Professional Medical Transport, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 9, 2014

28-CA-089300 (N.L.R.B. Jan. 9, 2014)

JD(SF)–1–14
Mesa, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES, SAN FRANCISCO BRANCH OFFICE
PROFESSIONAL MEDICAL TRANSPORT, INC.
and Cases 28–CA–089300
28–CA–099144
INDEPENDENT CERTIFIED EMERGENCY
PROFESSIONALS, LOCAL NO. 1
Sandra Lyons, Esq.,
for the General Counsel.
Ellen Shadur-Gross, Esq. (Baker & Hostetler, LLP),
for the Respondent Company.
Joshua Barkley,
for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
JEFFREY D. WEDEKIND, Administrative Law Judge. This is another case
involving Professional Medical Transport (PMT), a provider of 911 emergency and general
medical and transportation services in Maricopa County, Arizona. As detailed in two previous
decisions, in 2006 PMT’s certified medical professionals (paramedics, EMTs, and RNs) formed
their own independent union, ICEP Local 1, to represent them in collective-bargaining
negotiations with the Company. However, the parties failed to reach an initial contract. Further,
PMT thereafter committed a number of unfair labor practices in derogation of the Union and the
employees’ rights under the National Labor Relations Act. In 2008 and 2009, the Company
unlawfully withdrew recognition from the Union; refused to provide it with requested
information; made various unilateral changes, including relocating two stations, without
bargaining over the decision and/or effects; dealt directly with employees; and threatened to
remove the union president (paramedic Joshua Barkley) from active duty because of his union
activities. See JD(SF)-38-09 (ALJ Kocol), adopted in the absence of exceptions Dec. 13, 2010,
enfd. No. 11-71785 (9th Cir. June 27, 2011). In 2011, the Company again unlawfully refused to
provide requested information to the Union; unilaterally shut down one of the ambulances (“unit
603”); and threatened and disciplined both Barkley and the union vice president (EMT Travis
Yates) for engaging in union activities and filing unfair labor practice charges with the Board.
See JD(SF)-49-11 (2011 WL 6394819) (ALJ Parke), adopted in the absence of exceptions Aug.
21, 2012 (2012 WL 3597764).1

1 As discussed in ALJ Parke’s decision, in the interim between the two decisions, a third
unfair labor practice complaint against the Company was settled in December 2010 (R. Exh. 15).
JD(SF)–1–14
2
In February 2012, PMT was acquired by Rural/Metro, a national provider with numerous
established collective-bargaining relationships around the country. Several months later, on June
14 and 15, 2012, the parties executed a compliance stipulation resolving all remedial issues
arising from the above two decisions (GC Exh. 4). However, the parties remained unable to
reach an initial contract. Further, according to the instant complaint, PMT continued to engage 5
in unfair labor practices, including bypassing the Union and directly offering the employees a
contract ratification bonus in June 2012; unilaterally and discriminatorily again shutting down
unit 603 in August 2012; discriminatorily disciplining the Union’s Secretary-Treasurer
(paramedic Tony Lopez) in September 2012; unilaterally transferring certain employees to new
duty stations and changing other employees’ location and duties in January and March 2013; and 10
failing to provide the Union with requested information in January 2013, in violation of Section
8(a)(5) and/or (3) of the Act. 2
Following two pretrial conference calls, a 4-day hearing on the foregoing allegations was
held on August 5–8, 2013, in Phoenix. Thereafter, on September 12, 2013, the General Counsel 15
and the Company filed posthearing briefs.3 After carefully considering the briefs and the entire
record, for the reasons set forth below, I find that the Company unlawfully failed to bargain over
the decision and effects of shutting down unit 603 and the effects of modifying the location and
duties of unit 284. I also find that the Company discriminatorily disciplined Lopez. However, I
find that the General Counsel has failed to prove the remaining allegations by a preponderance of 20
the credible evidence.4
ALLEGED UNFAIR LABOR PRACTICES
I. Offering Employees a Contract Ratification Bonus in June 201225
Contract negotiations between the parties resumed in March 2012, shortly after
Rural/Metro acquired the Company. Approximately 3 months of good-faith bargaining later,5 at
the end of the parties’ eleventh and unusually lengthy session on June 7, the Company presented
the Union with its “last, best, and final” offer. Handwritten at the bottom of the proposal, as the 30

2 The charges were filed by the Union on September 14 and November 30, 2012 (Case 28–
CA–089300), and February 26, 2013 (Case 28–CA–099144). The consolidated complaint issued
on April 24, 2013. As in the prior cases, commerce jurisdiction is uncontested and well
established by the admitted complaint allegations.
3 The Union’s September 14 posthearing brief was rejected as untimely, and has not been
considered.
4 Factual findings are based on the record as a whole, including but not limited to the
transcript pages and exhibits specifically cited. In making credibility findings, all relevant and
appropriate factors have been considered, including the demeanor and interests of the witnesses;
whether their testimony is corroborated or consistent with the documentary evidence and/or the
established or admitted facts; inherent probabilities; and reasonable inferences which may be
drawn from the record as a whole. See, e.g., Daikichi Corp., 335 NLRB 622, 633 (2001), enfd.
56 Fed. Appx. 516 (D.C. Cir. 2003); and New Breed Leasing Corp. v. NLRB, 111 F.3d 1460,
1465 (9th Cir.), cert. denied 522 U.S. 948 (1997).
5 There is no allegation that the Company engaged in overall bad-faith or surface bargaining
over the contract, or that any of its contract proposals were unlawful, during the relevant period.
JD(SF)–1–14
3
tenth and last listed item, was a bonus of $200 for each EMT and $400 for each paramedic and
RN if the contract was ratified by July 1 (R. Exh. 24, p. 00290). However, Thomas Segar, the
Company’s chief negotiator, did not specifically mention the bonus, and Barkley did not notice
it, at the time.6 Barkley did not realize that the Company had added the ratification bonus to its
proposal until June 11, when he received a mid-afternoon email from PMT CEO John Wilson 5
giving him a “heads up” that the Company was going to send a letter directly to the employees
describing the June 7 offer.7 The email attached the letter and advised Barkley and the other
members of the Union’s bargaining team that it would be sent out that night. In fact, the letter
was mailed to employees the following morning. (GC Exh. 38; Tr. 143–144, 476–477, 598,
673.)10
The General Counsel argues that the Company failed to give the Union adequate time to
consider the proposed ratification bonus before notifying the employees about it, citing Detroit
Edison, 310 NLRB 564 (1993) (finding unlawful direct dealing where the employer distributed
its new proposal to the employees without previously presenting it at the bargaining table and 15
only a few days after giving the union’s representative a copy at his home while he was on
vacation and painting his house); and Americare Pine Lodge Nursing, 325 NLRB 98, 104 (1997)
(finding unlawful direct dealing where the employer distributed its proposal to employees at the

6 I discredit the testimony of Segar and PMT CEO John Wilson to the extent it indicates
otherwise. Segar testified that the Union specifically asked about the ratification bonus, and that
he explained the rationale for it (Tr. 749–750). However, Wilson testified that he could not recall
the Union asking any questions about the bonus. He also gave inconsistent testimony about
whether Segar mentioned the bonus. He initially testified that Segar made only a “brief,” general
comment about the overall proposal when he tendered it, and that everyone then left. (Tr. 662–
663, 707–708.) However, inexplicably, on further examination he testified that, in fact, Segar
specifically went through each of the open items in the proposal, including the bonus (Tr. 708). I
also reject the Company’s contention that an adverse inference should be drawn from the
General Counsel’s failure to call the two other members of the Union’s bargaining team who
were present at the end of the meeting—Jason Seyfert and Duane Owens—to corroborate
Barkley’s testimony that nothing was said about the bonus. It is well established that no adverse
inference is warranted where the circumstances indicate that an additional witness was not called
because the testimony was unnecessary. See, e.g., One Stop Kosher Supermarket, 355 NLRB
1237, JD. at fn. 3 (2010); and Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022
(2006). Here, although the General Counsel has the burden of proof, the Company’s failure to
mention the bonus when tendering the proposal is not critical to the General Counsel’s allegation
or argument. Further, given the inconsistencies in Segar’s and Wilson’s testimony, the General
Counsel could reasonably conclude that there was no need to prolong the trial to rebut it,
particularly since the Company itself never asked the other two Rural/Metro officials on the
Company’s bargaining team that day—Maureen Thompson and John Karolzak (Tr. 652)—to
testify about the matter and clarify or resolve the inconsistencies. Although the Company called
Thompson as its last witness, contrary to the Company’s brief (p. 25) she did not testify about
the June 7 meeting or the Company’s proposal.
7 Contrary to the Company’s brief (pp. 24, 29), the record clearly establishes that the letter
was emailed to Barkley on Monday, June 11, not Sunday, June 10.
JD(SF)–1–14
4
same time it faxed the proposal to the union), enf. denied in relevant part 164 F.3d 867, 875–877
(4th Cir. 1999). 8
However, this case more closely resembles United Technologies, 274 NLRB 609 (1985),
enfd. sub nom. NLRB v. Pratt Whitney Air Craft Division, 789 F.2d 121 (2d Cir. 1986) (finding 5
no unlawful direct dealing where the employer presented its last, best, final offer to the union at
the bargaining table in the context of lawful good-faith negotiations, did not communicate the
offer to employees until later that day and the next day, and the communications recognized the
union as the legitimate bargaining representative and urged the employees to act through union
channels or at the ratification meeting).9 Although the parties in United Technologies had a long 10
and fruitful bargaining history, the facts here are otherwise even more favorable to the Company.
For example, the Company did not send the letter to the employees until several days after it
presented the last, best and final offer to the Union at the bargaining table. Further, the Company
also gave the Union advance notice of the letter. Moreover, the letter did not merely recognize
the Union’s legitimate role, it emphasized that there had been “real bargaining with [the Union] 15
with substantive results,” including “agreement on numerous articles,” and that Rural/Metro
desired to “work with” the Union “in a new spirit of cooperation” “to create a successful
partnership.” Accordingly, the allegation is dismissed.
II. Shutting Down Unit 603 in August 201220
“Unit 603” is one of several ambulances assigned to Scottsdale. It is manned by two
PMT employees, a paramedic and an EMT. As discussed in ALJ Parke’s 2011 decision (pp. 5,
11), prior to 2007 the unit operated 24 hours a day out of station 604. However, sometime in
2007 it ceased to function. About 3 years later, in the spring of 2010, it was reinstituted at 25
station 604, but on a reduced, 8 hours per day, 5 days per week (Monday through Friday)
schedule. And the Company subsequently again ceased its operation in October of the same
year.
As indicated above, ALJ Parke found that the Company unlawfully failed to bargain with 30
the Union over both the decision to shut down the unit in October 2010 and its effects.10 As a
remedy for this violation, she ordered the Company to cease and desist from shutting down the
unit and to meet and bargain with the Union upon request regarding the unilateral change. She
also ordered the Company to post a notice to employees for 60 days stating that it would “rescind
the shutdown of unit 603 [and] restore that work to unit employees in the manner that existed 35

8 See also Overnite Transportation Co., 329 NLRB 990, 104–105 (1999) (finding unlawful
direct dealing where the employer informed employees of its proposal the day after it was
delivered to the Union and 2 days before negotiations were to resume), enf. denied in relevant
part 280 F.3d 417, 432–433 (4th Cir. 2002).
9 Although United Technologies predates the cases cited by the General Counsel, it has not
been overruled and appears to remain good law. See Armored Transport, Inc., 339 NLRB (2003)
(distinguishing United Technologies and finding unlawful direct dealing where the employer’s
letter attaching a new bargaining proposal was hand delivered to employees the same day that
the employer mailed the letter to the union).
10 See JD. at 18. There is no dispute about this. See R. Br. 27.
JD(SF)–1–14
5
prior to our October 2010 cessation of that service” and meet and bargain with the Union upon
request regarding the change.
The Company initially filed exceptions to ALJ Parke’s decision. However, it
subsequently withdrew them pursuant to the June 15, 2012 compliance stipulation. The 5
Company agreed in the stipulation that the Board could thereafter issue an order adopting ALJ
Parke’s decision, and that it would take certain affirmative action “in final settlement” of “the
remedial obligations arising out of” both that decision and ALJ Kocol’s prior decision. (GC
Exh. 4.)
10
Approximately a week later, on June 21, PMT CEO Wilson emailed Barkley and asked to
discuss unit 603 (GC Exh. 5). Wilson also again raised the matter with Barkley at a meeting
later that month. He gave Barkley a chart showing the June month-to-date transport statistics for
the existing nine units in Scottsdale (601–602, 604–608, 610, and 615). He also accompanied
the chart with a brief memo stating:15
I would propose we meet and discuss the information in greater detail. I believe
the data shows clearly that the high season is over and the need for 603 has long
since [passed]. Of our 9 units in Scottsdale, 7 of them are transporting less than 1
patient every 5 hours. If you agree, I would propose that we execute the 20
following language:
The parties, PMT and ICEP, agree that 603 is no longer needed
and may be taken down. If PMT should decide to reestablish 603
in the future, it will notify the union and discuss the conditions of 25
its reestablishment.
(R. Exh. 27; Tr. 681–684.)
Barkley did not respond to Wilson’s requests to discuss 603 or the proposed language. 30
Accordingly, the following month, on July 16 and 24, Wilson again wrote and emailed Barkley,
this time with copies to the entire union bargaining team, specifically requesting a meeting to
discuss “eliminating” the unit (GC Exhs. 7, 19).
The Union eventually agreed to meet on August 1. At that time, the Company provided 35
the Union with another chart showing the utilization statistics for the Scottsdale units for the
month of July. Unlike the June chart, the July chart included unit 603, but indicated that it had
the lowest unit hour utilization rate (.075) of any of the 911 units during that month. The
Company also presented the Union with a proposed memorandum of agreement (MOA). The
MOA stated that, effective August 1, the parties agreed that “part-time Unit 603 will be removed 40
from the schedule.” See GC Exh. 8; R. Exh. 41; and Tr. 78, 833–834.
Again, however, the Union did not respond to the proposal, either at the meeting or
thereafter (Tr. 547, 686–687, 754). Accordingly, on August 6, Wilson sent another email to
Barkley. Wilson reviewed the history, noting that the Company had “heard or received nothing” 45
back from the Union; “no counter was made, nor specific issues on the subject of taking down
JD(SF)–1–14
6
unit 603 raised.” He notified Barkley that the Company therefore intended to implement the
MOA effective August 13.
Barkley replied later that day, stating:
5
Do so at your own peril . . . You have never put 603 up for Bid, you staff it rarely
and you give us numbers based on a call volume that can’t exist if the unit isn’t
staffed. . . . Follow the order as is. With your announcement to . . .sidestep the
order, I will report it for contempt at my earliest convenience. (GC Exh. 9.)
10
The Company thereafter implemented the MOA and eliminated the unit as planned, i.e., it no
longer staffed it or put it on the schedule (Tr. 83, 688).
The General Counsel alleges that, like the October 2010 shutdown, the August 2012
shutdown of unit 603 violated Section 8(a)(5) of the Act. The General Counsel’s primary theory,15
as articulated both at the hearing and in the posthearing brief, is that the Company never fully
restored unit 603 to the way it operated before the unlawful October 2010 shutdown; that the
Company therefore failed to comply with the requirements of the June 15, 2012 compliance
stipulation before again proposing to shut down the unit in late June 2012; and that, under well-
established Board law, the unremedied October 2010 unlawful shutdown therefore precluded a 20
valid bargaining impasse in August 2012 over the Company’s proposal. For the reasons set forth
below, I reject this theory.
The Company does not dispute that ALJ Parke’s 2011 decision and order required it to
restore unit 603 to the way it operated prior to October 2010. However, it contends, correctly, 25
that the June 15, 2012 compliance stipulation did not incorporate or specifically contain that
requirement. Although the stipulation incorporated and/or liquidated other affirmative
provisions in ALJ Parke’s and ALJ Kocol’s orders “in final settlement” of “the remedial
obligations arising out of” their decisions,11 it did not include any of the cease and desist or
affirmative provisions of ALJ Parke’s order regarding unit 603. Rather, the only provisions 30
relating to 603 were in the stipulated notice, which was identical in relevant respects to ALJ
Parke’s notice, and which the stipulation required the Company to post within 14 days and for 60
consecutive days thereafter.
The full 60-day posting period had not yet passed as of August 13 (the 59th day after the 35
compliance stipulation was approved), when the Company implemented its proposed MOA and
eliminated unit 603. Thus, in this limited respect, the Company had not yet fully complied with
the compliance stipulation at that time. 12 However, there is no evidence that the unexpired
notice-posting period was the reason for the parties’ failure to reach agreement regarding the
Company’s proposal to again shut down unit 603. Rather, it is clear from Barkley’s August 6 40
email and hearing testimony that the Union refused to bargain with the Company over the

11 Among other things, the Company agreed to pay over $1 million in backpay within 14 days
of the stipulation.
12 There is no contention that the Company had otherwise failed to fully or substantially
comply with its affirmative remedial obligations under the compliance stipulation as of August
13, or that its failure to do so precluded a valid impasse.
JD(SF)–1–14
7
proposal because it believed, erroneously, that the Company was still legally required, after the
compliance stipulation, to do more than it had before the stipulation to restore the unit as it
operated prior to October 2010.13 Accordingly, I find that the unexpired posting period did not
preclude a valid impasse. See Aramark Educational Services, 355 NLRB 60, 72–73 (2010),
citing Dynatron/Bondo Corp., 333 NLRB 750 (2001) (an employer’s previous, unremedied 5
unfair labor practices do not preclude a valid impasse unless there is a causal connection to the
parties’ failure to reach agreement).
This is not the end of the matter, however. While the compliance stipulation effectively
relieved the Company from taking any further remedial action with respect to unit 603 other than 10
posting the notice, it did not relieve the Company of its ongoing bargaining obligations under the
Act. As noted by the General Counsel (Br. 30–31), the Company remained obligated to provide
the Union with a meaningful opportunity to bargain over substantial changes in terms and
conditions of employment, including the elimination of unit 603. See Aggregate Industries, 359
NLRB No. 156, slip op. at 4–5 (2013), and cases cited there (finding no waiver or impasse where 15
the employer presented the union with a “fait accompli”). And the Company does not contend
otherwise. The Company admits, consistent with its own actions, that it had an obligation to
provide the Union with notice and an opportunity to bargain before shutting the unit down
again.14
20
As indicated above, however, the Company’s own chart, which Wilson gave to Barkley
in late June with the Company’s shutdown proposal, indicates that the Company failed to do so,
i.e. that unit 603 was already shutdown and not being utilized, at that time. And while the
additional chart the Company gave the Union on August 1 indicated that the unit had been
utilized during July, the utilization rate was extremely low. Further, Wilson did not dispute, 25
either at the time or at the hearing, Barkley’s statement in his August 6 email that the unit was
being staffed only “rarely.”
The Company argues that there was nothing unusual about this; that unit 603 was created
solely to back up other units in Scottsdale, and was therefore historically staffed and operated 30
only on a part-time/overtime and seasonal basis, i.e. it was brought up during the winter busy
season and taken down during the summer slow season. In support, the Company cites Wilson’s
testimony to this effect (see Tr. 66, 676, 683), and a May 2009 memorandum outlining the 911

13 The Company asserts that it “voluntarily reinstated” unit 603 in February 2012, while its
exceptions to the decision were still pending and months before the compliance stipulation was
executed, “as part of the new ownership’s effort to resolve the quagmire of labor charges” (Br.
29). While there is actually no probative evidence of this (other than Wilson’s brief,
unsupported, and uncorroborated self-serving statement, in the memo he gave Barkley in late
June, that 603 had been “re-established back in February”), and the Union disputes it, it is
ultimately immaterial to evaluating whether the Company satisfied its remedial obligations under
the compliance stipulation. However, I accept the assertion as true for purposes of evaluating
whether the Company met its statutory bargaining obligations before eliminating 603 (an issue
discussed infra), as it is essentially an admission that the Company’s subsequent actions changed
the status quo.
14 Unlike in the prior case before ALJ Parke, the Company does not argue here that the
decision to shut down unit 603 was not a mandatory subject of bargaining.
JD(SF)–1–14
8
dispatch and deployment procedures in Scottsdale, which does not list 603 among the permanent
units (R. Exh. 25).
There are at least two problems with this argument, however. First, Wilson was not hired
by PMT until July 2010,15 and his testimony regarding unit 603’s history is contrary, not only to 5
Barkley’s testimony, but to ALJ Parke’s findings. As discussed above, Judge Parke found that
the unit operated 24 hours a day prior to 2007, was shut down for 3 years thereafter (even during
the busy winter seasons), and was re-established from spring through October 2010 (even during
the slow summer season).16 Second, given those findings, it is just as likely, if not more so, that
unit 603 was omitted from the May 2009 dispatch and deployment procedures because the unit 10
had not been utilized at all in the previous 2 years, rather than because it was only a “seasonal”
unit.
Accordingly, I find that, as with the 2010 shutdown, the Company failed to satisfy its
bargaining obligations under Section 8(a)(5) of the Act before again shutting down the unit in 15
August 2012.17

15 The Company’s brief states (seemingly against its own interest) that Wilson did not join
PMT until after unit 603 was shut down in October 2010 (Br. 29). However, this is inconsistent
with Wilson’s testimony that he was hired in July 2010 (Tr. 60), and no contrary evidence is
cited.
16 PMT’s counsel specifically stated at the August 2013 hearing that the Company did not
have any desire to relitigate ALJ Parke’s (or ALJ Kocol’s) findings, and that it had no objection
to relying on them in this proceeding (Tr. 514–515). I thereafter advised the parties that I would
do so, citing both counsel’s foregoing statements and supportive caselaw (Tr. 517). The
Company’s posthearing brief cites no grounds for reconsidering that ruling, and I reaffirm it.
See Moulton Mfg. Co., 152 NLRB 196, 207–209 (1965) (rejecting the respondent’s argument
that ALJ decisions adopted by the Board in the absence of exceptions should be given no more
effect than a settlement agreement); and Hitchens v. County of Montgomery, 98 Fed. Appx. 106
(3d Cir. 2004) (holding that the issue-preclusion requirement of a final judgment on the merits
was satisfied where the hearing examiner’s proposed decision became final in the absence of
timely exceptions).
17 Unlike the General Counsel’s “unremedied violation” theory, this “fait accompli” theory
was not clearly articulated by the General Counsel at the hearing. Nevertheless, it is
encompassed by the complaint’s 8(a)(5) failure-to-bargain allegations and, as discussed above,
the relevant facts were fully litigated. See generally Federal Security, Inc., 359 NLRB No. 1,
slip op. at 5 fn. 35 (2012); Massey Energy/Mammoth Coal, 358 NLRB No. 159, slip op. at 10
(2012); Evenflow Transportation, Inc., 358 NLRB No. 82, slip op. at 4 fn. 8 (2012) ; Parexel
Intl., LLC, 356 NLRB No. 82, slip op. at 2–4 (2011); and Akal Security, Inc., 354 NLRB No. 11,
slip op. at 4 (2009), reaffd. 355 NLRB 584 (2010). See also NLRB v. Litton Financial Printing
Division, 893 F.2d 1128, 1134 fn. 5 (9th Cir. 1990), revd. in part on other grounds 501 U.S. 190
(1991); and Tasty Baking Co., v. NLRB, 254 F.3d 114, 122 (D.C. Cir. 2001). The General
Counsel has never specifically argued, however, that the Company was required to wait until an
overall impasse in the negotiations over the initial collective-bargaining agreement before
implementing its proposal to shut down unit 603. See RBE Electronics, 320 NLRB 80 (1995)
(discussing general rule and exceptions). Nor was that issue fully litigated. Accordingly, I have
not addressed it.
JD(SF)–1–14
9
As indicated above, the complaint also alleges that the shutdown of 603 in August 2012
was discriminatory in violation of Section 8(a)(3) of the Act. Specifically, the General Counsel
argues that the shutdown “was used to adversely affect” the working conditions of Union Vice
President Yates. In support, the General Counsel cites the Company’s history of discrimination
against Barkley and Yates; Barkley’s testimony that Yates’ unit in South Scottsdale (unit 604, 5
which Barkley previously worked on as well) was the primary beneficiary of unit 603’s
assistance in handling high call volumes (Tr. 481); and the timing of the shutdown “right before
the busy season.” (GC Br. 17–18, 31.)
However, Barkley acknowledged, consistent with Wilson’s testimony (Tr. 65), that unit 10
603 also benefited the other two units in South Scottsdale (601 and 602). And there is no record
evidence that the busy season starts as early as September or October. On the contrary, Wilson
testified without contradiction that October was still the “off season,” and that higher call
volumes do not begin until around January (Tr. 72, 99). 18 Accordingly, notwithstanding the
Company’s history of discrimination against Barkley and Yates, the General Counsel has failed 15
to prove this particular 8(a)(3) allegation by a preponderance of the evidence.
III. Suspending Tony Lopez in September 2012
Lopez is a 24-year employee of the Company with no previous disciplinary record. He 20
began as an EMT and has been a paramedic for the past 8 years, currently assigned to unit 615 in
Scottsdale. At the time of the relevant events in September 2012, he was the union secretary-
treasurer. He had also been serving on the union bargaining team with Barkley and two other
employees (Jason Seyfert and Duane Owens) since negotiations resumed in March of that year.
25
Like other certified company employees, Lopez is required to maintain the necessary
CPR, ACLS, and other certifications, which typically expire every 2 years, to perform his job.
The Company’s most recent policy statement regarding this requirement, effective October 2005,
states:
30
It is the responsibility of each employee to renew any required certification or
licenses prior to their expiration date and to provide proof of such renewal to the
Director of Quality Assurance and Staffing, at a minimum of seven (7) days prior
to their expiration date. Original certification and licensure cards are to be
provided to the Director of Quality Assurance and Staffing [or] their 35
representative and copies of the cards will be made. Copies or faxes will not be
accepted. (GC Exh. 59).
However, at the time of the relevant events, the Company was not strictly enforcing the
requirement that employees submit their original recertification cards to the director of quality 40
assurance and staffing (then Kelly O’Connor) or the scheduling department (where O’Connor
worked). As a matter of convenience, employees were permitted to submit their cards to various
other managers, including then-Operations Director Ted Beam, General Manager Wayne Clonts,

18 Although there was testimony in the first case that the “curve of need” starts around
September, this testimony was discredited. See ALJ Kocol’s decision at 12.
JD(SF)–1–14
10
Compliance and Administration Director Jim Roeder, and Human Resources Director Joy
Carpenter. (Tr. 174–175, 207–208, 278–279). 19
In order to obtain the necessary recertifications, employees must first attend training.
Although they may take the training from any qualified or approved organization, the Company 5
also offers the training at its facility. In any event, the employees are required to pay for the
recertification training; the Company does not reimburse them when they take the training
elsewhere, and it charges them, pursuant to an authorized payroll deduction, when they receive
the training from the Company.
10
On July 17, 2012, Lopez attended a company training course to renew his 2010 CPR and
ACLS certifications, which were due to expire August 31. The course was conducted by the
Company’s lead instructor, Glenn Trainor, and lasted the entire day. About 12 other individuals,
including Lemoine, Lopez’ direct supervisor, also took the training.
15
Lopez completed the course and was given both an original and a copy of his new CPR
and ACLS cards at the end of the class. However, Lopez did not thereafter submit the cards to
anyone in management. Accordingly, the following month, one of the schedulers repeatedly
called Lopez’ personal cell phone and left voice mails reminding him that he needed to bring in
his recertifications by Friday, August 24.20 However, Lopez did not respond or bring in his new 20
certifications as requested.

19 Carpenter testified that employees could also give their certifications to two other
individuals: Suzanne Coleman in the human resources department, and Len Aiken (Tr. 212).
However, their titles or positions were never identified.
20 See R. Exh. 5, the scheduler’s daily phone logs for August; specifically her entries for
August 11, 22, and 24. These phone logs were admitted at the hearing, over the General
Counsel’s objection, pursuant to FRE 803(6), the “business records” exception to the hearsay
rule (Tr. 190–193). The General Counsel’s posthearing brief argues that this ruling was in error,
and that the logs should be given no weight (Br. 8 fn. 2). The General Counsel argues that the
scheduler’s logs do not satisfy the requirements of the business-records exception because
Carpenter acknowledged that the schedulers are not required to keep the logs, and the Company
failed to call either the scheduler (who no longer works at the Company) or any other
knowledgeable witness to testify about why the logs were created. I reject the General Counsel’s
argument. The Respondent adequately established—through Carpenter’s testimony about the
scheduling department’s procedures and how the logs were maintained and retrieved (Tr. 180–
198, 210–212), and by presenting similar logs kept by the scheduler in May, June, and July (R.
Exhs. 2–4) —that the scheduler routinely kept the phone logs in the course of performing her
regular duties at or near the time the calls were made. See generally U.S. v. Smith, 609 F.2d
1294, 1301–1302 (9th Cir. 1979); U.S. v. Kail, 804 F.2d 441, 448–449 (8th Cir. 1986); U.S. v.
Dominguez, 835 F.2d 694, 698 (7th Cir. 1987); and Japanese Electronic Products Litigation, 723
F.2d 238, 288 (3d Cir. 1983), revd. on other grounds sub nom. Matsushita Electronic Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). Further, it makes no difference whether the
scheduler was required to keep the logs or whether other schedulers also kept such logs. See
Keogh v. Commissioner of Internal Revenue, 713 F.2d 496, 499–500 (9th Cir. 1983); and U.S. v.
Hedman, 630 F.2d 1184, 1197–1198 (7th Cir. 1980). Finally, there are no circumstances
JD(SF)–1–14
11
On August 24, O’Connor informed Operations Director Beam of the situation. Beam,
who knew Lopez well from serving on the management bargaining team during the ongoing
contract negotiations, sent an email to him later that day, at 4:57 p.m., shortly before the office
closed for the weekend. The email, which Beam sent both to Lopez’s company Blackberry and
to his personal email address, stated that, “regretfully,” the Company had to remove him from his 5
upcoming Sunday, August 26 shift because he had not submitted his recertifications 7 days prior
to expiration as required by company policy (GC Exh. 55).
Lopez saw Beam’s email the next day (Saturday), and turned in his new certifications to
General Manager Clonts when the office reopened on Monday. About 10 days later, on 10
September 6, Beam and Lemoine called Lopez in for an interview about the matter. Lopez told
them that he did not turn in his new certification cards because he had taken the Company’s
training course and had received his cards from the Company. Lemoine, who as indicated above
took the same course with Lopez, responded, “Do you not remember me telling y’all to be sure
to still show your certs to Kellie, Wayne, or Ted?” Lopez said no, he did not remember that. As 15
for the voice mail reminders from the scheduling department, Lopez said he never got them
because he did not know how to retrieve voice mails from his phone until he downloaded an app
that converted them to text messages.
Beam acknowledged to Lopez that the training department used to notify the scheduling 20
department by email when employees took the training from the Company. He said the
Company stopped or “switch[ed]” this practice because training and scheduling are two separate
departments, and the certifications themselves were not being placed in the employee’s file,
which led to a lot of confusion. Beam also acknowledged to Lopez that the schedulers could
have contacted him by calling or emailing him on his company Blackberry while he was at work. 25
(GC Exh. 58; Tr. 257, 296, 319, 409–412.)
Nevertheless, the following week, on September 11, Beam sent an email to Wilson and
Carpenter recommending that Lopez be issued a disciplinary suspension for the August 26 shift.
Beam stated that such a suspension was warranted because “the policy is clear that it is the 30
employee’s responsibility to [turn in certifications 7 days before expiration], and Lopez had
ample reminders.” This recommendation was approved by Wilson and Carpenter, as well as
Rural/Metro Director of Human Resources Ann Hebert, and the suspension issued shortly
thereafter, on September 17. The suspension effectively denied Lopez any pay for the August 26
shift, and also constituted a “last and final warning” that could lead to further disciplinary action 35
up to and including termination for future violations. (GC Exhs. 54–55; R. Exh. 26.)
As indicated above, the General Counsel contends that, notwithstanding the stated reason
for the suspension, Lopez was actually disciplined because of his prominent union role as a
union officer and member of the union bargaining team, in violation of Section 8(a)(3) of the 40
Act. The appropriate test for evaluating such allegations is set forth in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).

indicating a lack of trustworthiness; indeed, the detailed and apparently comprehensive nature of
the scheduler’s daily logs indicates the opposite.
JD(SF)–1–14
12
Under that test, the General Counsel must prove by a preponderance of the
evidence that union animus was a substantial or motivating factor in the adverse
employment action. The elements commonly required to support such a showing
are union or protected concerted activity by the employee, employer knowledge
of that activity, and union animus on the part of the employer. 5
If the General Counsel makes the required initial showing, the burden then shifts
to the employer to prove, as an affirmative defense, that it would have taken the
same action even in the absence of the employee's union activity. To establish this
affirmative defense, “[a]n employer cannot simply present a legitimate reason for 10
its action but must persuade by a preponderance of the evidence that the same
action would have taken place even in the absence of the protected activity.”
Consolidated Bus Transit, 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009)
(citations omitted). See also St. Bernard Hospital, 360 NLRB No. 12 (2013).15
Here, the General Counsel clearly made the required initial showing. It is undisputed that
Lopez was one of the Union’s top officers and a member of the union bargaining team, and that
the Company, including Beam, Wilson, and Lemoine, were well aware of this. The Company’s
animus towards the Union, and union officers in particular, is also well established by ALJ 20
Parke’s findings in the 2011 case. Indeed, Beam and Lemoine were likewise directly involved in
the investigation and discriminatory discipline of Barkley and Yates in that case.21 And while
the parties’ relationship appeared to improve after Rural/Metro acquired the Company and
negotiations resumed in early 2012, as discussed more fully below it had clearly again soured by
September, after the employees overwhelmingly rejected the Company’s last, best and final 25
contract offer and the Company unilaterally implemented its proposal to eliminate unit 603.
Moreover, there are at least two other circumstantial factors supporting the General
Counsel’s case. First, the Company has not enforced the policy consistently (Tr. 201). Indeed, it
is undisputed that, just 4 months earlier, in May 2012, an employee (Aaron Zeigman) was not 30
suspended even though he failed to turn in his new CPR card until after his old card expired.
The Company also did not suspend another employee (Jonathan Perona) in August 2011, even

21 The Company’s posthearing brief argues that it is inappropriate to rely on ALJ Parke’s
findings of animus in the prior case to establish animus in this case. However, as noted above,
counsel specifically stated at the hearing that the Company had no objection to relying on ALJ
Parke’s findings in this proceeding. In any event, the argument is without merit. The cases cited
by the Company as support are all distinguishable, either because the prior ALJ decisions in
those cases were still pending before the Board on exceptions (Ampersand Publishing, LLC, 358
NLRB No. 141, slip op. at 17 (2012)); because the prior cases were remote in time and did not
involve the same supervisors or managers (Stabilus, Inc., 355 NLRB No. 161, slip op. at 12
(2010)); or because the prior cases involved different employee units (Control Services, 319
NLRB 1195, 1200 (1995)). Here, the Board adopted ALJ Parke’s findings, and it is immaterial
that it did so in the absence of exceptions. See cases cited in fn. 16, above. Further, the
Company’s prior conduct occurred only a year before the alleged conduct in this case and
involved the same supervisors or managers. In these circumstances, to hold that ALJ Parke’s
findings regarding the prior conduct cannot be relied on to prove animus would make no sense.
JD(SF)–1–14
13
though he did not renew his CPR certification until after it expired. (R. Exhs. 7–8; Tr. 202–205).
The record provides no explanation for this inconsistent treatment.22
Second, in deciding to enforce the policy in this instance, the Company deliberately
ignored several significant facts or circumstances supporting Lopez’ defense. For example, 5
although Beam acknowledged to Lopez at the investigatory meeting that the Company had
changed its practice under the recertification policy, he took no account whatsoever of this in
making his recommendation for the suspension. There is no apparent reason why Beam failed
to do so unless he was determined to discipline Lopez regardless of the circumstances. Indeed,
he acknowledged at the hearing that the “switch” occurred after Lopez last renewed his CPR and 10
ACLS certifications in 2010, and that the Company did not negotiate with the Union about it at
the time (Tr. 267, 291–292, 311, 320). Thus, there was good reason to believe that Lopez was
not aware of the new practice.23
Similarly, although Beam cited Lopez’ “ample reminders” in recommending suspension, 15
he failed to address the known problems with those reminders. Thus, although Beam mentioned
Lopez’ denial that he received the scheduler’s voicemails on his personal cell phone and that
Lemoine herself had reminded him to turn in his certifications, Beam never explained, either in
his recommendation or at the hearing, whether or why he disbelieved Lopez.24 Indeed,

22 The Company itself cites a third example—its failure to suspend employee Greg Empey in
May 2012— arguing that this example “clearly” disproves the General Counsel’s theory because
Empey is likewise a member of the union bargaining team (Br. 20). The argument might be
persuasive if it had any factual basis. Although Carpenter testified that Empey is a union official
of some sort (Tr. 204), there is no evidence that he served on the union bargaining team.
Further, the Empey example actually occurred in May 2013, well after the unfair labor practice
charges were filed (R. Exh. 8; Tr. 202–205). Thus, it is not particularly probative. See
Windstream Corp., 352 NLRB 44, 50 (2008), reaffd. 355 NLRB 406 (2010).
23 Contrary to the Company’s posthearing brief (p. 19), it is not clear from Lopez’ hearing
testimony that he had turned in his recertifications to Clonts or other managers in the past when
he took the training at the Company’s facility. While that is a possible interpretation of his
testimony, it is not the only one, or even the most reasonable one. See Tr. 405–406. In any
event, there is no evidence that the Company considered Lopez’ past actions in rejecting his
excuse for not timely turning in his new cards in this instance. For similar reasons, I do not give
any weight to Trainor’s testimony that he told employees at the end of the class that they must
turn in their cards (Tr. 236), which is also cited in the Company’s brief (p. 13). First, the
testimony is not particularly credible. Indeed, Trainor, who works for the Phoenix Fire
Department when he is not conducting training for the Company, initially testified that he was
not aware of any policy telling employees what they need to do with their cards, and that he only
gave them copies of the cards “as a courtesy, because I’m a nice guy” (Tr. 235–236). Moreover,
Lopez credibly testified that he received his cards from the training department secretary, not
from Trainor himself, and that the secretary did not give him any instructions on what to do with
the cards (Tr. 404–405). Second, even if Trainor’s testimony were credible, there is no evidence
that the Company knew or considered what Trainor told his trainees when it disciplined Lopez.
24 Beam’s recommendation incorrectly quoted Lopez as saying that he did not get his voice
mails because he forgot his password. Similarly, the Company’s posthearing brief incorrectly
states (p. 15) that Lopez said he did not know how to retrieve email from his personal phone. In
JD(SF)–1–14
14
conspicuously absent from both Lemoine’s and Beam’s hearing testimony was any mention of
Lemoine’s reported reminder. Although both testified about Lopez’ suspension at the hearing,
Lemoine did not testify that she had reminded Lopez, and Beam did not testify that he relied on
Lemoine’s report in concluding that Lopez had “ample reminders” and should be suspended.
Nor does the Company’s posthearing brief mention or rely on Lemoine’s reported reminder as 5
support for the suspension.
Considered together, the foregoing circumstances strongly support an inference of
unlawful motive. See, e.g., Wright Line, 251 NLRB at 1090–1091, 1097; and Carolina Steel
Corp., 296 NLRB 1279, 1283–1284 (1989). See also Healthcare Employees Local 399 v. NLRB, 10
463 F.3d 909, 919 (9th Cir. 2006) (“circumstantial evidence is sufficient to establish anti-union
motive.”); and Bally's Park Place, Inc. v. NLRB, 646 F.3d 929, 935–939 (D.C. Cir. 2011) (“most
evidence of motive is circumstantial”).25
Finally, the Company has failed to establish that it would have suspended Lopez even 15
absent his union activity. Although the Company provided several examples where other
employees were disciplined for failing to submit their new certifications at least 7 days before
expiration of their old ones,26 it presented only one example, in November 2011, where an
employee (David Herman) had likewise received the training and recertifications from the
Company rather from than an outside source. Further, the only evidence it presented to prove 20
this is a copy of a sign-in sheet containing Herman’s name (R. Exh. 9). The sign-in sheet is
missing its top half and thus, unlike the July 13, 2012 sign-in sheet that Lopez signed (GC Exh.
49), does not indicate whether the training was for the same recertifications (PALS and CPR)
that Herman failed to timely submit. Trainor testified that the form is also used for ACLS
training (Tr. 230–232; see also GC Exh. 51). In addition, the sign-in sheet is undated, and thus 25
it is not even clear that the sign-in sheet was for the relevant training class. Although Trainor
testified that it appeared to be for that class, he based this solely on a handwritten notation,
across from one of the other trainees (Alan Gregory), indicating that, while Gregory was initially
recorded as incomplete, he “completed” the training on “10-21-11.”27
30

fact, as indicated above, Lopez stated that he did not know how to retrieve his voice mails at the
time (GC Exh. 58).
25 In its posthearing brief, the Company argues that I should have permitted it, over the
General Counsel’s objection, to examine Lopez about whether he personally believed the
Company suspended him because of his union activity. See Tr. 417–418. However, Lopez’
personal belief that the suspension was not discriminatory would be no more relevant than his
personal belief that it was discriminatory. Discriminatory motive is proven or disproven by
objective facts, not by subjective opinions. See Grizzell v. City of Columbus Division of Police,
461 F.3d 711, 724 (6th Cir. 2006); and Billet v. Cigna Corp., 940 F.2d 812, 825 (3d Cir. 1991),
overruled in part on other grounds 509 U.S. 502 (1993).
26 See GC Exh. 48; R. Exhs. 9–10.
27 It is unclear who wrote this. Although Trainor testified that he wrote the letters and
numbers in the first and third columns from the left, it is unclear from his testimony if he also
wrote the notation in the second column regarding Gregory. See Tr. 233–235. Accordingly, for
this and the other reasons indicated above, I find that the sign-in sheet is unreliable and
unpersuasive, and therefore proves nothing.
JD(SF)–1–14
15
Moreover, as discussed above, the record indicates that the Company has not consistently
enforced the 7-day policy. Although perfection is not required,28 the inconsistency cannot
reasonably be overlooked here given the lack of substantial evidence that the policy had ever
previously been enforced where the employee received the training and recertification cards from
the Company.5
Accordingly, I find that the Company discriminatorily suspended Lopez in violation of
Section 8(a)(3) of the Act, as alleged.
IV. Unilateral Changes Regarding Effects of Chandler Contract on January 3, 201310
Nearly half of PMT’s business comes from contracts with cities and municipalities. The
Company obtains these contracts by bidding on requests for proposals (RFPs) issued by the local
governments. As discussed in the prior cases, the Company has historically had such contracts
with Tempe, Scottsdale, Peoria, and Chandler. 15
Prior to 2013, PMT’s contract with Chandler covered only a portion of the city. PMT
therefore maintained only one dedicated 911 unit/station in the city (282), which was staffed
with three PMT paramedics and three EMTs over three shifts. Although PMT also had two other
rescue units in Chandler, they operated out of city fire department stations and were staffed with20
city firefighter-paramedics instead of PMT paramedics.
Sometime in 2011, Chandler issued a new RFP, which, unlike the existing contract with
PMT, covered the whole city. The Company forwarded a copy of the RFP to the Union, and in
late July 2011 Barkley offered the Union’s position on it. Barkley objected to the RFP because, 25
among other things, it would effectively require PMT to use city firefighter-paramedics on all of
the 911 units instead of PMT paramedics, and to reimburse the city at the firefighters’ higher
wage and benefit rates, thereby placing “additional pressure on any future wage adjustments” for
PMT employees. Barkley notified the Company that, if it bid on the RFP and executed a
contract with Chandler that removed the PMT paramedics from the ambulances, the Union 30
wanted to “bargain over the affects.” Specifically, Barkley stated that the Union would seek
“equivalent working conditions, pay and benefits for the entire unit and the employees
displaced.” (GC Exh. 15; Tr. 448.)
Notwithstanding the Union’s objections, the Company did, in fact, bid on the Chandler 35
RFP. As CEO Wilson informed Barkley at the time, if the Company failed to bid on the RFP,
the Company would lose its current business with the city and potentially have to layoff 18
bargaining unit employees (GC Exh. 14). Further, as Human Resources Director Carpenter
subsequently reminded Barkley on January 6, 2012 (GC Exh. 42), a provision in the parties’
December 2010 settlement agreement in the third unfair labor practice case specifically allowed 40
the Company to unilaterally submit bids that transferred bargaining unit work to nonunit
employees if required by the RFP. See fn. 1, above, and R. Exh. 15, p. 00006.

28 Consolidated Biscuit Co., 346 NLRB 1175, 1179 fn. 24 (2006), enfd. 301 Fed. Appx. 411
(6th Cir. 2008)
JD(SF)–1–14
16
The city accepted the Company’s bid on March 5, 2012, and the contract was approved
by the Arizona Department of Health Services (DHS) about 3 months later, on June 26 (GC
Exhs. 20 and 60). Approximately 3 weeks later, on July 16, Wilson wrote Barkley and requested
to meet and bargain regarding Chandler. Wilson advised Barkley that the effective date of the
Chandler contract would be January 2013. He also acknowledged that the three existing5
paramedic positions would be lost under the contract. However, he stated that there would be an
increase of nine EMT positions, and that the three displaced paramedics would be moved
elsewhere in the Company with no loss of annual pay. (GC Exh. 7.)
Barkley responded by email 2 days later, requesting “a detailed and itemized list of what 10
it is that you want to negotiate so we can prepare accordingly.” (GC Exh. 13). Wilson replied
the following day, listing the following specific items regarding Chandler:
1. Plans and details of the City of Chandler contract projected to be
implemented in January2013; 15
2. Projected impact on the unit;
3. Making any displaced Paramedics whole; [and]
20
4. Any items relating to Chandler that ICEP wishes to discuss.
Wilson also identified a few other items for discussion, including eliminating unit 603. (GC
Exh. 19.)
25
The parties subsequently met on August 1. The Company at that time presented the
Union with proposed agreements regarding both Chandler and unit 603. The proposed
memorandum of understanding (MOU) regarding Chandler stated that, “in full satisfaction of
any and all obligations under the NLRA,” the parties agree that “[a]ny and all paramedics
displaced by the City of Chandler contract (expected to be 3) will be placed elsewhere in PMT at 30
no loss of annual pay, defined as base hours and current scheduled overtime, or seniority.”
The Company also gave the Union two other supportive or related documents. One listed
the new “rescue” units under the new contract (i.e., units staffed by firefighter paramedics and
located at city fire department stations) and the expected change in the number of PMT 35
paramedics and EMTs. The other identified the three unit/station 282 paramedics who would be
displaced: Brad Taylor, Eric Hightower, and Jason Bickford. It indicated that Taylor would be
moved to a permanent slot on unit 284—a Chandler “general transportation” (GT) unit stationed
about 5 miles away that transported patients between facilities and performed 911 emergency
work only on a “backup” basis— displacing one of two paramedics temporarily assigned there. 40
As Taylor was also the Field Training Officer (FTO) assigned to unit/station 282,29 the document

29 An FTO is the Company’s “first line of communication” between management and the
crews, and also serves as the liaison between PMT and city fire departments and personnel. The
FTO provides supplies and relays personnel and other general information to the crews, checks
the stations to ensure that required maintenance duties are performed, and also responds to
JD(SF)–1–14
17
stated that the Company intended to post and fill an FTO position at unit 284 prior to the contract
start date. Finally, the document stated that Hightower and Bickford, who were both temporarily
assigned to unit/station 282, likewise needed to be permanently reassigned by January 3.30
The proposed Chandler MOU also addressed the issue of assigning part-time work to 5
firefighters. This was an issue that had arisen in late 2008, when the Company unilaterally
increased its use of off-duty firefighters to perform non-emergency GT work on a part-time
basis, thereby depriving bargaining-unit employees of unscheduled overtime. In his November
2009 decision in the first unfair labor practice case, ALJ Kocol found that the Company had
thereby violated Section 8(a)(5) of the Act, and ordered the Company to rescind the transfer of 10
work and restore it to unit employees as it previously existed. As discussed above, ALJ Kocol’s
decision was adopted by the Board in the absence of exceptions on December 13, 2010, and was
subsequently enforced by the Ninth Circuit Court of Appeals on June 27, 2011. The parties
thereafter reached a stipulation resolving all compliance issues on June 15, 2012. The
stipulation specifically provided that the Company had “subcontracted” 52,903 hours to non-15
bargaining unit firefighters prior to its unlawful transfer of the work in 2008; thereby indicating
that this was the baseline number that the Company had to return to pursuant to ALJ Kocol’s
order. (GC Exh. 4, p. 5, par. (e).) In the meantime, during their negotiating sessions in April and
May, the parties also made proposals and bargained over the subcontracting issue “going
forward.” The proposals generally focused on imposing a “cap” on the number of hours the 20
Company could assign to non-bargaining unit part-time firefighters during a 12-month period,
using the 52,903 number as the baseline. The proposals, however, specifically excluded
firefighter hours required by contracting municipalities, which were not at issue in the first case.
(R. Exh. 30; GC Exhs. 17–18, 63; Tr. 102–103, 780, 788). And a tentative agreement (TA) on
subcontracting that the parties executed on June 7, 2012, shortly before the Company made its 25
LBFO, specifically excepted such firefighter hours pursuant to both the existing Tempe contract
and the “forthcoming” new Chandler contract (GC Exh. 16). The Company’s August 1, 2012
proposed MOU regarding Chandler reiterated this, stating that “[a]ny additional part-time
firefighter hours resulting from the use of contracted firefighters under the City of Chandler
contract will not be included in the 52,903 baseline part-time firefighter hours per the 30
compliance specification.”
As with the proposed MOA regarding unit 603 (see sec. II, above), the Union offered no
response to the Chandler MOU or related documents at the meeting. Rather, the Union simply
stated that it would take them under advisement. (Tr. 686–687.) 35
Approximately a week later, on August 6, Barkley informed Wilson that both the
subcontracting TA and the Company’s LBFO had been “voted down” (GC Exh. 9). The
following day, Barkley emailed Wilson a proposed agreement. The proposal, entitled “EMS
Reform,” addressed, not only staffing in Chandler, but also in other cities. Among other things, 40

incidents or accidents involving the crews. FTO positions are posted, and individuals selected to
be permanent FTOs are paid an extra $1.50/hour. (Tr. 330–334, 359, 421–422, 426–427, 431.)
30 See GC Exh. 22; R. Exhs. 29, 41; and Tr. 109, 691–693, 833–834. Although Barkley
testified that the Company did not give the Union the latter two documents at the August 1
meeting (see Tr. 495–496, 554–555, 584), I discredit his testimony as contrary to the weight of
the evidence. See also GC Exh. 12 (item 5).
JD(SF)–1–14
18
the proposal stated that the Company would “maintain all current staffing levels in all cities that
PMT contracts with for 911 services,” and that “no PMT employee or unit member shall be
displaced from their assigned position for any reason.” It also stated that “all current ambulance
contracts,” with the exception of Peoria, would be “maintained with Advanced Life Support
units that deploy one PMT/ICEP Paramedic, and one PMT/ICEP [EMT]”; that no RFP could 5
“displace, or replace current PMT/ICEP staff through change in delivery system”; and that
municipal RFPs would “have no effect on staffing in any of the aforementioned areas.”
The Union’s proposal also addressed the use of part-time workers for “backfilling
scheduling holes.” The proposal stated that the Company could only use “non-fire part time 10
employees” for backfilling. It also stated that the Company could only “schedule 52,903 hours
for firefighters throughout the entire system, acknowledging that Chandler uses 17,520 hours and
Tempe uses 17,520 hours per year for a total of 35,040 hours.” Unlike the Company’s August 1
proposal and the recently rejected TA, however, it did not specifically exclude from this cap the
required use of city firefighter paramedics under municipal contracts. (GC Exh. 21/ R. Exh. 17.)15
Wilson responded to Barkley on August 10. He stated that it was unclear to the
management bargaining team whether the Union’s proposed agreement was a counter to the
Company’s proposed MOU regarding the effects of the Chandler contract. However, Wilson
stated that, if so, the Union’s proposal was rejected because it would not allow the Company to 20
fulfill the contract with Chandler, which had already been approved and required the use of city
firefighter-paramedics on each ambulance. Wilson asked Barkley to “[p]lease let us know if the
Union has any responsive proposal to our needs as reflected in the MOU tendered to your
committee on August 1 for the PMT to consider, or are we at loggerheads on the issue.” (GC
Exh. 23.)25
Barkley replied later the same day. He advised Wilson that the Union would respond the
following week “when we have had time to discuss our options.” He acknowledged that he did
“feel it necessary to be more genuine on this issue.” He noted that the Chandler RFP had been
“submitted” while ALJ Kocol’s order, including the provisions addressing the unlawful attempt 30
to terminate him and “the subcontracting issue,” were before the Ninth Circuit for enforcement.
He also stated that the Chandler contract “is not viewed as a positive thing for PMT employees,”
because it “removes private paramedics from the 911 system” and “pay[s] firefighters 90k each
and a gravy overtime ride at $30 an hour,” which “seems to be coming out of our pocket also” as
the Company had offered only a 1-percent raise in its LBFO at the “unlawful bargaining session” 35
on June 7. Nevertheless, Barkley stated that “there is a solution to this” and promised to get
back to Wilson “with some proposal as soon as I can.” However, he stated that “any proposal we
submit will be in CBA [collective-bargaining agreement] form.” (GC Exh. 24.)
Wilson responded to Barkley early the following week, on August 14. He disagreed that 40
the Chandler contract was not a positive thing for PMT employees. He noted again that it would
expand the bargaining unit by nine EMTs and that the three displaced paramedics would be
reassigned elsewhere at no loss of annual pay. He also reiterated that the Company was “seeking
to fulfill [its] bargaining obligations concerning this matter with the Union,” and stated that the
Company looked forward to receiving the Union’s response to the Company’s proposal 45
sometime that week as Barkley suggested. (GC Exh. 25.)
JD(SF)–1–14
19
Barkley replied late that evening. He said he had discussed Wilson’s email with his
“constituents” and they were “struggling with where to go from here.” He again reviewed the
Company’s history of unfair labor practices and rejection of the Union’s various collective-
bargaining proposals. He accused the Company of “prematurely ending negotiations” when it
presented its LBFO on June 7, and also cited the Company’s alleged failure to bargain with the 5
Union before subsequently writing a letter to employees offering them a ratification bonus. He
also cited a litany of other alleged wrongs, which he stated proved “nothing has changed.” As
for Chandler, Barkley stated:
We can go back and forth on Chandler till the cows come home, but at the end of 10
the day, you have shown that it comes out of our pocket and our employees are
displaced. . . .We are under no obligation to bargain away our unit, one RFP at a
time. . . .We move [sic] to create another proposal for you, but it is looking
redundant and your response preconceived by our team. . . . We will see what we
can come up with, but what we have on paper now rectifies all scenarios and has 15
been previously ignored or rejected by your team. [GC Exh. 26.]
Wilson responded 2 days later, on August 16, “to set the record straight.” He disputed
Barkley’s review of the bargaining history, and detailed the Company’s efforts since 2006 to
increase the number of both paramedics and EMTs, within the RFP and contractual limitations 20
imposed by the cities or other political subdivisions. He told Barkley, “I am hopeful you will
reconsider your position and make a sincere proposal that perhaps can bring our two sides closer
to a resolution and collective bargaining agreement.” (GC Exh. 27.)
Thereafter, on August 19, Barkly notified Wilson that the Union was almost finished 25
drafting it proposal. However, another week passed without Wilson receiving anything.
Accordingly, on August 27, he emailed Barkley and the other members of the union bargaining
team asking if there was “any new follow up on the proposal you mentioned.” (GC Exh. 29.)
Two more weeks passed without a response. Accordingly, on September 10, Wilson sent 30
another email to Barkley. He reviewed the history, noting that “we have been discussing the
City of Chandler RFP now for months.” He stated that, if the Company did not receive a
counterproposal to its MOU by Friday, September 14, “we will assume that we are at
loggerheads and the Union has no further suggestions or counterproposals to the MOU.” (R.Exh.
19.)35

Barkley formally responded by letter the following week, on Monday September 17. He
again reviewed the overall bargaining history, repeating his previous assertion that the Company
had “prematurely ended” the June 7 bargaining session and subsequently offered the employees
a ratification bonus without first negotiating it with the Union. With respect to Chandler, he 40
noted that the Company had announced to the employees, “without notifying or negotiating with
the Union,” that the Company had pursued and won the Chandler contract. He also noted that
the RFP was “issued in August 2011 while there was a 9th circuit court order that was clear on
subcontracting restrictions.” Barkley asserted that “PMT was to cease and desist and redact all
subcontracting and subcontractors, yet a contract was negotiated with a city that should have 45
known about the restrictions.” Barkley stated that it was the Union’s “impression” that “legally”
the Company’s response to the RFP “could not contain subcontracting as per the 9th Circuit’s
JD(SF)–1–14
20
order, but PMT bid for the removal of its own employees anyway.” He also accused the
Company of failing to stop “the use of firefighters” as agreed in the June 15 compliance
stipulation.
Barkley also attached to his letter the promised union proposal. The proposal was in the 5
form of a complete collective-bargaining agreement, and addressed numerous terms and
conditions, including wages and benefits. With respect to “subcontracting,” the proposal set
forth three options. “Option 1” instituted a subcontracting cap of 52,903 hours per year, and
required the Company to match employee wages, benefits, and working conditions to the
subcontracted workforce and to negotiate with the Union before terminating an employee “for 10
any reason.” “Option 2” provided that the Company would “transfer” employment of the unit
employees to the cities currently under contract with PMT; the employees would retain their
seniority and maintain their same wages, benefits, and working conditions with the city, but with
civil service protections and state sponsored pension and healthcare; and the cities would
recognize the Union as the employees’ bargaining representative. “Option 3” provided that the 15
Union would “transfer 70,010 hours of unit work to non-unit firefighters,” but the Company
would negotiate civil service protections, pensions and benefits for PMT employees, and “at no
time [would] any PMT employee be laid off, terminated or harassed to the point of voluntary
separation.” (GC Exh. 30; Tr. 592–593.) However, the proposal did not otherwise specifically
address the effects of the Chandler contract on bargaining unit employees. 20
Wilson responded by email 2 days later, on September 19. He expressed disappointment
with the Union’s contract proposal overall, but said the Company would study it and respond
with a counter. “As for the items that relate to Chandler,” Wilson said,
25
there was nothing to indicate that the parties are not at impasse. Indeed, the union
withdrew its TA that could have resolved the matter. The company is
implementing its Chandler MOU. Obviously nothing final will happen until
January. (GC Exh. 31.)
30
Barkley replied later the same day. He reminded Wilson that the union membership had
voted down the TA, which limited the Union’s ability to negotiate. As for the Chandler MOU,
Barkley stated, it was “dead on arrival as we previously notified you of.” (GC Exh. 32.)
The Company subsequently proceeded as planned. In September it posted for special 35
bid the EMT positions created by the Chandler contract. It also posted and filled the FTO
position at unit 284 (selecting Taylor for the A shift). Thereafter, on January 3, 2013, when the
Chandler contract became effective, the Company closed Chandler unit/station 282 and
transferred Taylor to unit 284 and the two other paramedics to other ambulances. Pursuant to
the terms of the Chandler contract (GC Exh. 20, p. 3, sec. 2.1), it also reassigned all bargaining-40
unit employees in Chandler to post out of the city fire department stations.
The General Counsel contends that the foregoing unilateral changes violated Section
8(a)(5) of the Act because, contrary to the Company’s assertions, the parties had not reached a
valid impasse over the effects of the Chandler contract. The General Counsel’s primary theory, 45
articulated both at the hearing and in the posthearing brief, is that a valid impasse was precluded
by the Company’s prior, unremedied unfair labor practices; specifically, unlawfully bypassing
JD(SF)–1–14
21
the Union and offering employees a contract ratification bonus in June 2012, unilaterally shutting
down unit 603 in August 2012, and discriminatorily suspending Lopez, a member of the union
bargaining team, on September 17, 2012.
As found above, however, the Company did not unlawfully bypass the Union when it 5
notified employees of the ratification bonus; contrary to Barkley’s September 17 letter, the
Company’s previous communication to the employees about the offer was entirely lawful. As
for shutting down unit 603 and suspending Lopez, the General Counsel offers no explanation
how or why these violations contributed to the parties’ failure to reach agreement regarding the
effects of the Chandler contract. Nor is the causal relationship so obvious as to be self 10
explanatory. While the Company raised unit 603 at the August 1 meeting, it proposed a separate
agreement on the issue, and there was little or no discussion about it. Further, the issue was not
thereafter discussed or tied together with the Chandler issue in any way, and was not even
mentioned in Barkley’s September 17 letter. As for Lopez’ September 17 suspension, it was
only for 1 day and retroactive to August 26, and there is no evidence that he was unable to 15
participate in the Chandler negotiations because of the retroactive suspension or that it impacted
the negotiations in any way. Accordingly, I reject the General Counsel’s theory. See Aramark
Educational Services, supra.
The General Counsel’s posthearing brief additionally argues that the Company failed to 20
give the Union prior notice of the changes before declaring impasse and implementing them.
However, this is factually incorrect; as found above, the Company provided the Union with
documents at the August 1 meeting that specifically stated how the Company proposed to
address the effects of the new contract under the proposed MOU.31 The January 2013 changes
were either identical to or reasonably comprehended by those proposals. See generally Taft 25
Broadcasting Co., 163 NLRB 475, 478 (1967), review denied AFTRA v. NLRB, 395 F.2d 622
(D.C. Cir. 1968) (“an employer does not violate the Act by making unilateral changes that are
reasonably comprehended within [its] pre-impasse proposals”). Moreover, as indicated above, at
least some of the changes, such as posting the 911 units at city fire department stations, were
required by, and therefore “an inevitable consequence” of, the Chandler contract. See The 30
Fresno Bee, 339 NLRB 1214 (2003); and Holly Farms Corp., 311 NLRB 273, 278 (1993), enfd.
48 F.3d 1360 (4th Cir. 1995), affd. 517 U.S. 392 (1996) (indicating that there is no duty to
bargain over such effects). Accordingly, the argument is without merit.
Finally, the General Counsel’s posthearing brief alternatively argues that, even if the 35
Union was given adequate notice, the Company declared impasse on September 19 prematurely,
i.e. it “had the obligation to not simply reject [the Union’s September 17 proposal] and declare
impasse but to continue discussing the proposals” (Br. 20 fn. 8, 34). I reject this argument as
well. In evaluating the existence of an impasse, the Board considers a number of factors,
including the bargaining history, whether the parties have negotiated in good faith, the length of 40
the negotiations, the importance of the issues over which there is disagreement, and the
contemporaneous understanding of the parties regarding the status of the negotiations. Taft, 163

31 Although there is no evidence that the Company gave the Union prior notice of the
September 2012 special bid for the anticipated new EMT positions, this was not alleged as an
unfair labor practice in the complaint. Nor was the Company’s legal obligation, if any, to
provide advance notice and an opportunity to bargain over such bids fully litigated.
JD(SF)–1–14
22
NLRB at 478. Here, as discussed above, although the Company committed certain other unfair
labor practices during the same general time period, the violations did not in any way impact the
negotiations over the effects of the Chandler contract. Nor is there any allegation or evidence
that the Company bargained in bad faith, either with respect to the effects of the Chandler
contract or in the overall negotiations for an initial collective-bargaining agreement. Further, 5
while only about 7 weeks passed between the Company’s August 1 proposal and its September
19 declaration of impasse, the Union never provided a counterproposal to the Company during
that time specifically addressing the effects of the Chandler contract on the workforce. Rather,
Barkley continued to object to the RFP/contract itself—in part on erroneous legal grounds—and
offered only various “EMS reforms” and “subcontracting options” that were tied to broader 10
issues in collective bargaining and prevented the Company from performing the contract and/or
failed to address the effects of the contract as written.32 Moreover, in his September 19 response,
Barkley did not dispute Wilson’s assertion that the parties were at impasse regarding the effects
of the Chandler contract. Nor, despite Wilson’s assurance that “nothing final will happen until
January,” did the Union subsequently request additional meetings or make any subsequent15
proposals regarding the matter to break the impasse prior to that time.
The General Counsel’s brief fails to address any of the foregoing facts and circumstances.
Indeed, it does not even mention the relevant Taft factors for evaluating the existence of an
impasse. 20
Accordingly, the allegation is dismissed.
V. Unilaterally Relocating Station 2 Employees to Station 3 on January 17, 2013
25
About January 17, 2013, the Company unilaterally relocated its employees at station 2 in
Glendale to station 3 in Peoria (about 6 miles away) without giving the Union notice or an
opportunity to bargain (GC Exh. 39–40; Tr. 145–148, 152, 496). The General Counsel contends
that the decision to relocate station 2 employees was a mandatory subject of bargaining because
it did not involve a change in the scope and direction of the enterprise, citing Dubuque Packing, 30
303 NLRB 386 (1991), enfd. sub nom. Food & Commercial Workers Local 150-A v. NLRB, 1
F.3d 24 (D.C.Cir. 1993).
However, as indicated by the Company, under Dubuque even relocations that are
unaccompanied by a fundamental change in the business do not require bargaining “[i]f the 35
employer shows that labor costs were irrelevant to the decision.” Id. at 391. Here, there is no
dispute that the relocation had nothing to do with labor costs. The purpose of the relocation was
simply to provide the crews with better working conditions, as station 3 is a newer facility with
working air conditioning and toilets, a large kitchen and breakrooms, and a secure parking lot,
and there is no evidence that any unit employee suffered a reduction in pay or benefits. (Tr. 40

32Contrary to Barkley’s assertions in his September 17 letter, there is no complaint allegation
or record basis to conclude that the Company violated any of the prior orders or the Act by
unilaterally bidding on the Chandler RFP and/or executing the contract. See Tr. 19, 88; GC Br.
13, fn. 3. Similarly, as with the unit 603 issue, the General Counsel does not contend that the
Company was obligated to refrain from implementing its Chandler MOU until the parties had
reached an overall impasse in the negotiations for an initial collective-bargaining agreement.
JD(SF)–1–14
23
151–152, 701.) Accordingly, the Company clearly had no duty to bargain over the decision. See
also Mercy Health Partners, 358 NLRB No. 69, slip op. at 2 fn. 9, and 8 (2012).33

The General Counsel also contends that the Company had a duty to bargain over the
effects of the relocation. And it is generally true that, “[e]ven when an employer does not have a 5
duty to bargain about a decision to relocate, it still has a duty to bargain with the union over the
effects of that decision on unit employees.” Mercy Health Partners, slip op. at 2; citing First
National Maintenance Corp. v. NLRB, 452 U.S. 666, 681 (1981). See also Naperville
Jeep/Dodge, 357 NLRB No. 183, slip op. at 21 (2012), and cases cited there. However, this rule
only applies if the employees were adversely affected in some “material, substantial, and 10
significant” way. The Fresno Bee, supra. See also Rochester Gas & Electric Corp., 355 NLRB
No. 86 (2010), enfd. sub nom. Electrical Workers Local 36 v. NLRB, 706 F.3d 73 (2d Cir. 2013);
and EAD Motors, 346 NLRB 1060, 1065 (2006).34 Here, as indicated by the Company, there is
no record evidence that the station 2 unit employees were adversely impacted in any way by their
relocation to station 3. Thus, no effects bargaining was required. 15
Accordingly, the allegation is dismissed.
VI. Failing to Provide Information Requested on January 30, 2013
20
On January 24, 2013, Barkley sent Human Resources Director Carpenter an email listing
several “scheduling malfunctions that need attention,” including employee reports that overtime
had been cut. Carpenter responded on January 30, advising Barkley that overtime was being
monitored, there had been no change in policy, and the Company continued its attempts to
spread out overtime opportunities. Barkley replied later the same day, stating:25
I will detail the loss of overtime by the numbers and get it back to you as soon as
possible. I would think that all former Chandler medics that were transferred to
GT lost the ability to obtain overtime. Did you compensate them for their loss by
adjusting their pay? Please advise on the adjustments of all paramedics pay, 30
companywide that had a pay adjustment for scheduling changes or reductions.
(GC Exh. 43.)
Carpenter responded on February 8, describing in detail the history of how and where the
unit 282 and 284 paramedics who were displaced by the Chandler contract were reassigned. As 35
for Barkley’s query about compensation/pay adjustments, she stated, “On a quarterly basis, we

33 In light of this conclusion, it is unnecessary to address the Company’s alternative argument
that no bargaining was required under the Fourth Circuit’s analysis in Dorsey Trailers v. NLRB,
233 F.3d 831 (2000).
34 As indicated by the General Counsel, it is well established that employers must bargain
over a decision to implement changes in mandatory subjects of bargaining even if the changes
would be beneficial to employees. See, e.g., Allied Mechanical Services, 332 NLRB 1600, 1609
(2001); and Randolph Children’s Home, 309 NLRB 341, 343 fn. 3 (1992). However, the
General Counsel cites no authority applying the same rule to bargaining over the effects of
nonmandatory subjects of bargaining.
JD(SF)–1–14
24
will conduct a true up for those eligible displaced employees to fulfill the obligation to make
them whole.” (GC Exh. 44.)
Barkley did not reply to Carpenter’s February 8 response (Tr. 172, 210). Instead, about 3
weeks later, on February 26, he filed an unfair labor practice charge on behalf of the Union. 5
Among other things, the charge alleged that the Company had unlawfully failed to provide the
Union with requested information “regarding the pay rate changes for 12-hour staff” (GC Exh.
1(h)).
The General Counsel alleges, the Company does not dispute, and I find that the 10
compensation/pay adjustment information Barkley requested was relevant and necessary to the
Union’s performance of its duties as the unit employees’ collective-bargaining representative.
Nevertheless, in agreement with the Company, I find that a preponderance of the evidence fails
to support a conclusion that Carpenter’s February 8 response violated the Company’s duty to
bargain. As indicated above, Carpenter’s email provided detailed information to Barkley15
regarding the reassignment of the displaced paramedics, and assured Barkley that the Company
would “make them whole” on a quarterly basis for any scheduling changes or reductions. As
Barkley made no response or objection to this, there was no reason for Carpenter to believe, prior
to the Union’s February 26 unfair labor practice charge, when there was still over a month left in
the quarter, that her response was considered unacceptable. Nor does the General Counsel 20
contend that the February 26 charge was sufficient to put the Company on notice thereafter that
Carpenter’s response was insufficient. Accordingly, the allegation is dismissed. Cf. Day
Automotive Group, 348 NRLB 1257, 1263 (2006) (finding that the employer did not unlawfully
fail to provide the union with requested information about a proposed health plan as the
employer gave the union the information it had at the time and had every reason to believe 25
satisfied the union, and the union gave no indication that it needed or expected more
information).
VII. Unilaterally Changing Location and Duties of Unit 284 in March 2013
30
As indicated above, unit 284 is a 24-hour GT unit that transports patients between
facilities and also performs 911 emergency work on a “backup” basis. It posts out of its own
station in Chandler, but has historically been redeployed or “moved up” into Scottsdale to assist
with call demand. In March 2013, however, the Company directed unit 284 to post out of station
275 in Tempe, which borders Scottsdale, for the first 12 hours of the shift, between 8 and 10 am 35
until about 8 and 10 pm, to perform GT and backup work for both Tempe and Scottsdale. (Tr.
137, 432–434, 439, 441, 497, 618. ) The Company did so unilaterally, without providing the
Union with any advance notice or opportunity to bargain. And the Union did not otherwise learn
of the change until after it was implemented. (Tr. 137, 496–497, 622–633.)
40
Unlike the Company’s decision to relocate station 2, the General Counsel does not
contend that this decision constituted a mandatory subject of bargaining under Dubuque or any
other test or analysis. Rather, the General Counsel argues that the Company had an obligation to
provide the Union with notice and an opportunity to bargain over the change pursuant to its
obligation to bargain over the effects of the new Chandler 911 contract. However, unlike with 45
the earlier January 3 changes, the record fails to establish any significant causal connection
between the Chandler contract and the March change. Accordingly, I reject the argument.
JD(SF)–1–14
25
Nevertheless, as discussed above, the Company was obligated to provide the Union with
notice and an opportunity to bargain over any substantial adverse effects of the decision. And,
unlike with the relocation of station 2, the record indicates that the decision to modify unit 284’s
posting location and duties did, in fact, have such an impact. The increased workload backing up
two cities, constant driving back and forth, and being away from their home station limited the 5
crews’ downtime and ability to fix meals between calls. They also made it impossible for Taylor
to properly perform his FTO duties at station 284. Indeed, for all of the foregoing reasons,
Taylor transferred to an FTO position at a Scottsdale 911 unit (604) in May. (Tr. 433–435, 439–
441; see also Tr. 497–498.)
10
The Company offers no substantial response to the foregoing evidence or other defense to
the allegation. Accordingly, I find that the Company violated Section 8(a)(5) of the Act by
failing to give the Union notice and an opportunity to bargain over the effects of the March 2013
unilateral change.
15
CONCLUSIONS OF LAW
1. The Company violated Section 8(a)(5) and (1) of the Act by:
(a) Again shutting down unit 603 in August 2012 without providing the Union with 20
sufficient notice and a meaningful opportunity to bargain over the decision and its effects; and
(b) Changing the posting location and duties of unit 284 in March 2013 without
providing the Union with notice and an opportunity to bargain over the effects of the decision.
25
2. The Company violated Section 8(a)(3) and (1) of the Act on September 11, 2012 by
discriminatorily issuing a retroactive 1-day suspension to Tony Lopez effective August 26, 2012,
because of he was a union officer and member of the union bargaining team.
3. The Company did not otherwise violate Section 8(a)(5), (3), and (1) of the Act in the 30
manner alleged in the complaint.
REMEDY
The appropriate remedy for the violations found is an order requiring the Company to 35
cease and desist and to take certain affirmative action. Specifically, the Company will be
required to restore unit 603 as it existed prior to the unlawful August 2012 shutdown.35 Such a
restoration order is presumptively appropriate, and the Company has not to date shown, or even

35 Given the Company’s admission that it restored unit 603 in February 2012 as required by
ALJ Parke’s December 2011 order (see fn. 13 above), the Company shall presumptively be
required to again restore the unit in that manner, i.e. to schedule and staff the unit 8 hours per
day, 5 days per week. However, the ultimate determination of the appropriate manner in which
the unit must be restored will be left to the compliance proceeding. Cf. American Girl Place
New York, 355 NLRB 479, 480 (2010) (evidence warranted presumption that employer would
have granted actors a $6-per-show wage increase absent their protected activities, but employer
would be given an opportunity to demonstrate otherwise at the compliance stage).
JD(SF)–1–14
26
contended, that restoration of the unit would be unduly burdensome.36 The Company shall also
be required to make whole the unit employees for any lost earnings or benefits as a result of the
shutdown. Backpay shall be computed in the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest computed and compounded
as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), and Kentucky River 5
Medical Center, 356 NLRB No. 8 (2010).
The Company will also be required, on request, to bargain in good faith with the Union
over the effects of the March 2013 change in the posting location and duties of unit 284.
However, I deny the General Counsel’s request that the Company be required to pay 2-weeks 10
minimum backpay to the employees in the manner prescribed in Transmarine Navigation Corp.,
170 NLRB 389 (1968). Contrary to the General Counsel’s suggestion, such a remedy is not
automatic or appropriate in every effects-bargaining case regardless of loss. See AG
Communication Systems, 350 NLRB 168, 173 (2007), affd. in relevant part sub nom. Electrical
Workers Local 21 v. NLRB, 563 F.3d 418 (9th Cir. 2009). Further, the cases cited by the General 15
Counsel in support of such a remedy are clearly distinguishable. For example, in Live Oak Care
& Manor, 300 NLRB 1040 (1990), the primary case relied on by the General Counsel, the Board
found that a Transmarine remedy was appropriate because the employees had, in fact, suffered
financial losses, and that, on learning of the sale/transfer of the facility, the union had
immediately requested bargaining over such issues as accrued leave, severance pay, pending 20
grievances, and payment of all wages and benefits due. Moreover, the Board specifically stated
that, given these circumstances, “we need not decide whether the remedy for a minimum of 2
weeks’ backpay in Transmarine is warranted for all effects bargaining violations, regardless of
loss.” (Id. at 1040.)
25
The additional cases cited by the General Counsel following Oak Care are to the same
effect. In Richmond Convalescent Hospital, 313 NLRB 1247 (1994), the Board found that such
a remedy was appropriate because it was unclear whether all of the unit employees were hired
following the takeover/transfer of the business, and that, on learning about it second hand, the
union immediately requested bargaining over several pending issues in dispute, including sick 30
leave, overtime pay, a grievance, and payment of other wages and benefits due. In Sierra
International Trucks, 319 NLRB 948 (1995), the union repeatedly requested effects bargaining
before the asset sale occurred and before it was known whether the employees would be retained
by the new ownership. Further, the employer actually terminated all of the unit employees and
ceased operating when it transferred the franchise and assets. Although the dealership resumed 35
operating under the new ownership the very next business day, two of the former unit employees
either did not apply or were not hired after submitting applications. And in Sea-Jet Trucking
Corp., 327 NLRB 540 (1999), rev. denied mem. 221 F.3d 196 (D.C. Cir. 2000), the union sought
severance pay for employees who chose not to relocate and transportation costs for employees
forced to travel longer distances because of the move. 40

36 See, e.g., Solutia, Inc., 357 NLRB No. 15 (2011), enfd. 699 F.3d 50 (1st Cir. 2012). If
there is any new or previously unavailable evidence showing that restoration of unit 603 has
become unduly burdensome since the hearing, the Company may present that evidence in the
compliance proceeding. Id. at fn. 19.
JD(SF)–1–14
27
Here, in contrast, there is no evidence or reason to believe that Taylor or other unit
employees may have suffered economic losses as a result of the change. Nor is there any
evidence or reason to believe that the Union would have sought any kind of economic
compensation or benefits for the affected employees had it received timely notice. Accordingly,
I find that a Transmarine backpay remedy is unwarranted.5
With respect to the discriminatory 1-day suspension of Lopez, the Company shall be
required to expunge any reference to the suspension from the Company’s files, and to advise
Lopez that this has been done and that the suspension will not be used against him in any way.
The Company will also be required to make Lopez whole for any loss of pay or benefits as a 10
result of the suspension. Backpay shall be computed in accordance with F.W. Woolworth Co.,
90 NLRB 289 (1950), with interest computed and compounded as set forth in New Horizons and
Kentucky River, above.
Finally, the Company will be required to compensate employees for the adverse tax 15
consequences, if any, of receiving a lump-sum backpay award, and file a report with the Social
Security Administration allocating backpay to the appropriate calendar quarters. See Latino
Express, Inc., 359 NLRB No. 44 (2012).
Accordingly, based on the foregoing findings of fact and conclusions of law and the 20
entire record, I issue the following recommended37
ORDER
The Respondent, Professional Medical Transport, Inc., Mesa, Arizona, its officers, 25
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with Independent Certified Emergency 30
Professionals, Local No. 1 as the exclusive bargaining representative of the employees in the
following unit:
All full-time field paramedics, EMTs, IEMT’s, and registered nurses, but
excluding administrative staff individuals, support services or personnel not35
directly operating in the field as an EMS provider, guards, office clericals
and supervisors as defined by the National Labor Relations Act.
(b) Discriminatorily disciplining employees because of their union activities or to
discourage employees from engaging in union or other protected concerted activities.40
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

37 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(SF)–1–14
28
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Restore unit 603 as it existed prior to the unlawful August 2012 shutdown.
5
(b) Make whole the bargaining unit employees for any lost earnings and benefits
resulting from the unlawful 2012 shutdown of unit 603, in the manner set forth in the remedy
section above.
(c) On request, bargain in good faith with the Union to an agreement or valid impasse 10
over the effects of the March 2012 changes in the posting location and duties of unit 284.
(d) Within 14 days of the Board’s order, remove any reference to the unlawful August
26, 2012 suspension that it retroactively issued to Tony Lopez on September 11, 2012, and notify
Lopez within 3 days thereafter that this has been done and that the suspension will not be used 15
against him in any way.
(e) Make Lopez whole for any lost earnings and benefits resulting from the unlawful
suspension, in the manner set forth in the remedy section above.
20
(f) Compensate bargaining unit employees for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar quarters for each employee.
(g) Preserve and, within 14 days of a request, or such additional time as the Regional 25
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.
30
(h) Within 14 days after service by the Region, post at its facilities in Maricopa County,
Arizona copies of the attached notice marked “Appendix.”38 Copies of the notice, on forms
provided by the Regional Director for Region 28, after being signed by the 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 35
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
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 40
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

38 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
JD(SF)–1–14
29
all current employees and former employees employed by the Respondent at any time since
August 1, 2012.
(i) 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 5
the Respondent has taken to comply.
Dated, Washington, D.C. January 9, 2014
Jeffrey D. Wedekind10
__________________________________
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 fail and refuse to bargain in good faith with Independent Certified Emergency
Professionals, Local No. 1 as the exclusive bargaining representative of the following unit:
All full-time field paramedics, EMTs, IEMT’s, and registered nurses, but
excluding administrative staff individuals, support services or personnel not
directly operating in the field as an EMS provider, guards, office clericals
and supervisors as defined by the National Labor Relations Act.
WE WILL NOT discriminatorily discipline you because of your union activities or to discourage
employees from engaging in union or other protected concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights guaranteed by Section 7 of the National Labor Relations Act.
WE WILL restore unit 603 as it existed before we unlawfully shut it down in August 2012.
WE WILL make you whole for any lost earnings and benefits resulting from the unlawful 2012
shutdown of unit 603, in the manner set forth in the Board’s decision.
WE WILL, on request, bargain in good faith with the Union to an agreement or valid impasse
over the effects of our March 2012 changes in the posting location and duties of unit 284.
WE WILL, within 14 days of the Board’s order, remove any reference to the unlawful August
26, 2012 suspension that we retroactively issued to Tony Lopez on September 11, 2012, and
notify Lopez within 3 days thereafter that this has been done and that the suspension will not be
used against him in any way.
WE WILL make Lopez whole for any lost earnings and benefits resulting from the unlawful
suspension, in the manner set forth in the Board’s decision.
WE WILL compensate you for the adverse tax consequences, if any, of receiving lump-sum
backpay awards, and file a report with the Social Security Administration allocating the backpay
awards to the appropriate calendar quarters.
PROFESSIONAL MEDICAL TRANSPORT, INC.
(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.
2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, 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, (602) 640-2146.