Pride Care Ambulance

National Labor Relations Board - Administrative Judge Opinions

May 8, 2008

07-CA-050741 (N.L.R.B. May. 8, 2008)

JD(ATL)–16–08
Kalamazoo, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
PRIDE AMBULANCE COMPANY, d/b/a PRIDE
CARE AMBULANCE, CARE-A-VAN
and
LOCAL 7, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
Case GR–7–CA–50741
A. Bradley Howell, Esq., for the General Counsel.
Kalyn D. Redlowsk, Esq., for the Respondent.
DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. This case was tried in Kalamazoo,
Michigan, on February 20 and 21, 2008, pursuant to a complaint that issued on December 31,
2007, and that was amended on February 6, 2008.1 Additional amendments were made at the
hearing and after the close of the hearing. As amended, the complaint now alleges that the
Respondent maintained certain rules that impinge upon employees’ Section 7 rights, threatened
striking employees, and rendered assistance to employees in an effort to decertify the Charging
Party Union in violation of Section 8(a)(1) of the National Labor Relations Act, discharged
striking employees and one employee who made common cause with the striking employees in
violation of Section 8(a)(3) of the Act, required striking employees who returned to work to wait
90 days for health care coverage in violation of Section 8(a)(3) of the Act, and unilaterally
implemented Return to Work statements and dealt directly with two returning strikers in
violation of Section 8(a)(5) of the Act. The Respondent’s answer denies any violation of the Act.
I find that the Respondent did violate the Act substantially as alleged in the complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following2

1 All dates are in 2007 unless otherwise indicated. The charge was filed on October 5 and was
amended on November 14 and December 12.
2 The brief of the Respondent refers to correspondence with the Region 7 Resident Office in
Grand Rapids, Michigan, and attaches that correspondence to its brief. The foregoing
documents were not offered or admitted into evidence, are not part of the record, and have not
been considered. The brief of the Respondent incorrectly states that the General Counsel
offered no evidence with regard to paragraph 10 of the complaint. General Counsel’s Exhibit 2,
a stipulation by the Respondent, admits that the Respondent “maintained an Employee
Handbook and Policy and Procedure Manual containing the language set forth in paragraphs
10(a), 10(b) and 10(c)” of the complaint. The Respondent correctly states that the General
Counsel presented no evidence relating to unlawful comments allegedly made at a local
restaurant on September 11, and I shall recommend that those allegations be dismissed.
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
2
Findings of Fact
I. Jurisdiction
The Respondent, Pride Ambulance Company, d/b/a Pride Care Ambulance, Care-A-
Van, the Company, is a corporation with facilities in Kalamazoo, Michigan, that provides
transportation services to the public pursuant to a contract with the City of Kalamazoo. The
Company annually derives gross revenues in excess of $500,000 from its operations and
provides services valued in excess of $50,000 to the City of Kalamazoo. The Respondent
admits, and I find and conclude, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Local 7, International Brotherhood
of Teamsters, the Union, is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Overview
The Company provides various transportation services in and around Kalamazoo as well
as in Nashville, Tennessee. In Kalamazoo, the Company operates out of two facilities, a facility
located on Portage Road from which the Ambulance and Wheelchair Division and Metro Van
Division operate and a facility located at Cork Street from which the Care-A-Van Division
operates. Timothy Onderlinde is the Chief Operating Officer (COO), and he oversees all
operations of the Company. Becki Russon is the General Manager of the Company. Both
Onderlinde and Russon work out of the Portage Road facility. Dan Robbert is Transportation
Manager for the Care-A-Van Division, and his office is located at the Cork Street facility. The
complaint allegations relate only to the Care-A-Van Division.
The Company operates the Care-A-Van Division pursuant to a contract with the City of
Kalamazoo. Most of vehicles utilized are provided by the City of Kalamazoo, but the Company
is responsible for maintaining them. Prior to the Company’s acquisition of the contract in late
2005, the services provided by the Care-A-Van Division were performed by a predecessor
identified in the record as TMI. The Company began operating the Care-A-Van Division in
January 2006. The transportation services provided include transporting customers for personal
business including scheduled medical appointments. There are three dispatchers at the Cork
Street facility who schedule the pick-up of customers.
The Union was certified on April 27, 2006, as the exclusive bargaining representative of
the Care-A-Van drivers in the appropriate unit defined as follows:
All full-time and regular part-time drivers employed by the Employer in its Care-A-Van
Division, located in Kalamazoo, Michigan, but excluding clerical employees, mechanics,
guards and supervisors as defined in the Act, and all other employees.
Negotiations for a collective-bargaining agreement were unsuccessful. In June, the
employees voted to reject the contract being offered by the Company. Contemporaneously, in
the summer of 2007, the drivers experienced problems with the buses that they were driving,
including breakdowns and brake failure. On July 30, the members voted to strike. On August 1,
the Union struck. The central issues in this proceeding relate to that strike.
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
3
B. Procedural Matters
The complaint was amended on February 6, 2008, to delete employee Gary Yeo from
the list of striking employees that the Respondent allegedly discharged. Yeo returned to work
on August 1. The amendment also alleges that Pat Smith, who is a dispatcher and is not in the
unit, was discharged because she “made common cause with the strikers and joined the strike.”
The Respondent argues that it was “blind-sided” by this amendment to which it had no
opportunity to respond and moves for dismissal because the allegation is not “closely related” to
the discharge of strikers allegation and is time barred, coming more than 6 months after August
2, the last date that Smith worked. The Respondent also argues that the charge covers only
discharges on August 1. The initial charge herein alleged that, on August 1, the Respondent
“discharged all employees that participated in the strike.” The charge, as amended on
November 11, alleges that the Respondent, on August 1, “discharged employees because they
engaged in a strike.” The Respondent fails to acknowledge that Smith was named as a striking
employee in the initial complaint and that its answer, which gives a blanket denial that it did not
discharge the listed striking employees, does not treat Smith separately. The answer does not
raise an affirmative defense, as the Respondent did at the hearing, that Smith quit and that she
was not protected by the Act because she was a supervisor. The Respondent was fully aware
that Smith was alleged as a discriminatee. The amendment makes clear that she was a nonunit
employee who made common cause with the strikers. The one day discrepancy between
August 1 and 2 is immaterial. The amendment was proper, and the Respondent has not been
prejudiced in any way. The Respondent’s motion to dismiss is denied.
At the end of the second day of hearing, February 21, 2008, Counsel for the General
Counsel moved that the hearing be recessed sine die until he could ascertain when a witness
who had undergone emergency surgery would be available. On March 10, 2008, Counsel for
the General Counsel, citing the continuing unavailability of the witness, filed a motion that two
documents, General Counsel’s Exhibits 17(a) and (b), be received, that the discrete allegations
about which the unavailable witness was expected to testify be withdrawn, and that the record
be closed. On that same day, I held a conference call with all parties. The parties agreed that
the record was complete regarding the allegations that were litigated at the hearing and
requested that they be permitted to file briefs. The Respondent had no objection to the
proffered exhibits or withdrawal of the complaint allegations. The General Counsel filed a
corrected motion dated March 11, 2008, and on March 17, 2008, I issued an order receiving
General Counsel’s Exhibits 17(a) and (b), granting the corrected motion to withdraw paragraphs
14, 15, and 17 of the complaint, closing the hearing, and setting the date for receipt of briefs.
C. Facts
At about 5:30 a.m. on August 1, drivers represented by the Union came to the Cork
Street facility and parked at a nearby ball field. They then went to the entrance to the facility
carrying picket signs. Dispatcher Patricia (Pat) Smith observed them and called Transportation
Manager Dan Robbert at about 5:45 a.m. Robbert arrived about 6:30 a.m., opened the window
on his vehicle and motioned for Shop Steward Ronald (Ron) Smeltzer to come to him. Smeltzer
did so. Robbert told him that he wanted to be “perfectly clear,” that “if you guys don’t come back
now you don’t have jobs to come back to.” Smeltzer replied that “this could have been avoided
if Tim Onderlinde would negotiate with us and fix these buses.” Robbert recalled only that he
told Smeltzer to tell the striking employees “to please come back to work, that we had several
riders counting on their rides.” I credit Smeltzer. The striking employees continued to picket.
Although Robbert did not mention returning to the picket line prior to late morning, when
he went once to request Shop Steward Smeltzer to contact Union Business Agent Andy
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
4
Meulman and once to canvass the employees, employees Patricia Brigance and Dean
Chestnut recall that Robbert came to the picket line earlier in the day. Brigance placed this first
visit at about 7:30. She recalled that Robbert informed the employees that they could return to
work and “it would be as if nothing happened.” Chestnut placed this visit at about 8:30. He
recalls that Robbert stated that the employees could return “without any repercussions” and “if
you didn’t come back you can consider yourself terminated.” Robbert did not deny speaking
twice with the employees. I find that the first occasion that he did so was shortly before 8 a.m. I
credit the testimony of Chestnut that, on that occasion, Robbert did say “terminated.” I am
mindful that the evidence establishes that Brigance did not hear that comment, but there is no
evidence that on this occasion Robbert formally addressed all of the striking employees as a
group. I note that, although Robbert denied informing any employees that they were fired or did
not have a job, he did not deny using the term “terminated.”
COO Onderlinde and General Manager Russon arrived at the Cork Street facility at 8
a.m. or shortly thereafter. Onderlinde, Russon, and Transportation Manager Robbert met to
“make sure that [critical medical transports] got taken care of" such as transporting
individuals to dialysis appointments that could not be missed. Onderlinde spoke with the
Company attorney shortly after 9 a.m. Around 9:30 a.m. he directed Robbert to arrange a
meeting with the spokespersons for the Union. Robbert went to the picket line and requested
that Shop Steward Smeltzer contact Union Business Agent Meulman. At approximately 10:30
a.m. Smeltzer, Meulman, Onderlinde, Robbert, and Russon met in the Cork street office.
Russon took some rough notes.
The meeting began with COO Onderlinde asking why the Union was striking. Business
Agent Meulmen pointed out that members had rejected the Company’s contract offer, and
Onderlinde stated hat he understood that the strike was, therefore, an economic strike. Shop
Steward Smeltzer interjected that it was a safety strike, citing the condition of the buses and
noting that he had spoken with Robbert in July about the condition of the buses, at which time
Robbert had told him that there were seven buses on order and that the Company did not “want
to put a lot of money into these buses that they were going to retire.” Robert disputed
Smeltzer’s recollection of their conversation. The conversation deteriorated, with various
assertions of messages being left to which no response was made and Onderlinde stating that
the Company was taking the position that the strike was an economic strike and that the drivers
would be permanently replaced.
There is no claim that the employees ceased work concertedly because of abnormally
dangerous conditions under Section 502 of the Act. Although Shop Steward Smeltzer
characterized the strike as a “safety strike,” the Union was seeking to have the Company
address the employees’ concerns regarding the condition of the buses, a working condition.
The employees, by striking in order to have their concerns addressed, were engaged in an
economic strike. TNS, Inc., 309 NLRB 1384, 1365 (1992).
As Business Agent Meulman and Shop Steward Smeltzer were leaving, General
Manager Russon asked them to ask the drivers if they would “talk to them [the Company].”
Smeltzer did so, but no employee expressed a willingness to talk to the Company.
COO Onderlinde “wanted to find out that day how many employees were willing to
return.” He “didn't know if he [Meulman] would or not” convey the request that the
Company wanted to speak with the strikers. Robbert recalls that Onderlinde instructed
him “to go out on the picket line and meet with each of the drivers and let them know that
they could be temporarily or permanently replaced if they did not return to work, and
wanted me to get a response from each individual driver.”
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
5
As might be expected, the testimony regarding the time of Robbert's meeting and
what was said varies. Insofar as the meeting occurred shortly after the Union and
Company met in the office, I find, consistent with the testimony of Smeltzer, that the
meeting took place about 11 a.m. The employees assembled in a semi-circle. Robbert,
who was carrying a legal pad, addressed them as a group and then asked each
individually whether that employee was going to return to work and recorded the
response on the legal pad. Employee Gary Yeo was the only striker who stated that he
would return, and he did so.
Robbert claims that, when he addressed the group of employees, he told them
that the Company “wanted them to come back to work, no questions asked,” but that if
they did not return, “we could temporarily or permanently replace you.” No striker
testified that Robbert stated “temporarily or permanently replace.” Russon’s notes, which
reflect the responses that Robbert recorded on the legal pad when he addressed each
employee individually, reflect that the employees “were asked to come back to work or
risk losing their job.”
Shop Steward Smeltzer recalled that Robbert stated that he “wanted to be very clear
on it and he had to have it in writing what our decisions were.” He then stated that “if we
came back to work right then there would be no questions asked, and then we could
come back. If we didn't, then we could look for other jobs.” Employee Robert
Schellenberg, who drives for the Company in the summer, specifically denied that
Robbert said temporarily or permanently replaced. He recalled that Robbert stated that
the employees could come back in to work, “but if you don’t come in to work you don’t
have a job.” Although Schellenberg placed the meeting earlier in the day, he testified that
this was the meeting at which Robbert addressed each employee individually and at
which employee Yeo agreed to return. Employee Cory Snyder recalled that, on the
occasion that Robbert asked for their decision and recorded their responses, he informed
them that if they did not return to work “that we wouldn’t have a job.”
I am mindful that Business Agent Meulman and employee Ronald Howard recalled
that Robbert used word “terminated” and that employee Patricia Brigance recalled him
stating that the employees who did not agree to return were fired. I find that they testified
to their understanding of his comments. Employee Dean Chestnut recalled no comment
relating to the effect of not returning on the occasion that Robbert had the legal pad and
addressed each employee individually. Insofar as Robbert himself claims that he mentioned
consequences, claiming that he said “we could temporarily or permanently replace you,” I
find that Chestnut recalled nothing because he heard nothing that contradicted Robbert’s
previous statement to him that “if you didn’t come back you can consider yourself terminated.”
I credit Smeltzer’s recollection of Robbert’s phrasing, that if the employees did not
come back “then we could look for other jobs.” Both Schellenberg and Snyder confirm
that Robbert’s statement related to the absence of the employees’ jobs if they did not
return. I do not credit Robbert. Russon’s notes reporting the meeting of Robbert with the
employees do not mention temporary or permanent replacements. They reflect that the
employees “were asked to come back to work or risk losing their job.” When testifying as
an adverse witness pursuant to Rule 611(c) of the Federal Rules of Evidence, Robbert
was asked whether “the entire group with the exception of Gary Yeo were on strike, I
mean as far as you knew, correct?” Robbert answered, “I would say they walked off the
job.” When asked whether that was a strike, Robbert answered, “I consider it to be
abandoning their job.” I credit Smeltzer’s testimony that Robbert stated that if the
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
6
employees did not come back “then we could look for other jobs.”
The list composed by Robbert reflects that the following employees refused to
return to work:
Patricia Brigance Rodney Packard
Dean Chestnut Robert Schellenberg
Bradley Cosgrove Ron Smeltzer
Michele Holderman Cory Snyder
Ron Howard Rebecca Stanfill Wyman3
Ernie Kreitlow
Employee Rolland Wessell does not appear on Robbert’s list, but both Robbert
and Shop Steward Smeltzer testified that he was one of the strikers. Insofar as he did
not return to work, he “could look for other jobs.”
General Manager Becki Russon was interviewed by the local newspaper, the
Kalamazoo Gazette, on August 1 regarding the strike. On August 2, the newspaper published
an article which reported that Russon said that “Pride Care was in the process of hiring new
drivers and the striking workers would not be allowed to return to work.” Russon testified that
she was misquoted, but that no retraction was sought because retractions appear “on page 12
in the size 2 font.” Onderlinde testified that the Company does not rely on the local
newspaper to convey messages to employees. No communication disavowing the foregoing
report was sent to the employees.
On August 6, COO Onderlinde wrote Business Agent Meulman stating that he was
“seriously disappointed” by the Union’s actions and characterizing statements regarding vehicle
safety that were reported in the newspaper “to be disingenuous.” The letter does not disavow
the statement relating to not allowing the striking workers to return. In the final paragraph,
Onderlinde states that to “avoid further damage to our relationship, I once again invite the
striking Union members to return to work and encourage the Union bargaining team to return to
the bargaining table.” The letter was sent to Meulman, not the employees.
In undated letters that were sent on August 23, Onderlinde wrote all employees enrolled
in the Company’s group health insurance plan. The letter states:
Without any prior notice or warning, on August 1, 2007, you along with 14 other union
members went on strike and began picketing. Despite Pride Care Ambulance’s repeated
requests that you (and the other striking employees) return to work and the bargaining
table, you have consistently refused to do so. An employer is not required to finance
strike activity against itself. Accordingly, if you continue to strike and refuse to return to
work, Pride Care Ambulance will cease paying its portion of your health insurance
premiums effective September 1, 2007. Attached please find a notice of your COBRA
rights.
Finally, please be advised that you will be required to comply with both Priority Health
and Pride Care Ambulance re-enrollment requirements (which includes a 90-day waiting
period) if you do not elect COBRA coverage and later return to work and reenroll ….

3 The complaint names Rebecca Stanfill. Her last name is now Wyman. To avoid confusion I
shall refer to her as Stanfill Wyman.
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
7
The attached notice informed the employees that “Pridecare [sic] Ambulance uses
Infinisoure COBRA Compliance System, Inc., for all our Cobra coverage” and sets out contact
information. Employees Patricia Brigance and Ron Howard confirmed that, prior to receipt of
the foregoing letter, the only occasion upon which they had encountered a waiting period for
insurance coverage was when they were hired as new employees.
On August 29, Infinisource sent notices to the striking employees who were enrolled in
the group plan advising the employees of their COBRA rights. The heading on the notice
reflects that it is from “Pride Ambulance Co.” The first paragraph states that “a COBRA
qualifying event, which terminates your group health plan coverage, has been reported.” The
qualifying event, set out in a box, states that the qualifying event is “Termination of
Employment” as of “9/1/2007.”
Administrative Assistant Sherry Shoemaker testified that Onderlinde told her to take the
striking employees off of insurance and send COBRA notices. She denied that he told her that
the striking employees had been fired. She explained that she selected “termination” as the
qualifying event “because there wasn’t anything that really fit.” She did not consult with
Infinisource.
I find it incomprehensible that Onderlinde, whose letter advised the employees of the
requalification period that would be imposed if they did not return to work, was unaware that the
striking employees who had been enrolled in the health plan would be advised by Infinisource
that they were no longer enrolled because of “Termination of Employment.” A status report sent
to the Company on September 4 lists the employees whose coverage ceased and, in each
instance, states that the event was “Termination of Employment.”
The parties met for collective bargaining negotiations with a mediator in September and
again in October. The negotiations were unsuccessful. Between the negotiating sessions, on
September 28, Onderlinde again wrote Meulman expressing again that he was “seriously
disappointed” by the Union’s actions. The final paragraph states that to “avoid further damage
to our relationship … I once again invite the striking Union members to return to work and
encourage the Union bargaining team to either return to the bargaining table or continue with
mediation.” The letter was sent to Meulman, not the employees.
On January 29, 2008, Onderlinde sent a letter to all striking employees that states, in
pertinent part:
As you may know, the National Labor Relations Board has filed a Complaint against the
Company alleging, among other things, that the Company fired you on August 1, 2007,
after you went on strike. The Company disagrees with such Complaint allegation,
among others. So there is no confusion, and consistent with Company’s August 1, 2007,
oral representations and August 6 and September 28 letters, I am once again letting you
know that you were not terminated, you are welcome to return to work, and the
Company stands ready and willing to continue negotiations with your bargaining
representative(s). … [T]here is nothing in your personnel record indicating that you have
been terminated from the Company. ….
As already noted, the letters of August 6 and September 28 were sent to Meulman, not
the employees. Neither letter states that the employees have not been terminated. They state
only that the employees are invited to return. Administrative Assistant Shoemaker testified that
the Company does not receive the COBRA notice sent by Infinisource to the employees, but
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
8
the Company did receive the status report that reflects that the qualifying event for each striking
employee was “Termination of Employment” as of September 1. Thus, the representation that
there was nothing in the individual employee’s personnel file reflecting termination would
appear to be technically correct. The January 29, 2008, letter does not mention the undated
Company letter sent on August 23 advising that employees who do not elect COBRA will, like
newly hired employees, be required to undergo a 90 day waiting period before reenrolling in the
group health plan.
Employee Michelle Cronk was not scheduled to work on August 1. On the evening of
August 1, Transportation Manager Robbert called her about 5 p.m. and asked if she would be
coming in the following day, Thursday, August 2. Cronk replied that she would “probably be
there.” Robbert stated that “if I did not show [up] to work Thursday morning August 2d that I
would be fired.” Cronk questioned, “[A]re you telling me if I do not show up to work on Thursday
morning that I’m fired?” Robbert answered, “[Y]es, you are.” Upon going to the facility on the
morning of August 2, Cronk spoke with her coworkers on the picket line and decided to “stand
behind my coworkers on the safety strike.”
Robbert denied that he informed Cronk that she would be fired if she joined the strike.
He acknowledged that he called, asking whether she was coming in the following day. He
recalls that she answered that “as far as I know, I’ll be there,” and “that was pretty much the
extent of the conversation.” He does not recall mentioning the strike. He denied telling her that
if she joined the strike she would be fired, but did not deny informing her that if she did not
show up for work that she would be fired, the words that Cronk attributed to him. I credit Cronk
who, having heard what she understood to be a threat, confirmed her understanding by
questioning whether Robbert actually meant what he had said.
On the morning of August 2, about 6:30 a.m., Robbert handed supervisory dispatcher
Pat Smith a list of who was driving that day. She observed that the name “P. Smith” was on the
list and asked whether that was her. Robbert replied that it was, and Smith stated that that she
was not going to drive, “I stand behind the drivers; the buses are in terrible conditions [sic]
and for safety reasons I wasn't driving either.” Robbert replied, “[O]h, whatever,” and
departed. At about 7 a.m., Robbert returned. Smith, having stated that she would not
drive, asked Robbert what he wanted her to do. He stated that if she “wasn't going to
listen to the things that management requested me to do that he'd have to let me go.”
Smith asked, “[D]oes that mean you're going to fire me?” Robbert stated, “[Y]es, I'm
firing you.” Smith stated that was “all I needed to know,” gathered her belongings, and
went to the picket line.
Upon cross-examination, when Smith was questioned by Counsel for the Respondent
regarding being fired, the following testimony was elicited:
Q. Now you testified that you asked Mr. Robbert whether he was firing you, is that
correct?
A. Yes.
Q. Didn't he respond that that was only a possibility?
A. Nope.
Q. So if he testifies otherwise then he's lying?
A. Yep.
Robbert testified to only one conversation in which he told Smith that he needed
her to “do this route for me until we can get other people aboard,” and that she said she
was not going to because “I support the drivers.” Robbert testified that he repeated his
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
9
request, that Smith asked, “[W]hat if I don't … are you going to fire me?” Robbert claims
that he stated that “could be a possibility,” and that Smith “gathered up her stuff and left.”
Both upon demeanor and the sequence of events, I credit Smith. Robbert did not
acknowledge that there were two conversations and that the first began when he
presented Smith with a schedule that listed her as driver. Upon her refusal to accept the
assignment, he said, “[O]h whatever.” Robbert does not have the authority to hire and
fire but only to recommend in that regard. When Smith refused to drive, I find that he
went to receive instructions. I need not speculate whether he consulted with Onderlinde
or Russon or both. He returned and informed Smith that if she “wasn't going to listen to
the things that management requested me to do that he'd have to let me go.” Smith
asked, [D]oes that mean you're going to fire me?” He replied, “[Y]es, I'm firing you.”
Employee Patricia Brigance, who struck on August 1, called Transportation
Manager Robbert on August 31 and asked if she could speak to him about returning to
work. He told her that she could but that she would have to speak with both him and
COO Onderlinde. They met on September 5 at the Portage Road facility and spoke for
about half an hour. At the conclusion of the meeting, in what Brigance described as an
“uncomfortable moment,” they requested that she sign a Return to Work Statement.
Brigance signed the document and returned to work. The first paragraph of the Return to
Work Statement states that Brigance will receive the same pay and benefits as provided
in the past with one exception, there “would be no health coverage for a period of ninety
(90) days” as explained in their meeting on September 5 and in the letter sent “on August
23, 2007, from Pride Care.” The second paragraph acknowledges that Brigance “on my
own accord have made contact with the employer,” that the employer did not “encourage
me or offer me any additional incentive to return to work,” and that Brigance understood
that “the employer is still using the same vehicles” as it was on August 1. It concludes, “I
agree to follow all company policies as with any other employees currently working at the
Care-A-Van division.”
Employee Rebecca Stanfill Wyman, met with Robbert and Onderlinde on October
10, signed a similar statement, and returned to work.
On September 20, employee Timothy Tyler filed a decertification petition, Case
No. GR-7-RD-3587, that was withdrawn on November 1. Transportation Manager
Robbert was aware that Tyler was circulating a decertification petition, and he had seen
it. Tyler, on what would have been a day or two prior to September 20, requested a
company van to go to lunch, that “he had something to mail.” Robbert admitted that he
assumed that the “something” related to the decertification petition. He denied Tyler
permission to use a company van, but permitted him to take his personal truck,
something that he “hardly ever” did. Tyler requested postage because he did not want to
pay to mail the document, and Robbert told him to take it out of the “overage jar,” a jar in
which drivers put overpayments. Typically, Robbert would use the overpayments to
purchase coffee and doughnuts for the employees on Fridays. Employees had to receive
Robbert’s permission to take money from the jar.
D. Analysis and Concluding Findings
1. The Discharge of the Striking Employees
The complaint, in subparagraph 18(a), alleges that the Respondent discharged 13
striking employees.
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
10
Section 7 of the Act protects the right of employees “to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual aid
or protection.” Section 13 provides that “[n]othing in this Act … shall be construed so as either
to interfere with or impede or diminish in any way the right to strike.” The discharge of
employees for exercising their right to strike violates Section 8(a)(1) of the Act, and, when the
strike constitutes union activity, discharge for engaging in a strike violates Section 8(a)(3) as
well because it constitutes “a blow to the very heart of the collective-bargaining process.” Super
Glass Corp., 314 NLRB 596, 597 (1994).
The Respondent contends that the employees were not discharged. The Board, in
Kolkka Tables & Finnish American Saunas, 335 NLRB 844 (2001), overruled prior cases which
found no discharge when the employers engaged in brinksmanship in order to “bluff strikers
back to work.” Id. at 847-848. The Board has long held that informing employees that “you
better look for another job if you strike” or “similar warnings” are threats that violate Section
8(a)(1) of the Act. Lee A. Consaul, Inc., 192 NLRB 1130, 1153 (1971), enf. denied on other
grounds, 469 F.2d 84 (9th Cir. 1972). Prior to the decision in Kolkka Tables, the Board had, in
some cases, “focused on the employer’s intent behind the threat, manifested by its subsequent
conduct, particularly its willingness to reinstate strikers.” Id. at 847. Under Kolkka Tables the
statements made by the employer are evaluated to determine whether the employees “were not
only unlawfully threatened by the statements, but were also unlawfully discharged.” The
determination of whether striking employees have been discharged is made “from the
perspective of the employees” and “is based on ‘whether the employer's statements or conduct
would reasonably lead the employees to believe that they had been discharged.’ NLRB V.
Hilton Mobile Homes, 387 F.2d 7, 9 (8th Cir. 1967). See Brunswick Hospital Center, 265 NLRB
803, 810 (1982). …. Moreover, the employer will be held responsible when its statements or
conduct create an uncertain situation for the affected employees.” Id. at 846.
Robbert’s statement to Shop Steward Smeltzer at 6:30 a.m. that “if you guys don’t come
back now you don’t have jobs to come back to” and his statement to employee Chestnut about
8 a.m. that “if you didn’t come back you can consider yourself terminated” certainly constituted
threats. The complaint alleges no threats of discharge on August 1. Thus the General Counsel
appears to consider those threats to be subsumed in the discharge allegation. Insofar as there
are no August 1 threat allegations, I shall make no finding in that regard.
At the 11 a.m. meeting, when Robbert obtained the decision of each striker as to
whether he or she was going to return to work, he stated that if the employees did not come
back “then we could look for other jobs.” Although Onderlinde testified that Robbert has
authority only to recommend terminations, there is no evidence that any employee was aware
of that limitation. From the perspective of the employees, Robbert discharged them. That
conclusion is confirmed by the testimony of the employees who incorrectly heard, but correctly
concluded, that he stated that they were fired or terminated.
The reasonable belief of the employees that they had been discharged was confirmed
by the article in the Kalamazoo Gazette, published on August 2, which reported that General
Manager Russon stated that that “Pride Care was in the process of hiring new drivers and the
striking workers would not be allowed to return to work.” I understand Russon’s rationale
regarding the ineffectualness of a retraction, but the Respondent never communicated to the
striking employees that the report was in error. The Respondent, in its brief, notes the testimony
that the Respondent does not “rely on the press to communicate with their employees.”
Accepting that proposition, the record does establish that the Respondent communicates with
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
11
its employees through letters and by telephone. Michelle Cronk was called to determine
whether she was going to report to work. Letters signed by Onderlinde were sent to the
employees whose group health plan coverage was being discontinued. No letter was sent and
no telephone calls were made to employees contradicting the statement made in the
newspaper article.
Lest any employee continued to question his or her status with the Respondent, all
employees enrolled in the Respondent’s health plan were informed in a notice from the
Respondent’s agent, with a heading reflecting that the communication came from Pride
Ambulance Co., that their coverage ceased as of September 1 and that the event that qualified
them for COBRA coverage was “Termination of Employment.”
The Respondent, in its brief, notes that “none of the witnesses testified that they relied
on the Infinisource COBRA Notice in determining they were fired.” The short answer to that
observation is that that the COBRA notice simply confirmed what they had been told on August
1. The fact that the COBRA notice reported the effective date as 9/1/07 at best “create[d] an
uncertain situation for the affected employees” regarding whether their termination for
insurance purposes was different from the date they understood that they had been terminated.
No letter was sent and no telephone calls were made to employees contradicting the statement
made in the COBRA notices that the qualifying event was “Termination of Employment.”
The Respondent argues that COO Onderlinde’s letters of August 6 and September 28
to Business Agent Meulman are inconsistent with the termination of the strikers insofar as they
state that the Respondent “once again” invites them to return to work. As the brief of the
General Counsel points out, the letters never state that the employees have not been fired, nor
do they state the terms upon which the employees would be permitted to return. The letters,
which were sent to Meulman, not the employees, chastise the Union for going on strike. The
letter of August 6 disputes the Respondent's knowledge of the safety issues that concerned
employees. Neither letter requests that Meulman become a messenger for the Respondent or
states that the Respondent expects him to act as its agent in inviting the employees to return to
work. When the Respondent intended to contact employees it called them, as when Robbert
called Cronk, or wrote them directly, as Onderlinde did on August 23 regarding insurance and
on January 29, 2008, when he stated to the employees that they had “not been terminated.”
The Respondent further argues that, even if it be found that the employees were
discharged, the “invitations that they return to work effectively rescinded their terminations.” I
disagree. The “invitations” in the letter to Meulman did not assure that the employees would be
returning under the same working conditions, and as of September 1, it was clear that they
would not be. Employees who had been covered by the Respondent’s health plan were
required to requalify as new employees, which constituted denial of an accrued benefit. The two
employees who returned, Patricia Brigand on September 5, and Rebecca Stanfill Wyman on
October 10, were required to submit to an interview conducted by both COO Onderlinde and
Transportation Supervisor Robbert prior to being permitted to return to work, a requirement
inconsistent with their status as returning strikers. See Sunol Valley Golf Club, 310 NLRB
357,373(1993), citing Scalera Bus Service, 210 NLRB 63, 63-64 (1974). At the conclusion of
that interview they were required to acknowledge, in writing, their understanding that they were
being required to requalify for coverage in the group health insurance plan, the same
requirement imposed upon new employees.
The Respondent points to the return to work of Brigance on September 5 and Stanfill
Wyman on October 10 as evidence that the employees had not been discharged. As already
noted, they were returned with different working conditions in that they had had to requalify for
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
12
group health coverage. As noted in Kolkka Tables & Finnish American Saunas, supra at 847 fn.
7, their reinstatement “does not alter the illegal character of the original discharge, but only
eliminates the need for a reinstatement order for them.”
On January 29, 2008, the Respondent sent a letter to each striking employee stating
that they had not been terminated. That of course is the same contention that the Respondent
has maintained throughout this proceeding. The letter does not address the August 29
communication from Pride Care Ambulance Co. to employees who were enrolled in the health
insurance plan that stated that the qualifying event for their COBRA eligibility was “Termination
of Employment.” The Respondent’s brief acknowledges that the January 29, 2008, letter does
not meet the standards set out in Passavant Memorial Area Hospital, 237 NLRB 138 (1978),
with regard to disavowal of an unfair labor practice and, consistent with the position that the
Respondent has maintained, states that no Passavant contention is being made because “the
Company is not admitting (and has never admitted) that it committed any unfair labor practice.”
Nevertheless, the Respondent asserts that any backpay liability should cease at least as of
January 29, when the letter was sent. I disagree. “The fact that the employees were then [when
discharged] on strike does not preclude a finding of unlawful discharge, with entitlement to
backpay commencing at that point. Naperville Ready Mix, Inc., 329 NLRB 174, 185 (1999). In
Grosvenor Resort, 336 NLRB 613, 618 (2001), the Board summarized the employer’s obligation
to discharged strikers stating:
“[W]hen strikers are unlawfully discharged, they are not required to request
reinstatement since, by discharging them, the employer has signaled that he does not
regard them as strikers entitled to reinstatement upon request.” Naperville ready Mix,
Inc., 329 NLRB 174, 185 (1999). Thus, as the Board has long held, “a discharged striker
is entitled to backpay from the date of discharge until the date he or she is offered
reinstatement.” Abilities & Goodwill, Inc., 241 NLRB 27 (1979), enf. denied on other
grounds 612 F.2d 6 (1st Cir. 1979).
In view of the Respondent’s contention that the employees were not discharged, this is
not a dual motive case, and an analysis under Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981). cert. denied 455 U.S. 989 (1982), is not required. Even if a Wright
Line analysis were applicable, the General Counsel established union activity, employer
knowledge of that activity, animus towards that activity, and the discharge of the striking
employees. The Respondent presented no evidence that its actions would have been taken in
the absence of union activity.
By discharging the 12 employees who engaged in a strike on August 1 and by
discharging employee Michele Cronk for engaging in the strike beginning on August 2, the
Respondent violated Section 8(a(1) and (3) of the Act.
2. The Discharge of Patricia (Pat) Smith
The complaint, as amended, in subparagraph 18(b), alleges that Smith was discharged
because she “made common cause with the strikers and joined the strike.”
The Respondent contends that Smith quit, that she was not discharged. The document
sent to her with regard to the cancellation of her insurance states “Termination of Employment,”
but the effective date with regard to Smith is August 1, 2007. As discussed above, I have found
that Smith was discharged when she refused to perform struck work.
The Respondent further contends that, if it be found that Smith was discharged, it was
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
13
privileged to do so because she was a supervisor.
Section 2(11) of the Act provides that a supervisor is "any individual having authority, in
the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward or discipline other employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a routine or clerical nature, but requires the use of
independent judgment." The burden of establishing that an individual is a supervisor is upon the
party asserting the supervisory status of the individual in question.
Smith’s title as a supervisor is “merely secondary indicia of supervisory status.” John N.
Hansen, Co., 293 NLRB 63, 64 (1989). There is no evidence that she had any authority to “hire,
transfer, suspend, lay off, recall, promote, discharge, … discipline other employees, … or to
adjust their grievances, or effectively to recommend such action.”
Transportation Manager Robbert testified that Smith was promoted to supervisor in
order to “help facilitate the day-to-day operations.” He claimed that she supervised both the two
other dispatchers and the drivers, but acknowledged that she, like the other two dispatchers,
was hourly paid and that she had no authority to discipline. He gave no example relating to
supervision of the other dispatchers. He admitted that drivers, “for the most part,” drive the
same route each day. Regular customers have a regular pickup schedule. What are referred to
as “demand riders,” customers who are not on the schedule but who call the office for
transportation, are fit into the schedule. As described by Robbert, the dispatchers would see
where “the drivers are geographically and say, oh, that person is closer to driver A and
put him on his route.” All dispatchers perform this function. When asked what additional duties
Smith performed because of her supervisory status, Robbert answered, “the movement of
routes, the assignment of routes, the assignment of buses, that kind of thing.” He then altered
the foregoing answer stating that Smith could “assign routes, assign vehicles, alter routes if
need be, to make sure that daily operations were taken care of.” He gave no details or
examples. It is incumbent upon the party with the burden of proof to adduce “concrete evidence
showing how assignment decisions are made.” Franklin Home Health Agency, 337 NLRB 826,
830 (2002).
Smith explained that her job tasks are the same as the other two dispatchers but that
she was the “only one that knew the Care Van system.” That system, which is not
computerized, requires looking “at where the person needs to go to and from and … figure[ing]
out where to put the ride.” “The assignment of tasks in accordance with an Employer's set
practice, pattern or parameters, or based on such obvious factors as whether an employee's
workload is light, does not require a sufficient exercise of independent judgment to satisfy the
statutory definition [of a supervisor].” Franklin Home Health Agency, supra, 830, citing Express
Messenger Systems, 301 NLRB 651, 654 (1991) and Bay Area-Los Angeles Express, 275
NLRB 1063, 1075 (1985).
The Respondent argues that Smith “had both the responsibility for and authority to
assign both routes and buses to the drivers,” and points out that, on the morning of the strike,
Smith testified that she had to “re-route the routes and figure out who was going to drive them.”
The Respondent presented no evidence that Smith’s actions relating to re-routing and
assigning available drivers involved independent judgment on her part rather than action
dictated by management. On the morning of the strike Onderlinde, Russon, and Robbert met
between 8 a.m. and 9 a.m. to “make sure that [critical medical transports] got taken care
of.“ Purported supervisor Smith was not included in that meeting, nor was she asked to
accompany Robbert when he addressed the drivers, although he claimed that she supervised
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
14
the drivers. There is no probative evidence that Smith, under normal circumstances, had the
authority to assign routes. With regard to the assignment of buses, her uncontradicted
testimony establishes that, if a driver’s bus was not operating, she would assign a working bus
from “whatever bus was left.” Even if Smith made reassignments on the morning of August 1,
that occurred because of the unforeseen circumstance of the strike. In Croft Metals, Inc., 348
NLRB No. 38 (2006), the Board, in applying the analytical framework of Oakwood Healthcare,
348 NLRB No. 37 (2006), to work assignments dictated by unforeseen circumstances, noted
that the lead person would “sometimes switch tasks among employees.” The Board specifically
held that such actions do not constitute the “designation of significant overall duties … to an
employee” but was rather an “ad hoc instruction that the employee perform a discrete task.” Id.
slip op. at 6. The assignments of an alternate bus due to a breakdown and of a different route
because of a strike constitute ad hoc assignments.
Prior to becoming dispatch supervisor, Smith had filled in for a few weeks after the
former Transportation Manager left until Robbert was hired. Filling in due to extraordinary
circumstances does not confer supervisory status. St. Francis Medical Center-West, 323 NLRB
1046 (1997). After being promoted, she filled in for Robbert for a week when he was on
vacation. “[S]poradic assumption of supervisory duties during annual vacation periods” does not
establish supervisory status. Id at 1047, citing Jakel Motors, 288 NLRB 730 (1988).
Smith’s designation as supervisory dispatcher was predicated upon her expertise
regarding the basic routes which were the same as they had been under the predecessor
employer. Smith testified that she “would have to run it by Dan [Robbert] if we change any of
the routes around.” New drivers, who would be hired when a former driver quit, were given
“whatever space needed to be filled,” and that decision was made by Robbert. Robbert did not
contradict the foregoing testimony.
The burden of establishing supervisory status is upon the party asserting that status.
The Respondent has not met that burden. The evidence in this case does not establish that
Smith assigned, responsibly directed, or exercised independent judgment. Her discharge for
making common cause with the striking employees by refusing to perform struck work violated
Section 8(a)(1( and (3) of the Act.
3. The Allegations Related to Requalificaion for the Health Care Plan
The complaint, in paragraph 12, alleges that the Respondent threatened striking
employees with a 90 day waiting period for health care coverage if they did not return to work;
in paragraphs 19 and 20, it alleges that the Respondent imposed the 90 day waiting period for
health care benefits upon returning strikers Brigance and Stanfill Wyman; in paragraph 22, it
alleges that the Respondent unilaterally “implemented the use of Return to Work Statements
and mandated that employees sign said statements prior to being allowed to return to work;”
and in paragraphs 23 and 24, it alleges that the Respondent bypassed the Union and “dealt
directly with Unit employees regarding Return to Work statements.”
The Respondent’s letter of August 23 states that the Company is not required to finance
a strike against itself, and the complaint does not allege the cessation of payment of insurance
premiums by the Respondent for striking employees to be a violation. However, the statement
in the letter relating to imposition of a requalification period threatens striking employees with a
changed working condition if they “continue to refuse to return to work,” and that violates
Section 8(a)(1) of the Act as alleged in paragraph 12 of the complaint.
The Respondent, in its brief at footnote 28, observes that the foregoing threat allegation
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
15
refers to striking employees, implying an inconsistency with the discharge allegation. Striking
employees who are discharged maintain their status as strikers. An employer that discharges
strikers must offer them reinstatement, after which their rights are determined on the basis of
their status as striking employees. There is no inconsistency.
The violation alleged in paragraphs 19 and 29 is the denial of an accrued benefit by
requiring returning strikers to requalify for benefits. The Board, in Advertiser’s Mfg. Co., 294
NLRB 740 (1989), cites Texaco, Inc., 285 NLRB 241 (1987), in which the Board explained that,
under the analysis set out NLRB v. Great Dane Trailers, 388 U.S. 26 (1967):
… [T]he General Counsel bears the prima facie burden of proving at least some adverse
effect of the benefit denial on employee rights. The General Counsel can meet this
burden by showing that (1) the benefit was accrued and (2) the benefit was withheld on
the apparent basis of a strike. … Once the General Counsel makes a prima facie
showing of at least some adverse effect on employees’ rights, the burden under Great
Dane then shifts to the employer to come forward with proof of a legitimate and
substantial business justification for its cessation of benefits. Id at 743.
In Advertiser’s Mfg. Co., supra at 744, the respondent conceded that, before correcting
an error, employees had been denied benefits because of the requalification period imposed.
The error did not constitute a business justification. Similarly, the requalification period for life
insurance benefits was applied to strikers, but not to employees who did not strike. The
Respondent, although contending that its conduct “was justified by a desire to avoid increased
costs,” never contacted the insurance carrier. The Bound found that the respondent in those
circumstances had not established a business justification, and Section 8(a)(1) and (3)
violations were found in both situations.
In the instant case, the requirement that the strikers must requalify for the group health
plan is predicated upon a break in service for which the qualifying event, on the basis of
purportedly erroneous input from the Respondent, was “Termination of Employment.” Although
the Respondent argues that the employees had not been terminated, that is what was
communicated to the employees and that is what is reflected on the September 4 status report
that the Respondent received. Insofar as the reason for requalification was a break in service
because of the termination of the striking employees, it was predicated upon an unlawful act.
Even if I accept the Respondent’s claim that “termination” was incorrect, the Respondent took
no action to correct or rectify that error. Thus, the requalification period either was predicated
upon an unlawful act, termination, or an erroneous report that the Respondent took no action to
correct. In ether event, the Respondent has not established a legitimate business justification
for denial of the accrued benefit of eligibility. By requiring striking employees to requalify for the
group health plan, the Respondent violated Section 8(a)(1) and (3) of the Act.
The Respondent gave no notice to the Union with regard to the requalification period.
Health insurance eligibility is a working condition. By unilaterally imposing the requalification
period without notice to the Union, the Respondent violated Section 8(a)(5) of the Act.
Prior to returning to work employees Brigance and Stanfill Wyman were required to
meet with Onderlinde and Robbert and sign a statement confirming that they “agree to follow all
company policies,” one of which was the absence of health coverage for a period of 90 days
which had specifically been explained to them in their respective interviews. I find no vice in an
employer obtaining a written statement, similar to statements confirming the giving of
assurances under Johnnie’s Poultry Co., 146 NLRB 770 (1964), that the returning employee
has not been given any special incentives and is voluntarily returning to work. The vice is not
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
16
the signing of the Return to Work Statement as such, but in its contents which required the
former striking employees to agree to company policies that included a unilateral change in
working conditions. By requiring the employees to agree to unilaterally changed working
conditions, the employer engaged in direct dealing in violation of Section 8(a)(5) of the Act.
4. Assistance Regarding Decertification
Paragraph 16 of the Complain alleges that Dan Robbert “rendered assistance to
employees in an effort to decertify the … Union by providing money and transportation
assistance to file a decertification petition.” As discussed above, Robbert admits permitting
employee Tim Tyler to use his personal vehicle to mail a document that he assumed was the
decertification petition and gave him permission to use money from the overage jar in order to
pay the postage that Tyler was unwilling to pay out of his own pocket. Although employers may
render ministerial assistance with regard to decertification petitions, such as providing the
address and telephone number of Board offices, it may not engage in overt conduct constituting
assistance. In Cummins Component Plant (Cardinal Systems), 259 NLRB 456, 461 (1981),
cited by the General Counsel, the Board condemned paying for telephone communications and
postage. The cases cited by the Respondent relating to ministerial aid do not involve the
payment of money. On this record, given Tyler’s unwillingness to pay to mail the petition, the
petition would not have been filed in the absence of Robbert’s permission to use money from
the overage jar and to use his vehicle and the gasoline thereby consumed to take the petition to
be mailed. By rendering assistance regarding decertification of the Union, the Respondent
violated Section 8(a)(1) of the Act.
5. Rules Relating to Confidentiality
The complaint, in paragraph 10, sets out three rules that allegedly restrict employees’
exercise of their Section 7 rights. The Respondent has stipulated that it does maintain the rules
set out in the complaint and provides the entire rule set out in subparagraph 10(c). The first
rule, alleged in subparagraph 10(a), prohibits the “[g]iving out confidential information
concerning other employees, Company documents, customers or patients.” The third, set out in
subparagraph 10(c) states:
Salary, benefit, and other personal information relating to employees shall be treated as
confidential. Personnel files, payroll information, disciplinary matters and similar
information shall be maintained in a manner designed to ensure confidentiality in
accordance with applicable laws. Employees will exercise due care to prevent the
release or sharing of information beyond those persons who may need such information
to fulfill their job function.
The General Counsel presented no evidence that the foregoing prohibitions relate to
other than the proper maintenance and control of proprietary information. Asheville School, 347
NLRB No. 84 (2006). I shall recommend that subparagraphs 10(a) and 10(c) be dismissed.
Subparagraph 10(b) alleges a rule that provides that “[c]ompensation is considered an
individual and personal issue between management and the employee and should not be
discussed with anyone.” The foregoing prohibition upon employees discussing their own
compensation, “an inherently concerted activity,” violates Section 8(a)(1) of the Act. Asheville
School, supra, JD slip op, at 4, citing Automatic Screw Products Co., 306 NLRB 1072 (1992).
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
17
Conclusions of Law
1. By discharging unit employees because they engaged in a strike, the Respondent
has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1)
and (3) and Section 2(6) and (7) of the Act.
2. By discharging nonunit employee Pat Smith because she made common cause with
the striking employees, the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
3. By threatening employees that if they did not return to work they would be required to
requalify for group health insurance, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
4. By requiring returning striking employees to requalify for group health insurance, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
5. By bypassing the Union and dealing directly with striking employees by requiring that
they agree to the requalification period for group health insurance prior to returning to work, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
6. By unilaterally, without notice to or bargaining with the Union, changing the working
conditions of striking unit employees by requiring that they requalify for group health insurance,
the Respondent has engaged in unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
7. By rendering assistance to employees in an effort to decertify the Union, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
8. By maintaining a rule prohibiting discussion among employees of their wages, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having unlawfully discharged the striking employees and Pat Smith, it
must offer all them except Patricia Brigance and Rebecca Stanfill Wyman reinstatement and
must make all of them whole for any loss of earnings and other benefits, specifically including
any loss incurred because of denial of health care benefits due to the 90 day requalification
period.4 Backpay shall be computed on a quarterly basis from August 1, 2007, with regard to all

4 The return of additional employees, noted in the brief of the Respondent but not reflected in
the record, can be addressed in the compliance stage of this proceeding.
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
18
striking employees except Michelle Cronk, and from August 2. 2007, with regard to Michelle
Cronk and Pat Smith to date of proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent must rescind the rule prohibiting discussion among employees of their
wages.
The Respondent will also be ordered to post an appropriate notice.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5
ORDER
The Respondent, Pride Ambulance Company, d/b/a Pride Care Ambulance, Care-A-
Van, Kalamazoo, Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Discharging employees represented by Local 7, International Brotherhood of
Teamsters, because they engaged in a strike.
(b) Discharging nonunit employees who make common cause with the striking
employees.
(c) Threatening striking employees that if they do not return to work they will be required
to requalify for group health insurance.
(d) Requiring returning striking employees to requalify for group health insurance.
(e) Bypassing the Union and dealing directly with striking employees by requiring that
they agree to the requalification period for group health insurance prior to returning to work.
(f) Unilaterally, without notice to or bargaining with the Union, changing the working
conditions of striking unit employees by requiring that they requalify for group health insurance.
The appropriate unit is:
All full-time and regular part-time drivers employed by the Employer in its Care-A-Van
Division, located in Kalamazoo, Michigan, but excluding clerical employees, mechanics,
guards and supervisors as defined in the Act, and all other employees.
(g) Rendering assistance to employees in an effort to decertify the Union.
(h) Maintaining a rule prohibiting discussion among employees of their wages.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
19
(i) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer the following employees full
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed:
Dean Chestnut Rodney Packard
Bradley Cosgrove Robert Schellenberg
Michele Cronk Ron Smeltzer
Michele Holderman Pat Smith
Ron Howard Cory Snyder
Ernie Kreitlow Rolland Wessell
(b) Make the following employees whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the manner set forth in the remedy
section of the decision.
Patricia Brigance Rodney Packard
Dean Chestnut Robert Schellenberg
Bradley Cosgrove Ron Smeltzer
Michele Cronk Pat Smith
Michele Holderman Cory Snyder
Ron Howard Rebecca Stanfill Wyman
Ernie Kreitlow Rolland Wessell
(c) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful discharges of the foregoing named employees and within 3 days thereafter notify the
employees in writing that this has been done and that the discharges will not be used against
them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Rescind the rule prohibiting discussion among employees of their wages.
(f) Within 14 days after service by the Region, post at its Cork Street facility in
Kalamazoo, Michigan, copies of the attached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region 7, after being signed by the

6 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in
the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
20
Respondent's authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since August 1, 2007.
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., May 8, 2008
_____________________
George Carson II
Administrative Law Judge
JD(ATL)–16–08
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board had found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge any of you who are represented by Local 7, International Brotherhood
of Teamsters, because you engage in a strike.
WE WILL NOT discharge any of you who are not in the unit because you make common cause
with striking employees.
WE WILL NOT threaten striking employees that if they do not return to work they will be
required to requalify for group health insurance.
WE WILL NOT require that returning striking employees requalify for group health insurance.
WE WILL NOT bypass the Union and deal directly with you by requiring that you agree to a
requalification period for group health insurance prior to returning to work.
WE WILL NOT, without notice to or bargaining with the Union, change the working conditions of
striking unit employees by requiring that they requalify for group health insurance. The
appropriate unit is:
All full-time and regular part-time drives employer by the Employer in its Care-A-Van
Division, located in Kalamazoo, Michigan, but excluding clerical employees, mechanics,
guards and supervisors as defined in the Act, and all other employees.
WE WILL NOT render assistance to employees in an effort to decertify the Union.
WE WILL NOT maintain a rule prohibiting discussion among employees of their wages, and
WE WILL rescind that rule.
WE WILL, within 14 days of the Board’s Order, offer the following employees full reinstatement
to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed:
JD(ATL)–16–08
5
10
15
20
25
30
35
40
45
2
Dean Chestnut Rodney Packard
Bradley Cosgrove Robert Schellenberg
Michele Cronk Ron Smeltzer
Michele Holderman Pat Smith
Ron Howard Cory Snyder
Ernie Kreitlow Rolland Wessell
WE WILL make the following employees whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the manner set forth in the remedy
section of the decision.
Patricia Brigance Rodney Packard
Dean Chestnut Robert Schellenberg
Bradley Cosgrove Ron Smeltzer
Michele Cronk Pat Smith
Michele Holderman Cory Snyder
Ron Howard Rebecca Stanfill Wyman
Ernie Kreitlow Rolland Wessell
WE WILL, within 14 days of the Board’s Order, remove from our files any reference to the
unlawful discharges of the foregoing named employees and within 3 days thereafter notify the
employees in writing that this has been done and that the discharges will not be used against
them in any way.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
PRIDE AMBULANCE COMPANY, d/b/a PRIDE
CARE AMBULANCE, CARE-A-VAN
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300, Detroit, MI 48226–2569
(313) 226–3200, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER (313) 226–3244