Mercy Peninsula Ambulance Service, Inc.

National Labor Relations Board - Board Decisions

May 7, 1975

217 N.L.R.B. 829 (N.L.R.B. 1975)

MERCY PENINSULA AMBULANCE SERVICE, INC.
Mercy Peninsula Ambulance Service, Inc. and Doug-
las A. Castle. Case 20-CA-9304
May 7, 1975
DECISION AND ORDER
13Y CHAIRMAN MURPHY AND MEMBERS JENKINS AND
KENNEDY
On January 8, 1975, Administrative Law Judge E.
Don Wilson issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions, and
the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Mercy Peninsula Ambulance Service,
Inc.., San Mateo, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, except that the attached no-
tice is substituted for the Administrative Law Judge's
notice.
1 The Administrative Law Judge, in fn. 19 of his Decision suggests that
the Board 's traditional remedy of backpay, which includes an interest rate
of 6 percent, is not adequate in these days of inflation . While we are, of
course, aware of the current inflation , we note that the rate of inflation has
been fluctuating both up and down and that it differs according to geo-
graphic area . Accordingly , we remain of the view that the established uni-
form rate of 6 percent interest is the measure of recovery which best effectu-
ates the purposes of the Act See Russell Motors, Inc., 198 NLRB 351
(1972).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, the Nationall Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice
and we intend to carry out the order of the Board.
829
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with
these rights. More specifically,
WE WILL NOT terminate or otherwise discriminate
against any of our employees because of their sup-
port for or assistance to Retail Delivery Drivers,
Salesmen & Helpers Union, Local No. 278, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any
other labor organization, or because they engaged
in any union or other activities protected by the
National Labor Relations Act.
WE WILL NOT, in any other manner, interfere
with, restrain, or coerce any of our employees in
their rights to join or assist the above-named
Union, or any other labor organization, or engage
in any other activity protected by the Act, or to
refrain from so doing.
WE WILL NOT require any employee to sign a
statement in which he agrees to become a member
of any labor organization immediately upon ac-
cepting employment with us.
WE WILL offer Douglas A. Castle immediate and
full reinstatement to his former position, or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority
and other rights and privileges.
WE WILL make Douglas A. Castle whole for, any
loss of earnings he may have suffered by reason of
our illegal discrimination against him, in violation
of the Act.
MERCY PENINSULA AMBULANCE
SERVICE, INC
DECISION
STATEMENT OF THE CASE
E. DON WILSON, Administrative Law Judge: Based on a
charge filed by Douglas A. Castle, herein Castle, on June
1974, amended August 22, 1974,1 the General Counsel of
the National Labor Relations Board, herein the Board, issued
a complaint and notice of hearing on August 23, amended
September 13, alleging that Mercy Peninsula Ambulance
Service, Inc., herein Respondent, by various acts violated
1 Hereinafter all dates will refer to 1974 unless otherwise stated
217 NLRB No. 141
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
Section 8(a)(3), (2), and (1) of the National Labor Relations
Act, herein the Act.''
Pursuant to due notice, a hearing in this matter was held
before me on October 24 and 25, in San Francisco, California.
General Counsel and Respondent fully participated. They
have filed excellent briefs which have been fully considered.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
Respondent, a California corporation, has at all material
times been engaged in providing ambulance services from
three locations in San Mateo County, California. In the past
year, during the course and conduct of its business, it received
gross revenues in excess of $500 ,000 and performed services
in excess of $50,000 for Kaiser Foundation Hospitals, and
Kaiser Foundation Hospitals in the course and conduct of its
business received gross revenues in excess of $500,000 and
purchased and received goods valued in excess of $50,000
directly from suppliers located outside the State of California.
At all times material, Respondent has been an employer en-
gaged in commerce and in operations affecting commerce
within the meaning of the Act.
II THE LABOR ORGANIZATION
Retail Delivery Drivers, Salesmen & Helpers Union, Local
No. 278, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, herein the
Union , at all material times, has been a labor organization
within the meaning of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issues
Respondent, at the hearing herein, amended its answer so
as to admit it violated Section 8(a)(2) and (1) of the Act by
requiring, in effect, that its employees sign an agreement, as
part of their application for employment, to join the Union
immediately.'
The issue, here to be determined, is whether Castle was
discharged because he prepared and circulated and caused to
be circulated among the employees," shortly before his dis-
charge, a petition addressed to the Department of Labor
(E.S.A.) requesting such department to investigate em-
ployees' pay insofar as night work and laundry expenses for
employees' uniforms were concerned, and also concerning
the Union. A majority of Respondent's employees signed the
petition shortly before Castle was discharged.' On the other
hand, it must be determined whether Castle was discharged
for cause because of alleged misconduct, violation of Respon-
dent's rules and regulations, etc., almost throughout his em-
ployment by Respondent, which began in October 1973. Fur-
2 At the hearing herein, Respondent admitted violating Sec 8(a)(2) and
(1) of the Act as alleged in par VI of the complaint Counsel for the General
Counsel seeks no monetary relief for such violation
3 Motions to amend the answer in a variety of other ways, not here of great
moment , were granted.
4 About 20 in number, overall
5 About April 19.
ther, Respondent had a contract with the Union which
contained a legal union-security clause. Castle did not join the
Union."
B. TheFacts'
It was about June 15 that Castle, who was an ambulance
driver for Respondent , prepared and circulated and caused to
be circulated a petition among the ambulance drivers and
attendants . In addition to it being a petition , it was also a
letter. It consisted of two pages. It was given to the Depart-
ment of Labor about June 19.8 It was circulated "mostly"
by Castle, himself, though others helped him . It was cir-
culated during working hours and had 17 signatures.
Ferriby, an ambulance driver for Respondent at the time,
had a conversation with McDonald about the day before
Castle was told he was discharged . It was in the main office
at Daly City.' McDonald told Ferriby he had received an
anonymous phone - call from either the San Mateo or Red-
wood City office. He said he had been told that .Castle was
engaged in petitioning E.S.A. (Wage and Hour Control). Mc-
Donald added he was told Castle was also engaged in "peti-
tioning the Union, and writing articles." He then stated, "no-
body could get away with that stuff." He stated that people
couldn't get away with that kind of stuff on him . There was
but one petition . It concerned itself with wages allegedly due
under the E.S.A., laundry expenses , violations of unfair labor
practice law, and provisions of the contract not upheld by the
Union or Respondent.
On the day Castle was discharged , employee Michael Eb-
right heard McDonald speaking on the phone about Castle's
discharge with Joseph Railton, the San Mateo manager. Mrs.
McDonald was also present., The phone conversation lasted
10 or 15 minutes . Ebright, when he testified , did not pretend
to remember everything McDonald said . McDonald said on
the phone that Castle was creating a labor disturbance which
was disrupting employee-management relations in both
6 McDonald, Respondent's president, testified that this is one of the
reasons Castle was discharged Castle was the only employee ever fired for
such alleged cause. The credited evidence is that most of Respondent's
employees did not join the Union after 30 days of employment but they
continued to be employed Bernard Zarry, the Union's business agent testi-
fied that between January and August, not one of Respondent's employees
was discharged because he failed to pay an initiation fee and dues to the
Umon, other than Castle
7 In making findings of fact herein, I note that I was most favorably
impressed by the respective demeanors of Michael Ebright, Steve Ferriby;
and Castle. Each testified in a forthright and straightforward manner and
each impressed me as desiring to and succeeding in telling the truth as he
remembers it To the contrary, I was unfavorably impressed with the respec-
tive demeanors of Kevin Michael McDonald and Joseph Railton and am
convinced that each dredged up a mass of pretexts to conceal and hide their
real reason for firing Castle, viz, his preparation of and circulation of the
petition among Respondent 's employees . It should be noted that Respon-
dent's overall complement of drivers and'attendants was only about 20.
Such being so, I find it was a "small shop." It should be noted that Mrs
McDonald was present when Mr. McDonald told Ferriby he had learned
Castle had been petitioning the E S.A and the Union and was "writing
articles," and that "nobody could get away with that stuff " Mrs McDonald
did not testify and no reason was given for her absence. So, also, was Mrs
McDonald present when Mr McDonald spoke on the telephone in the
presence of Michael Ebright
8 The day Castle was discharged.
9 Mrs. McDonald was present
MERCY PENINSULA AMBULANCE SERVICE, INC. 831
offices.10 McDonald added that if Castle were fired, Railton,
the manager of the Redwood City office, would have no more
labor problems. McDonald told Railton he should have taken
affirmative action earlier. He stated that once Castle was gone
there would be no more labor problems in that office. Mc-
Donald told Railton he had Ebright available to replace Cas-
tle and he would be a good replacement. Ebright was hired
after the phone conversation and told to report to San Mateo.
A week or two later, Ebright was told by Railton "that
Castle had been circulating a petition which was causing
labor problems and was also given a variety of other alleged
reasons for Castle's discharge. Railton told Ebright that Cas-
tle was a "sh- disturber" when Ebright asked if there had
been a problem with Castle.
Late on the morning that Ebright overheard Mr. McDon-
ald speaking about Castle and "labor problems," Railton
phoned Castle and left word for Castle to call him. Castle did
so." Railton gave no reason or reasons, but merely told
Castle he was terminated. There had been no warning of such
action.
Three times, Castle, during his employment, visited the
office of the Union. He wanted to see a copy of the contract
and arrange a plan for paying off initiation fees and dues. One
union representative insisted that Castle sign an application
form for joining, without regard to any schedule of payment.
On several occasions, Railton told Castle he "should" join the
Union, but never told him he would be fired if he failed to do
so. Castle never saw a copy or original of a letter'from the
Union stating he would be terminated if he did not join the
Union.12
Railton testified he was "aware" of the existence of a peti-
tion before he fired Castle. He learned this from various other
employees who told him a petition was going around. I was
singularly unimpressed with and specifically do not credit his
testimony that he didn't "inquire" who was circulating the
petition even though he was "interested." I reject as untrue
his testimony that he made no inquiry because "it was none
of my business." I refuse to credit his testimony that he never
asked any question about the petition although several em-
ployees told him it was being circulated. He admitted he was
interested "in what the petition was about.""
I find that Castle, in preparing and circulating and causing
to be circulated a petition such as the one here involved, was
engaged in activities protected by Section 7 of the Act. I fmd
counsel for General Counsel has established by a preponder-
ance of the probative and substantial evidence that Respond-
ent discharged Castle because he engaged in such
activities.14
Of course, I shall not here ignore Respondent's defenses
10 Daly City and Redwood City. San Mateo was a suboffice.
11 It was Castle's day off
12 Although many employees failed to join the Union pursuant to the
contract, there is no probative evidence that Respondent fired any one of
them because of such failure. I fmd that Respondent's contention that Castle
was fired because he did not join the Union is but one of many pretexts.
13 Railton considered an employee with long hair and wrinkled uniforms
a "sh- distruber," but not one who circulated a petition like the one here
involved
14 He managed to persuade 17 of the approximately 20 employees to sign
the petition Sh- disturber indeed! McDonald mistakenly believed Castle
was also petitioning the Union and such belief was also a reason for Castle's
discharge and made the discharge violative of Sec. 3(a)(3) and (1) of the Act.
and proclaimed reasons (?) for Castle's discharge.
First, there is an affirmative defense that for more than half
a year Castle had enjoyed the benefits of the union contract
while refusing to submit to union initiation or pay periodic
dues, and if Castle "elected not to join said union, he had a
duty and obligation to tender the dues periodically as those
dues accrued." This defense does not suggest that such was
a reason for his discharge. I have already found that the
alleged discharge because of the Union's-demands was a mere
pretext." Castle was never even advised .of such a reason.
Most of Respondent's employees, at least in the first 7 months
of 1974, were not members of the Union.
A second affirmative defense16 was that he allowed his
hair to grow long, refused to wear neckties, and wore dirty
and wrinkled uniforms, all of which was "inimicable to the
welfare of the patients and to the reputation of', Respondent.
I am convinced the Kaiser Foundation would never have
permitted Respondent to permit such a person to service
Kaiser's patients, as Respondent suggests it would have had
to do, over a period of many months. The entire context of
the record reveals that the good-looking Castle may have
permitted his hair to grow long but, I am convinced, not
unduly long. Allegedly, long hair could cause a serious driv-
ing problem if a mental patient grabbed and pulled such hair.
Such would be true of my hair, fairly normal in length."
Uniforms, I am sure, can get wrinkled and dirty through the
normal work of an ambulance driver. This was allegedly an
almost ever-present problem with Castle for months. He was
never warned of possible discharge for such combination of
reasons. He was given no reason for his discharge. He may
have occasionally failed to wear a necktie, but he was never
warned of discharge for such reason. Again, no discharge
until widespread circulation of the petition and no reason
given for the discharge!
For the third affirmative defense, Respondent alleges he
damaged an ambulance involving about $175 in damage. This
was at night. He reported it the next morning. Company rules
and regulations required an immediate report of contact by
the vehicle with anything. This happened 2 months before his
discharge. Again, no warning or threat of discharge. Indeed,
the answer does not even allege he was discharged for such
reason. It only alleges that such conduct by Castle was "suffi-
cient grounds" for a discharge of Castle. Respondent's rules
and regulations were not always posted and were sometimes
mutilated in one fashion or another. This incident is merely
typical of Respondent's thoughts, not when the fact occurred,
but when it was forced to plead a defense to its illegal con-
duct.
A fourth affirmative defense is that "on various and sundry
occasions" Castle, without authorization, used an ambulance
15 McDonald testified Castle was the only employee terminated because
of failure to join the Union. Allegedly he had received about 12 requests
from the Union Of the 12, some quit and others "were discharged for other
reasons." McDonald admitted he did not discharge Castle "solely on
[the Union's] letter " He did not discharge any other employee "even
partly" because of a letter from the Union (See Union Business Agent
Zarry's testimony.)
16 Testimony indicates that most of Castle's alleged misconduct began
with his employment and continued, regularly, from time to time until his
termination . Seven months of alleged continued misconduct but no dis-
charge until circulation of the petition!
17 Price of haircuts.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent to visit nearby high schools and "jog." I find
Railton was with him on at least three of these occasions. He
was never told not so to act. - He was not told he was fired for
such conduct . Other employees in addition to Railton accom-
panied him when he made such use of an ambulance. There
is no suggestion that one or more of these employees were
reprimanded or fired . He did this several times a week. He
probably did not so use the ambulance in the last month of
his employment . This alleged ground for discharge is but
another mere pretext which like the other pretexts lends
weight to my finding that the discharge was for unlawful
reasons.
As a fifth affirmative defense , Respondent claims Castle
was, "insubordinate" and refused to follow Respondent's
rules and regulations and resisted supervision . The entire
record makes it clear to me that Respondent would have me
find Castle was such an' employee almost from the date of his
hire in October 1973, until his termination in April . I do not
place any kind of credence in Respondent 's testimony that
Castle was not discharged at a much earlier date because, in
spite of his alleged insolence, dirtiness , and other misfeas-
ances, he could not be replaced . Note well that a replacement
was- available and hired when they discharged him for cir-
culating the petition and getting 16 signatures in addition to
his own . Reasons alleged by Respondent for Castle's dis-
charge, were, I find , concocted fabrications spun out of whole
cloth.
Not content with the phantasies alleged in its answer, Re-
spondent , at the trial, also contended Castle was lax in wash-
ing and otherwise caring for his vehicle ." The straws at
which Respondent grasped were not even like whisps of the
wind . They were devoid of substance and in no manner con-
stituted reasons for the discharge of Castle which was over-
whelmingly proved to have been unlawful by the credited
evidence . Any misconduct which one might conceivably at-
tribute to Castle was ignored by Respondent until he pre-
pared and circulated the petition . C'est finis The curtain
dropped from on high,-hitting Castle's neck with the preci-
sioned finality of a guillotine . The pretexts , I find , have the
substance of gossamer.
McDonald 's and Railton 's extrajudicial statements con-
cerning the discharge of Castle , as credibly testified to by
Ferriby and Ebnght , make abundantly clear the unlawful
nature of Castle's discharge . The mere thought that Respond-
ent maintained in its employ, from October 1973 until April
19, an employee whose conduct was as bad as Respondent
attempted to paint it, because he was "irreplaceable," I find
impossible to entertain . Note that he was immediately re-
placed after his discharge for which he was given no reason.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
V THE REMEDY
Having found that on or about June 19 Respondent dis-
charged Castle because of his union and other protected con-
certed activities , I shall recommend that Respondent offer
Castle full and complete reinstatement to his former position
or, if his job no longer exists, to a substantially equivalent
position , without prejudice to his seniority and other rights
and privileges . I shall also recommend that Respondent make
Castle whole for any loss of pay he may have suffered by
reason of his discharge in violation of Section 8(a)(3) and (1)
of the Act, in the manner set forth in F W. Woolworth
Company, 90 NLRB 289 (1950), with interest on backpay
computed in the manner described in Isis Plumbing & Heat-
ing Company, 138 NLRB 716 (1962).19
Upon the basis of the foregoing findings of fact , and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce within
the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. By discharging Castle on or about June 19, and there-
after failing and refusing to reinstate him, all because of his
union or other protected activities, Respondent has violated
Section 8(a)(3) and'(1) of the Act.
4. By requiring its employees to sign a statement in which
said employees agreed to become members of the Union im-
mediately upon accepting employment with Respondent, Re-
spondent violated Section 8(a)(2) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
Upon the entire record, including the foregoing findings of
fact and conclusions of law , I hereby issue the following
recommended:
ORDER20
Respondent, Mercy Peninsula Ambulance Service, Inc.,
San Mateo , California , its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Terminating or otherwise discriminating against any of
its employees because of their support for or assistance to a
union or because they engage in any union activities, or any
other activities protected by the Act.
(b) In any other manner interfering with, restraining, or
coercing any employee in his right to join , assist, support, or
petition the Union or any other labor organization or engage
in any activity protected by the Act, or to refrain from exer-
cising such right.
The activities of Respondent set forth in section III, above,
occurring in connection with Respondent 's operations de-
scribed in section I , above, have a close , intimate , and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
is Not alleged in the answer.
19 In these days of inflation and most high interest rates I respectfully
suggest to the Board that 6-percent interest is unrealistic and does not
provide an adequate remedy
20 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
MERCY PENINSULA AMBULANCE SERVICE, INC. 833
(c) Requiring its employees to sign a statement in which
said employees agree to become a member of the Union im-
mediately upon accepting employment with Respondent.
2. Take the following affirmative action , which I find, will
effectuate the policies of the Act:
(a) Offer Douglas A. Castle immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially similar position , without prejudice to
his seniority or other rights and privileges.
(b) Make Douglas A. Castle whole for any loss of pay
suffered by him by reason of Respondent 's discrimination
against him , in the manner set forth in the "Remedy" section
of this Decision.
21 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
(c) Preserve and, upon request, make available to the
Board or any of its agents all records necessary or useful to
determine or compute the amount of backpay due Douglas
A. Castle.
(d) Post at each of its locations in San Mateo County,
California, copies of the attached notice marked
"Appendix."21 Copies of said notice on forms provided by
the Regional Director for Region 20 shall, after being duly
signed by an authorized representative of Respondent, be
posted immediately upon receipt thereof and be maintained
by it for 60 days thereafter at its various locations, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that such notices are not
altered, defaced or covered by any other material.
(e) Notify the said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent has
taken to comply herewith.