W.65
On July 22 , 1981, Barton Peck, Respondent 's attorney
addressed a meeting of employees held at Respondent's
station 1 . He spoke concerning the pros and cons of
having a union and offered that an employee committee
presented an alternative to outside representation. At
some point , Peck requested that the employees discuss
the matter among themselves, and the management offi-
cials left. The employees conducted a vote and elected
to form an internal committee . Peck indicated that if em-
ployees were to become dissatisfied after 3 or 4 weeks of
negotiations , they could form an outside union.66
Bonnie Lund was a key spokesman for that committee.
According to findings by the Judge Scocoloff "on
August 31, September 1 and September 2 . . . Bonnie
Lund distributed copies of a letter from the committee to
the employees stating that the committee had not
achieved progress in bargaining and, therefore , recom-
mended affiliation with the Union." The committee
asked for affirmative votes for that action on September
4, 7, 8, and 9.67 On September 4, Bonnie Lund was un-
lawfully terminated.68
Notwithstanding the union animus evident from its
past dealings with employees and Galewski's activity on
behalf of the employee committee and FEMT, the Re-
spondent contends that Galewski was terminated for le-
gitimate reasons based on a series of incidents commenc-
ing in early February 1982. I am convinced that Ga-
lewski extended his adversary posture beyond the role of
a union representative and into his job performance and
that he thereby reflected an attitude in discharging his
employment duties, which was resistive of management,
its policies , and authority . In short , credible evidence
tends to establish that Galewski engaged in a type of
misconduct that would have rendered future employ-
ment intolerable , and signaled persuasively that he would
have been discharged even had he not engaged in con-
certed protected activity. See, e.g., Wright Line, 251
NLRB 1083 (1980). Prior to his hire by Respondent, Ga-
lewski had been terminated involuntarily by two other
ambulance services operating in the Milwaukee metro-
politan area. One discharge admittedly was on the stated
ground that Galewski was "constantly causing problems;
and . . . [his] association with others was difficult, and
. . . [he] did not follow orders."
Galewski's problems with others continued while in
the employ of the Respondent prior to his involvement
in union activity . Thus, early in his employment with
Meda-Care, Galewski held a supervisory position but
65 Ibid.
66 Ibid
67 Ibid
66 Ibid
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was removed by ultimatum and resignation because he
was unable to get along with personnel due to a demand-
ing, stubborn, and in flexible disposition.69 Later, his
confrontational stance with General Manager Barczak
and Attorney Peck developed into a continuing phe-
nomenon. It began shortly after Barczak was elevated to
general manager. Galewski was quick to to serve notice
that Barczak was to be engaged in a struggle for his au-
thority. I am convinced that notwithstanding Barczak's
posting of notice restricting EMT access to management
parking spaces, on February 4 Galewski balked when
Mrs. Barczak denied his request, and deliberately parked
in a prohibited spot as a defiant gesture of pique.?
Galewski's arrogance toward management was again
made evident in connection with the Mt. Carmel inci-
dent. It is indisputable that during that entire run, an
emergency at that, Galweski elected not to use red lights
and siren. It is also clear that a representative of the
nursing home was displeased with his response time. In
my opinion, having heard all the evidence, I am con-
vinced that his failure to use either lights or siren, at
least during the nonfreeway stages of the run was incom-
prehensible.7 i Although one might speculate as to his
motivation from the outset of this incident, it subsequent-
ly became clear that Galewski would seize on the after-
math of this incident as a forum for elevating his own
point of view over management's authority. I believe the
testimony of Barczak that during the course of Respond-
ent's efforts to deal with the issue, Galewski and his rep-
resentative, Drieblatt, repeatedly ridiculed Barczak and
Respondent's attorney, Barton Peck. The heavy-handed-
ness of Galewski's position was marked by the declara-
tion that "a clear policy on running red lights and siren
at all times during a code 3 . . . would be inherently un-
reasonable." And when questioned by Attorney Peck as
to whether he would run a Code 3 emergency in the
future with red lights and siren, Galewski admittedly re-
69 The foregoing is based on the credited, uncontradicted testimony of
Russell Barczak.
70 Galewski while on the stand professed his innocence of all miscon-
duct charges levied by the Respondent He seemed to have an excuse for
everything. My belief that he and Gary Hansen afforded false accounts of
the parking incident was so strong as to suggest that Galewski himself
was highly sensitive to his callous disregard of published employment
policy on the occasion in question
71 To the extent that the testimony of Galewski and Kleatsch are in
conflict, the description of traffic conditions by the latter is preferred as
the more reliable Thus, at the outset of this run, the unit had to ap-
proach and enter a protected boulevard, then make a left turn through
traffic and pace through two traffic lights before reaching the access to
the expressway. It is understandable that Respondent's officials were dis-
turbed by Galewski's failure to assert the right of way under the traffic
conditions that existed on this leg of the run, and Galewski's response
that they were wrong and he was right I would note in this connection,
that although Galewski and several of the General Counsel's witnesses
attempted to persuade me that red light and siren are inextricably linked
with the operation of emergency vehicles at high speed, this quite clearly
is not the case, Only with the use of red lights and siren does an emer-
gency vehicle have the right of way. The use of visual and audible alerts
at even the slowest speeds , including a standing position , in emergency
situations is suitable to secure right of way through traffic and to insulate
the emergency vehicle from liability should the right of way be withheld
by motorists. Argumentative testimony was also adduced by the General
Counsel that red lights and siren ought not be used to clear traffic be-
cause certain drivers might panic This proves too much For it relates to
a possibility that will always exist, and if honored, would foreclose use of
red lights and siren altogether
sponded "not necessarily." Indeed, Galewski's misguided
view that driver discretion takes precedence over any
management policy72 caused him to inform Peck direct-
ly that there were situations where he would not go red
lights and siren "even though . . . specifically told to do
so . . . by a company official." This commitment to con-
tumacy was backed by Galewski's warning to manage-
ment that any discipline invoked in connection with the
Mt. Carmel run would result in the filing of unfair labor
practice charges with the National Labor Relations
Board.
Respondent's reaction was perfectly understandable.
Conduct that it viewed rightfully as irresponsible was
met with a defiant counterchange that management
could not impose its will on this employee. In short, Ga-
lewski created a situation whereby management author-
ity, if to survive with any degree of credibility, impelled
discipline in consequence of this incident. Accordingly,
the suspension meted out in this case was perfectly legiti-
mate.
The final incident leading to the discharge involved
another clear attempt on the part of, Galewski to frus-
trate Barczak's attempt to enforce an employment policy
Galewski's rejection and declared refusal to abide by Re-
spondent's written policy concerning equipment and ma-
terials was expressed repeatedly prior to his suspension
and discharge.
In sum , I am convinced based on the credited evi-
dence and the most probable inferences that Barczak was
provoked by Galewski into a struggle for authority
during this entire period between February 4 and the in-
definite suspension of May 20. There is no question that
Barczak from time to time during this period criticized
Galewski for improper performance under exaggerated
or highly speculative circumstances in which no miscon-
duct could be substantiated. 73 And the issue of motiva-
tion can never be free from doubt when a key protago-
nist is repeatedly disciplined and then terminated under
timing that is suspicious. This is particularly so when
much action occurs against a background evidencing that
unlawful discrimination is not without precedent in the
employer's dealings with statutory rights of its employ-
ees. Here, however, the traditional indicia of proscribed
motivation are overcome by a discriminatee who could
72 There is not a scintilla of evidence in this record suggesting that
management in the emergency transport industry is required by any rec-
ognizable authority to allow EMTs such discretion From all appear-
ances , subject to limitations not relevant here, the matter is committed to
traditional prerogatives of management.
73 In this category are accusations concerning Galewski's having made
runs to the wrong location In their mutual eforts to portray the oppo-
nent in the most undesirable light, cross-accusations made by the parties
include references to these incidents Thus, the General Counsel insmu-
ates that erroneous locations were deliberately provided Galewski by dis-
patches in order to set him up On the other hand, Respondent's wit-
nesses would have me believe that responsibility for these misadventures
lie in Galewski 's shortcomings In this regard , although hostilities in this
case appear to have been at feverish pitch dating back to February, I
doubt ill will would have provoked a dispatcher to deliberately give an
erroneous address on an emergency call nor do I believe that an ambu-
lance driver would have deliberately driven his unit to the wrong loca-
tion The cross-accusations involved here are of no greater relevance in
assessing the ultimate issue than other examples of overreaching by both
the General Counsel and the Respondent
MEDA-CARE AMBULANCE
not draw the line between the protected status he held as
a union representative and an adversary of employee in-
terests, and his time-honored responsibility to his Em-
ployer while performing on the job. Galewski's rejection
of managerial authority and his challenge to established
employment policy developed within the spectrum of re-
sponsibility imposed on him as an employee. It was a
course of conduct alien to his role as an employee repre-
sentative or any form of activity protected by the Act.
Despite the abounding union animus, timing, and the fact
that in other respects the dischargee had shown himself
to be a capable employee, credible evidence persuades
that Respondent suspended Galewski on February 5,
March 3, and May 20, and then discharged him on May
25, 1982, on the basis of his overall behavior pattern,
which would have inspired like disciplinary action had
Galewski not engaged in a single act protected by Sec-
tion 7. The 8(a)(1), (3), and (4) allegations in this respect
shall be dismissed.74
Having concluded that Galewski was terminated for
legitimate cause, the case against Respondent concerning
the treatment of Lisowe stands essentially upon an inde-
pendent challenge to the propriety of Respondent's rea-
sons for terminating the latter. For unlike Galewski,
there is little basis for suspicion that Lisowe would have
been singled out for proscribed discrimination. Thus, it
does not appear that he had engaged in any activity pro-
tected by the Act prior to the Union's sweeping victory
by a vote of 17 for, and 4 against in the Board election-
of March 5 and 9, Lisowe's own testimony reveals that
after April 1 he discussed the Union with Galewski and
acted as a conduct between Galiewski and nonmembers
to encourage them to attend union meetings at Galews-
ki's home, where they might voice their opinions con-
cerning the Union and determine the benefits they could
derive therefrom., Apart from his alleged execution of an
authorization card, there is no other evidence of union
activity on his part. Although Lisowe had been subject-
ed to unlawful interrogation following the March elec-
tion,75 on the basis of the' record as a whole any infer-
ence that Respondent would have singled out Lisowe for
discriminatory discharge is unwarranted. Contrary to the
General Counsel's challenge, on balance, I credit Barc-
zak's testimony that Lisowe was terminated for legiti-
mate reasons, consisting of his unexplained latenesses on
May 2 and 4, the attitude manifested in his resistance to
management's policy concerning the employee account-
ability for lost materials and equipment, as well as his
negligence in connection with the EKG machine on the,
emergency dispatch to St. Luke's Hospital.76 According-
74 There is no evidence to support the allegation in the complaint that
prior to the February 5 and March 3 suspensions, Galewski "gave testi-
mony to the Board in Cases 30-CA-6609, 30-CA-6746, and 30-CA-
7030 "
75 Though Lisowe was not a highly convincing witness, I have accept-
ed his uncontradicted testimony concerning his involvement in union
acitvny.
76 The General Counsel's challenge to the grounds assigned for termi-
nation of Lisowe included testimony that another EMT went undisci-
plined for forgetting an EKG machine Thus EMT Thomas Durley testi-
fied, in response to prejudicially leading questions, that, although he
could not recall the timeframe, he too had been instructed to carry an
EKG machine on a run, but forgot. The probative value of this testimony
491
ly, I shall dismiss the allegations that Lisowe was termi-
nated in violation of Section 8(a)(1), (3 ), and (4) of the
Act.
E. The Alleged Refusal to Bargain
1. The refusal to provide information
It is alleged that Respondent violated Section 8(a)(5)
and (1) of the Act by its -refusal pursuant to FEMT's re-
quest since June 15, 1982, to provide the latter a copy of
its malpractice insurance policy.
Respondent acknowledges that on June 15, 1982, the
Union first requested a copy of the aforementioned insur-
ance policy. Oral requests were again made on July 21,
August 5, and finally a written request was made on De-
cember 7, 1982.77 The requested information was not de-
livered to the Union until February 9, 1983. Respondent
does not contest the assertion on behalf of the General
Counsel that such information was necessary and rele-
vant to the Union's performance of its function as collec-
tive-bargaining representative. In agreement with the
General Counsel, it is concluded that the 8-month delay
in providing information highly relevant to the bargain-
ing process was unreasonable. See, e.g., Unoco Apparel,
208 NLRB 601, 610 (1974)., Respondent's effort to excuse
this response on the basis of alleged union misconduct in
connection with the October picketing and handbilling
was unpersuasive., First, it is noted that Respondent's ter-
mination of negotiations based on such conduct did not
occur until October 20, 1982, some 4 months after the
Union's request. Thus, even were I to find that the
Union's effort to publicize its dispute transcended the
bounds of protected activity, the delay of 4 months was
unreasonable and inconsistent with the demands imposed
by good-faith collective bargaining. Accordingly it is
found that Respondent violated Section 8(a)(5) and (1) of
the Act by refusing on request to furnish relevant infor-
mation regarding a condition of work on a timely basis.
2. The unilateral change in health insurance
There is no dispute that following the certification,
about December 25, 1982 , Respondent- switched insur-
ance carriers and did so without prior notice to or af-
fording the Union an opportunity to bargain . There can
be no dispute that the health insurance program covering
the EMTs was a mandatory subject of collective bar-
gaining. See, e.g ., W W. Cross & Co. v. NLRB, 174 F.2d
875 (1st Cir. 1949). 'Supporting this allegation further is
the fact that major medical features of the old and new
was weakened not only by the "leading" nature of the critical examina-
tion but by the further fact that Durley could not remember whether he
or fellow EMT Steve Johnson took the call Johnson did not testify and
hence a critical segment of Durley's testimony appears to have been
founded on hearsay. Moreover, his testimony does not reveal that this
was an emergency call. In any event, in this instance the crew was to
meet an airplane, which turned out to be 30 or 40 minutes late For this
reason, dispatcher Huttle gave permission for the crew to return and pick
up the EKG. They did so and returned to the airport before the plane
arrived. Barczak credibly testified that he was unware of the incident and
I am not conviced that in this respect Lisowe was victimized by disparate
treatment
77 See G.C. Exh 36.
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
policies reflect substantial differences in deductible
amounts,78 coinsurance features, procedures for cover-
age of dependents, and benefits available for treatment of
mental, psycho-neurotic, or personality disorders, includ-
ing outpatient expenses for drug addiction and alcohol-
ism. Obviously, such a shift in features would impact dif-
ferently depending on individual needs of employees, and
Respondent's failure to provide their designated repre-
sentative the opportunity to discuss and make proposals
with respect to this important issue violated Section
8(a)(5) and (1) of the Act. See, e.g., NLRB v. Keystone
Consolidated Industries, 653 F.2d 304 (7th Cir. 1981).
3. Respondent's withdrawal of its final offer and
curtailment of negotiations based on alleged
disloyalty
The complaint issued on February 11, 1983, alleged
that Respondent violated Section 8(a)(5) and (1) of the
Act by conditioning a final offer on October,7, 1982, on
the Union's cessation of protected concerted activity,
and by, on October 20, 1982, withdrawing its final offer
and thereafter refusing to meet with the Union because
of the aforesaid protected concerted activity.
Respondent's position in this regard derives from the
handbilling79 and picketing that began on October 6. At
a negotiating meeting on October 7, Respondent's coun-
sel 'expressed outrage at the message conveyed to the
public by this action, describing it as "infantile,"
"counter productive," and "untruthful." He indicated
that he would attempt to put an end to such activity by
making the Union a final contract offer, if the Union
agreed that all would act to promote the Company's in-
terests. There was some indication by `the Union that it
had every intention to "work together" with the Compa-
ny.
Thereafter, on October 14, a news item appeared in
the AFL-CIO Labor Press,80 propagandizing against the
Company's posture in the negotiations. On October 19,
the employees resumed picketing and handbilling.111 On
October 20, a further bargaining session was held. In the
course of that meeting Peck informed the Union to the
effect that no final proposal would be forthcoming, inas-
much as it had been proposed on October 7 as a means
of curtailing the Union's publicity efforts, a purpose that
the Union had frustrated. Also during the, course of that
session, when Peck was asked his position on wages, he
responded that he would not provide a wage proposal
until the Union agreed in advance to Respondent's pro-
posed loyalty clause, and that if the Union did not agree,
the Company would pay no more than the "minimum
78 The deductible figure under the canceled policy was $100, Al-
though there was testimony by Barczak to the contrary, as I read the
new policy, the major medical deductible under the new policy appears
to have been $500 Barczak testified that , pursuant to an arrangement
with the insurance company , Respondent planned to reimburse employ-
ees for the differences in the coinsurance features of the two plans The
nature of this arrangement was undisclosed and hence no basis is fur-
nished by Respondent for concluding that employees under the new plan
would be the beneficiaries of enforceable guarantees with respect to the
differences in coverage.
79 See G C Exh 35(a)
80 See G C Exh 35(c)
81 See G C Exh 35(b)
wage " The so-called loyalty clause was first proposed
by Respondent in a letter dated July 16, 1982,82 from
Peck to Dreiblatt . It provided as follows:
Employees will individually and collectively per-
form their work and fulfill their duties in a loyal,
prompt and efficient manner, and they will use their
influence and best efforts at all times to protect the
property of the Company and to protect and pro-
mote the Company's best interest . Employees will
co-operate with the Company and with our other
employees of the Company.
Consistent with the testimony of Barczak , Respondent
concedes that as of October 20, it terminated negotia-
tions indefinitely because of the aforedescribed handbill-
ing and picketing.83
By way of defense , Respondent contends that the
handbills distributed on October 6, and the article ap-
pearing in the AFL-CIO Labor Press on October 14,
1982, were manifestations of disloyalty unprotected by
the Act . First, the publicity is challenged as having false-
ly accused the Company of progressively reducing its
wage proposals despite the Company's expansion and
prosperity . In this respect , the handbill , as reprinted in
the AFL-CIO Labor Press, stated as follows:
. . . we are paid only $4.16 to $5.23 an hour.
(Meda-Care Ambulance service gets $75 per call).
We have not received any wage increase for three
years, despite the Company's expanding and getting
new business. That's why we organized, in March
1982, as Local 5060, The Federation of Emergency
Medical Technicians, AFT, AFL-CIO, and are
now negotiating for first contract.
The employer's response? He's gone from an ini-
tial "status quo" position to one of a 3-1/2 percent
-wage decrease. Now he's talking about a 5 percent
wage decrease.
Contrary to the Respondent, there is no evidence to sub-
stantiate that the aforesaid references were less than ob-
jective or untrue. Indeed, there is every reason to believe
that the charges levied constituted fair comment con-
cerning the Company's wage position.
Beyond the foregoing, Respondent cites the following
quotation of Galewski, which was set forth in the Mil-
waukee 'Labor Press as a further example of malicious
union literature:
. . . the Company has been less than responsive to
the basic needs of its employees and to working
conditions of EMTs, which have direct impact of
the service given to the public . . . .
. . . the employer refused to grant a demand for
basic sanitary facilities such as showers . . . .
82 See G C. Exh 33
83 Respondent did agree to a- resumption of negotiations ultimately,
and the parties again met on January 20, 1983
, MEDA-CARE AMBULANCE 493
Respondent makes similar - claim with respect to the fol-
lowing excerpt from the handbill:
He's refused showers, pooh-poohed sanitary wash-
up facilities for EMT's who, after all, deal with
vomit and other nasty bodily emissions . . . . It is
possible to profitably serve the public, rather than
to profit at the expense of employees and the
public.
Here again , the Union's publicity did not entail departure
from the truth. Respondent had no shower facilities for
employees, and at station 1, men and women shared the
same restroom facility. Pending at the time of these pub-
licity efforts was a union proposal urging Respondent to
"provide proper facilities for employees' personal hy-
giene-including showers." 84 There is no evidence that
Respondent at any time agreed to that , or a similar pro-
posal.
Finally, Respondent objects to the reference in the
handbill on the newspaper article that the employer
"doesn't want to use seniority for layoff and recall," but
just wants to "choose" who is retained and let go . In this
respect , Respondent argues that this characterization is
false in that the Company had .accepted seniority as a
consideration in both layoff and recall situations through
a written proposal . However, the only written proposal
appearing in the record is that provided to the Union on
July 16 , 1982.85 From examination of that,proposal, it is
apparent that seniority was not accepted as the universal
criterion for layoff or recall. 86
Contrary to the Respondent , the references in the
union literature involved propaganda patently linked
with negotiations and its progress. Assertions contained
therein were not untrue to the point of exceeding fair
comment. Any impact on the quality of service provided
by the Employer was plainly incidental and subordinate
to the effort to publicize a basic labor dispute. The com-
mentaries were 'neither disloyal, malicious, nor in pursuit
of any objective other than to force concessions at the
negotiating table. The content of the handbills and the
news article were readily identifiable as an appeal for
public support in an ongoing labor dispute, rather than a
separable, gratutous attack in disparagement of the Em-
ployer's service or product. Cf. NLRB v. Electrical
Workers IBE W Local 1229 (Jefferson Standard Broadcast-
ing), 346 U.S. 464, 476 (1953). Such being the case, the
protection accorded by Section 7 of the Act is not re-
moved on the basis of the employer's sensitivity or sub-
jective reaction to the employees airing of "what may be
highly sensitive issues." See Allied Aviation Service Co.,
248 NLRB 229, 231 ( 1980). Nor does it appear that the
statute imposes broader constraits on public criticism by
84 See G .C Exh 31,p15
85 See G C Exh 33, p 4
86 Pursuant thereto , Respondent in the event of layoff , was free to
select at its discretion from among temporary , probationary and part-time
employees Full-time employees would only be protected by seniority to
the extent that in the Company's opinion "the remaining employees have
their skills and can perform properly the work of the employee to be re-
leased." With respect to recall, although seniority was a criterion, it was
conditioned on " the opinion of Management [that] the employee has the
skills and can properly perform the available work to which assigned by
the Company "
employees in the health care industry than in other in-
dustries. See, e.g., Community Hospital of Roanoke Valley,
220 NLRB 217, 223 (1975). In sum, it is concluded that
the employee conduct in question was protected by Sec-
tion 7 of the Act and, hence, Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by withdrawing a contem-
plated final offer and then curtailing negotiations because
employees persisted in such conduct.
4. Insistence on loyalty clause during 1983
negotiations
In addition to the foregoing , the complaint which
issued on April 28, 1983, alleged that Respondent further
violated Section 8(a)(5) and (1) of the Act by between
January 20, 1983 and March 9, 1983, conditioning "any
and all" bargaining on the Union's agreement to Re-
spondent 's proposed loyalty clause. This allegation tele-
scopes and is remedially cumulative to claims of illegal-
ity emanating from Respondent 's demands in October
1982. Nonetheless, it appears that when negotiations re-
sumed on January 20, 1983, Dreiblatt asked Peck for his
position on wages. According to Dreiblatt's uncontra-
dicted testimony, Peck indicated that a wage proposal
would not be forthcoming until the Union agreed to the
loyalty clause , and that should the latter fail to agree, the
Company's wage proposal would be limited to the Fed-
erally guaranteed minimum. Furthermore , during a sub-
sequent negotiating session on March 9, 1983, Peck re-
ferred to the fact that the Supreme Court had condoned
an employer's right to fire disloyal employees and that
arbitrators generally had recognized disloyalty as "just
cause" for discharge. He indicated that he wanted a
clause in' the contract that would permit the Company to
bring a cause of action against nonemployee union repre-
sentatives, and therefore proposed the following:
Employees will individually and collectively per-
form their work and fulfill their duties in a safe,
prompt and efficient manner and they and their rep-
resentatives will use their influence and best efforts
at all times to protect the property and reputation
of the Company and consistent with Federal and
State laws to protect and promote the Company's
best interest. [Emphasis added.] 87
Peck indicated that if the Union would agree to the
above, the current wage rate would be maintained, but
that he also wanted language to the effect that if the loy-
alty clause were violated, all wage rates would be re-
duced to the Federally guaranteed minimum.
Contrary to the allegation in question , there is no evi-
dence to substantiate that Respondent in 1983 impeded
bargaining unlawfully by conditioning further negotia-
tions on union acceptance of its loyalty clause. The ex-
pression of any such condition was unsubstantiated factu-
ally, All that appears is that Respondent indicated that it
would not come forth with wage proposals until the
Union agreed to the loyalty clause. In this posture of the
case, even assuming that the loyalty proposal was a non-
87 See G C Exh. 38.
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mandatory subject of bargaining, the attempt at segment-
ed horse trading that occurred neither took place in the
context of impasse nor contributed to any impasse. Thus,
the testimony simply does not confirm that Respondent
indulged in the degree of "insistence" contemplated by
NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958). That
case does not authorize the Board, under the guise of
Section 8(d) of the Act, to censor the give-and-take dia-
logue of negotiations and to make unfair labor practice
findings on every abstract ambiguity that may evolve in
that process. The mere fact that an employer desires a
provision and expresses a will to hold-up concessions in
limited areas, such as wages, until his proposal is accept-
ed, is not the equivalent of evidence that no agreement
would be, entered without such provision. Borg- Warner,
supra, merely condemns a party's insistence to impasse
on a nonmandatory subject of bargaining. What had
transpired here falls short of any such showing and, ac-
cordingly, it is concluded that Respondent did not vio-
late Section 8(a)(5) and (1) of the Act between January
20 and March 9, 1983, in this respect.
5. The refusal to bargain based on Galeski's
participation in negotiations
Despite his discharge on May 25, 1982, Galewski con-
tinued as president of FEMT Local 5060, and as a
member of the Union's negotiating team. At the same
time, Galewski later obtained employment with a com-
petitor of the Respondent, Cross Ambulance Service.
With Cross, Galewski served as an EMT as well as in
public relations capacity. Part of his duties included gen-
erating new accounts. In April 1983, Barczak learned
that Galewski had solicited Sacred Heart, a customer of
the Respondent, for the purpose of obtaining business for
Cross Ambulance.
On April 20, 1983, Peck wrote Dreiblatt asserting that
Galewski being employed by a competitor, had sought to
obtain business from one of Respondent's accounts. That
letter stated in material part as follows:
... be advised that until Mr. Galewski has been re-
moved as Union ' officer and bargaining committee
member, we will exercise our right to refuse to ne-
gotiate with your Union further,88
Dreiblatt , by letter dated April 26, 1983, responded to
the charges by Attorney Peck as follows:
Galewski:
We are unaware of any campaign of "active
solicit[ation]" of Meda-Care accounts alleged in
your letter, let alone how Mr. Galewski "would
personally benefit."
Parenthetically, it is noted that Galewski admitted
both to having solicited Sacred Heart on behalf of Cross
and as having serviced that facility when an EMT in Re-
spondent's employ.
By letter dated April 29, 1983, Peck reinforced his po-
sition to Dreiblatt as follows:
If Mr. Galewski's representing the Company's em-
ployees, while at the same time soliciting the Com-
pany's accounts and prospective customers is, as the
Regional Office claims, not a violation of the Act
. . . . then the only resource for the Company is to
refuse to bargain with the Union until assurance is
provided that Mr. Galewski is not in a position to
be privy to information which would benefit him
and his present Company as competitors.
Obviously, there is no obligation morally or legally
for the Company to provide Cross Ambulance with
information regarding its labor cost, numbers of
runs, etc. when the Company has no access to simi-
lar information from Cross Ambulance or other
competitors.
Although we recognize that we have an obligation
to negotiate with your organization and wish to do
so, we, consistent with a multitude of laws prohibit-
ing unfair competition as well as conspiracies to re-
strain trade, need not to do so at the expense of our
providing another with competitior advantages
which are not availble to us.
Unless and until we have received assurances from
you that you are willing to negotiate properly .. .
further negotiations are cancelled.89
''Section 7 of the National Labor Relations Act guaran-
tees employees the right "to bargain collectively through
representatives of their own choosing." Under the statu-
tory scheme, "[i]n general, either side can choose as it
sees fit and can control the other's selection there have
been exceptions to the general rule that either side can
choose its bargaining representatives freely, but they
have been rare and confined to situations so infected
with ill-will, usually personal, or conflict of interest as to
make good-faith bargaining impractical."90 "There Js a
considerable burden on a nonconsenting employer, in
such a situation as this, to come forward with a showing
that danger of a conflict of interest interfering with the
collective bargaining process is clear and present."9 i I
am convinced that this burden has been met in this case.
We are here concerned with a business enterprise
whose services are made available within a narrow geo-
graphical area. In Milwaukee County similar services are
provided by only six competing firms. It does not appear
that FEMT Local 5060 or Galewski served in a repre-
sentative capacity with respect to employees other than
those of Respondent.
Galewski had previously been discharged because of
his hostile resistence toward employment policies and
management's efforts to maintain discipline through the
enforcement of those policies. Nonetheless, Respondent
continued to bargain with FEMT despite Galewski's em-
ployment with a competitor in this localized market. Re-
spondent drew the line only after it discovered that its
own customers were being solicited on behalf of the new
employer. Although representatives of the Respondent
89 See G C. Exh 40(1).
9° General Electric Ca v NLRB, 412 F 2d 512, 516-517 (2d Cir. 1969).
88 See G.C. Exh. 40(d) 91 NLRB v. David Buttrrck Co, 399 F 2d 505, 507 (Ist Cir. 1968).
MEDA-CARE AMBULANCE
have "cried wolf" unjustifiably in many stages of this
overall conflict, in this instance their sensitivity was
rightfully placed. Galewski's employment by a competi-
tor in a public relations capacity, which included respon-
sibility for developing broadened sales, and his having
pursued his responsibility in this latter regard by solicit-
ing an account he had serviced in the past while em-
ployed by the Respondent gave rise to a disqualifying
disability. Objectively viewed, it is difficult to imagine
how Respondent, in the light of this discovery and past
recriminations, could have confidence or ever be certain
whether Galewski's participation was oriented to the in-
terest of Respondent's employees, or ulterior to his sepa-
rate and personally held duty to further the economic
posture and public image of a competitor. The appear-
ence is strong, if not overwhelming, that Galewski occu-
pied a position of divided loyalty that could only serve
to hinder the negotiating process and, there being no
overriding compelling justification for his presence at the
bargaing table, it is concluded that Respondent had a le-
gitimate right to demand his exclusion from the Union's
negotiating team and to insist that further negotiations be
conducted only after Galewski had been removed from
any positions that would afford him an opportunity to
formulate bargaining policy or strategy or access to any
information that might be useful to a competitor of the
Respondent. Accordingly, it is concluded that Respond-
ent did not violate Section 8(a)(5) and (1) of the Act by
terminating negotiations "unless and until Robert Ga-
lewski ceased to act as the Union's designated agent for
such purpose."
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. FEMT and 1199W are labor organizations within
the meaning of Section 2(5) of the Act.
3. Respondent independently violated Section 8(a)(1)
of the Act by coercively interrogating an employee con-
cerning his union activity.
4. Respondent did not violate Section 8(a)(1), (3), and
(4) of the Act by suspending Robert Galewski on Febru-
ary 5, March 3, and May 20, 1982, or by discharging
Robert Galewski and Ralph Lisowe on May 25, 1982.
5. Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to provide FENI[T requested information
relevant to the performance of its role as exclusive col-
lective-bargaining representative; by unilaterally chang-
ing its health insurance carrier, without first notifying
the Union and extending it an opportunity to bargain;
and'by unilaterally curtailing negotiations until such time
as employees agreed to terminate their participation in
activity protected by Section 7 of the Act or until their
representative agreed to a proposed "loyalty clause."
6. Respondent did not engage in any unfair labor prac-
tices not expressly found herein.
7. The unfair labor practices described in paragraphs 3
and 5, above, are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
495
Having concluded that Respondent has engaged in
certain unfair labor practices, it will be recommended
that it cease and desist therefrom and take certain affirm-
ative action.
It having been concluded that Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally discon-
tinuing an existing health and welfare program and by
instituting a new health benefits program, it will be rec-
ommended that Respondent make all employees whole
for any financial loss they mave have suffered by reason
of said unilateral change during the timeframe commenc-
ing on December 24, 1982, and continuing until such
time as Respondent negotiates with the Union in good
faith to an agreement or impasse with respect to such
coverage. See East Belden Corp., 239 NLRB 776, 797
(1978). Said reimbursement shall include interest as pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977).92
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record herein, and pursuant
to Section 10(c) of the Act, I issue the following recom-
mended93
ORDER
The Respondent, Meda-Care Ambulance, Inc., Mil-
waukee, Wisconsin, its officers agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union activity.
(b) Refusing to bargain collectively with FEMT as the
exclusive collective bargaining agent of employees in the
following appropriate unit:
All emergency medical technicians employed by the
Employer at its facilities located at 9721 West
Greenfield Avenue, West Allis,, Wisconsin, and 2515
W. Vliet Street, Milwaukee, Wisconsin; but exclud-
ing all guards and supervisors as defined in the Act.
(c) Refusing to bargain in good faith with the exclu-
sive collective-bargaining representative of said employ-
ees by effecting unilateral changes in terms and condi-
tions of work without first notifying and bargaining with
the employee representatives; by refusing on request of
the employee representative to provide, on timely basis,
information relevant and necessary to the performance of
its duties as collective-bargaining agent for the aforesaid
employees; and by curtailing collective-bargaining nego-
tiations because said employees engaged in concerted ac-
tivity protected by Section 7 of the Act or because their
representative refused to agree to a proposed loyalty
clause.
92 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
93 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 .48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole employees in the appropriate unit for
any loss of pay or other benefits they may have suffered
in consequence of the termination of an existing health
benefits plan and substitution of a new plan, and continue
such payments until the Respondent negoitates in good
faith with the Union to agreement or to geniune impasse,
with interest, in accordance with the terms set forth in
the remedy section of this decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the value of benefits due under the
terms of this Order.
(c) Post at its stations in West Allis and Milwaukee,
Wisconsin, copies of the attached notice marked "Ap-
pendix A."94 Copies of the notice, on forms provided by
the Regional Director for Region 30, after being signed
by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or coverd by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaints are dis-
missed insofar as they allege that Respondent violated
the Act other than as specifically found herein.
94 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 Nation-
al 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 "