Yellow Enterprise Systems

National Labor Relations Board - Board Decisions

Aug 17, 2004

342 N.L.R.B. 804 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 77
804
Yellow Enterprise Systems, Inc., d/b/a Yellow Ambu-
lance Service and Professional EMTs & Para-
medics, a Division of the International Brother-
hood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers & Helpers, AFL–CIO.
Cases 25–CA–26494, 25–CA–26532, 25–CA–
26605, 25–CA–26605–2, and 25–CA–26605–3
August 17, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND SCHAUMBER
On February 25, 2000, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Re-
spondent, the General Counsel, and the Charging Party
each filed exceptions and a supporting brief. The Gen-
eral Counsel and the Charging party filed answering
briefs to the Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
only to the extent consistent with this Decision and Or-
der.
I. INTRODUCTION
The judge found that the Respondent committed nu-
merous unfair labor practices during and after a union
organizing campaign among its employees at its Owens-
boro, Kentucky ambulance service, which resulted in the
Charging Party being certified as the employees’ bar-
gaining representative on April 6, 1999. The Respondent
argues only that the judge erroneously found that it
unlawfully disciplined, discharged, or constructively
discharged four employees—Renee McKinney, Roger
Brumley, Brian Kendall, and Vicky Belcher. The Gen-
eral Counsel argues that the judge erred in dismissing
certain complaint allegations and in failing to provide
certain employees with appropriate make-whole relief.
The Charging Party argues only that the judge errone-

1 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
2 The Respondent has excepted only to the judge’s finding that it
violated Sec. 8(a)(3) and (1) by disciplining or discharging employees
Renee McKinney, Roger Brumley, Brian Kendall, and Vicky Belcher.
In the absence of Exceptions, we adopt all of the judge’s many addi-
tional unfair labor practice findings.
ously failed to order the Respondent’s president or direc-
tor to read aloud the Board’s notice to employees.
We have carefully considered all of the parties’ excep-
tions. In doing so we recognize that, as a rule, in apply-
ing the Board’s Wright Line3 analysis, “decision as to the
actual motive depends principally upon an evaluation of
a body of circumstantial evidence.” Reeves Distribution
Service, 223 NLRB 995, 998 (1976). The latter may
include a related violation committed by a respondent.
See Howard’s Sheet Metal, Inc., 333 NLRB 361 (2001)
(discriminatory discharge of one worker a factor to con-
sider in weighing whether the contemporaneous dis-
charge of a second coworker, who engaged at the same
time in the same prounion activity, was discriminatory).
Considering all the circumstances here, we reject the
Respondent’s exceptions to the judge’s findings of viola-
tions involving employees McKinney, Brumley, and
Kendall.4 However, we find merit in the Respondent’s
exception concerning the alleged constructive discharge
of employee Belcher. We also find merit in certain of
the General Counsel’s exceptions, as detailed below, but
we reject the Charging Party’s contention that the Re-
spondent’s owner or director should be required to read
aloud the Board’s notice to employees.
II. THE RESPONDENT’S EXCEPTIONS
A. The Discipline and Discharges of McKinney and
Brumley
Our analysis of the Respondent’s alleged unlawful dis-
cipline and discharge of McKinney and Brumley is gov-
erned by the test articulated by the Board in Wright Line,
supra. Under that test, a violation is established where
the General Counsel shows that an employer’s opposi-
tion to Section 7 activity was a substantial or motivating
factor in its decision to discipline an employee, unless
the employer proves, as an affirmative defense, that it
would have imposed the same discipline even in the ab-
sence of the employee’s union activity. To establish this
affirmative defense, “[a]n employer cannot simply pre-
sent a legitimate reason for 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 pro-
tected activity.” W. F. Bolin Co., 311 NLRB 1118, 1119
(1993), enfd. 99 F.3d 1139 (6th Cir. 1996).
1. Renee McKinney
The judge found that the Respondent violated Section
8(a)(3) and (1) by issuing McKinney two written disci-

3 Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
4 Several of the Respondent’s many unexcepted to violations directly
affected alleged discriminatees McKinney, Brumley, and Kendall.
YELLOW AMBULANCE SERVICE 805
plinary warnings and discharging her on February 23,
1999—1 day prior to the representation election. The
judge found that McKinney engaged in union activity,
that the Respondent was aware of McKinney’s union
activity, and that this union activity was a motivating
factor in the Respondent’s decision to discipline and dis-
charge her on February 23. In so finding, the judge re-
jected the Respondent’s claim that it disciplined McKin-
ney because she allegedly left work early on February 20
(at 12:20 p.m. instead of 1 p.m.) and failed to properly
notify Supervisor Bruce Nanney that paramedic Danny
Wilson had called off for the evening shift.6 The judge
further found that the Respondent failed to establish that
it would have imposed the same discipline on McKinney
even in the absence of her union activity. Consequently,
the judge found that her written warnings and discharge
violated Section 8(a)(3) and (1). We agree.
The Respondent contests the judge’s finding on three
grounds. It first argues that the judge’s finding is incon-
sistent with the claims by company witnesses that
McKinney left work early on February 20 and that she
lied about receiving permission from Supervisor Lisa
Byers to do so. This argument ignores the judge’s spe-
cific discrediting of the Respondent’s witnesses on each
of these points. Instead, the judge credited McKinney’s
testimony that she offered to work on February 20, only
until 12 or 1 p.m. and that Byers agreed to this arrange-
ment. As indicated earlier, we have found no basis for
overruling the judge’s credibility determinations.
The Respondent’s second argument is that the judge
erroneously failed to consider Director Dinwiddie’s
claim that McKinney lied to him on February 23 about
the reason she had to leave work early on February 20,7
and that this lie contributed to her discharge. In view of
the judge’s finding that McKinney did not leave work
early on February 20, the Respondent’s argument is re-
duced to a contention that McKinney lied about the rea-
son she offered to work only until 12 or 1 p.m. We find
no reversible error in the judge’s decision not to ex-
pressly consider this alleged lie.
The Respondent failed to establish that it discharged
McKinney for this alleged lie, much less that it actually
would have discharged her for this alleged lie even in the

6 The judge inadvertently stated that these alleged incidents occurred
on February 22. Supervisor Nanney and employee McKinney, how-
ever, both testified, and we find, that the events in question occurred on
February 20.
7 McKinney allegedly told Dinwiddie she had to leave work on Feb-
ruary 20 to pick up her children from their grandmother’s home. The
record, however, indicates that McKinney left work when she did be-
cause a coworker dropped McKinney’s children off at the Owensboro
facility. The judge did not determine whether McKinney actually lied
to Dinwiddie and we agree that it was unnecessary to do so.
absence of her union activity. On direct examination,
Dinwiddie testified specifically that he discharged
McKinney for the “two instances” on February 20: “[s]he
deserted her post and she didn’t provide for coverage
when a paramedic called off, didn’t notify a supervisor.”
Dinwiddie did later testify that he also considered the
“lie on her part.” That testimony, however, is unsup-
ported by the Respondent’s own documentation of the
reasons for McKinney’s discharge. On February 23,
Dinwiddie showed McKinney two written disciplinary
forms and an incident report, but none of these docu-
ments cited her alleged lie. Moreover, there is no evi-
dence that Dinwiddie mentioned this alleged lie when he
informed McKinney on February 23 of the reasons for
her discharge, even though Dinwiddie, by his own ac-
count, had already concluded in that meeting that she had
lied. In these circumstances, we find, in agreement with
the judge, that the Respondent discharged McKinney
because of her union activity, not her alleged lie to Din-
widdie.
We also find that the Respondent failed to establish
that it actually would have discharged McKinney in any
event for lying about the reason she could only work
until 12 or 1 p.m. As stated, Dinwiddie knew about
McKinney’s alleged lie prior to discharging her, but nei-
ther documented it nor mentioned it on February 23.
Moreover, the Respondent presented no evidence that it
had consistently discharged employees for similar of-
fenses. The evidence consists solely of the Respondent’s
after-the-fact, self-serving assertion that it would have
discharged McKinney for a reason that it knew about at
the time, but never mentioned. This is insufficient to
establish the Respondent’s affirmative defense.
Finally, the Respondent argues that the judge found
McKinney’s discharge unlawful based on the judge’s
view that it was too harsh, thus, improperly substituting
his own business judgment for that of the Respondent.
Once a discharge has been shown to be unlawfully moti-
vated, an employer must establish not merely that it
could have discharged the employee for legitimate rea-
sons, but also that it actually would have done so, even in
the absence of the employee’s protected activity. See,
e.g., Structural Component Industries, 304 NLRB 729,
730 (1991). Here, the judge commented that the Re-
spondent “could have legitimately imposed a lesser form
of discipline on McKinney for failing to effectively no-
tify Nanney of Wilson’s absence.” But this comment
does not establish that the judge found that the Respon-
dent would have discharged McKinney for the notice
infraction alone, much less that the judge nevertheless
found a violation simply because he disagreed with the
Respondent’s choice of discipline. First, the failure to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806
report, by itself, was never the asserted basis for McKin-
ney’s discharge. Rather, as the judge found, Dinwiddie
claimed that the discharge was based on both of the al-
leged February 20 incidents; he never claimed that the
notice infraction alone was grounds for discharge. Sec-
ond, the judge’s observation merely acknowledged that
the notice infraction amounted to misconduct. Under-
stood in this context, it does not demonstrate reliance on
a view as to what measure of discipline was proper, as
opposed to a determination of the Respondent’s actual
motive in discharging McKinney.
2. Roger Brumley
The judge found that the Respondent unlawfully dis-
charged Brumley on June 1. Applying Wright Line, su-
pra, we agree with the judge that Brumley’s prounion
activity was a motivating factor in the Respondent’s de-
cision to discharge him, and that the Respondent failed to
establish that it would have taken the same action even in
the absence of that union activity.
The Respondent claimed that it discharged Brumley
because he entered the dispatch office—a restricted
area—on May 30 without authorization and, also without
authorization, retrieved from an office computer his time
and mileage data for that day’s shift. The judge rejected
these claims. He found, based primarily on evidence of
the Respondent’s disparate treatment of Brumley, that
the Respondent’s real motivation for discharging Brum-
ley was his union activity. The judge also found that the
Respondent failed to establish that it would have dis-
charged Brumley in any event. This conclusion was
based largely on the judge’s finding that the “Respondent
was aware that nonauthorized employees routinely en-
tered the dispatch office and, with the exception of
Brumley, apparently didn’t discipline anyone for violat-
ing its rules.” We find no merit in the Respondent’s ex-
ceptions to these findings.
The Respondent argues that the judge erroneously
failed to consider evidence that the Respondent regarded
Brumley’s alleged offenses as serious and evidence that
supported the timing of Brumley’s discharge. On the
contrary, it is readily apparent that the judge considered,
but rejected, the Respondent’s argument that it viewed
Brumley’s actions to be serious offenses. Thus, the
judge found that the Respondent never informed em-
ployees that use of the dispatch computer to retrieve their
times and mileage was a serious offense. And he also
found that, notwithstanding the steps the Respondent
took to discourage unauthorized entry to the dispatch
office, “this rule was never, or almost never, enforced.”
Indeed, the judge found that employees were constantly
receiving a mixed message as, for example, Director Ja-
cobs’s November 25, 1998 memorandum telling em-
ployees they were permitted to “go into dispatch to get
their radio, keys, or other information needed.” That
memorandum was dated several months after Jacobs had
posted a “restricted” sign over the door of the dispatch
office. For these reasons, we disagree with the Respon-
dent’s contention that the judge improperly discounted
the seriousness of Brumley’s offenses.
In any event, the Respondent does not contest in its
brief the judge’s finding of disparate treatment, which we
adopt. The Respondent did not discipline Jerry Bradley
or Dispatcher Holly Hill, both of whom were in the dis-
patch office when Brumley entered, even though the Re-
spondent had just issued on March 14 a memorandum
warning its dispatchers that any unauthorized access to
the dispatch office “will result in disciplinary action [be-
ing] given to all employees involved.”8 As a result, even
if the judge underestimated the Respondent’s concern
over Brumley’s alleged offenses, we still would find that
Brumley’s union activity was a motivating factor in his
discharge and that the Respondent failed to establish that
it would have discharged Brumley even in the absence of
his union activity.
As to the timing of Brumley’s discharge, the Respon-
dent argues that the judge’s finding of a violation is in-
consistent with the fact that Brumley’s discharge oc-
curred immediately after his misconduct on May 30, and
more than 9 months after the Respondent learned of his
union activity. The timing of an employee’s discharge
relative to the employer’s becoming aware of his union
or protected activity is often a relevant factor, but it is not
dispositive. Cf. NLRB v. Main Street Terrace Care Cen-
ter, 218 F.3d 531, 542 (6th Cir. 2000) (evidence that em-
ployer had learned of employee’s protected activity
months prior to her discharge did not undercut Board’s
finding that employee ultimately was fired for unlawful
reasons); NLRB v. Vanguard Tours, Inc., 981 F.2d 62, 66
(2d Cir. 1992) (employer’s past indifference to union
activity did not preclude a finding that it discriminated
against an employee on a particular occasion). We find
in the instant case that the arguably “innocent” timing of
Brumley’s discharge is more than outweighed by the
Respondent’s obvious disparate treatment of Brumley.
For these reasons, we find no merit in the Respon-
dent’s exceptions to the judge’s finding that it unlawfully
discharged Brumley.

8 Also, Director Dinwiddie testified that he had repeatedly warned
his supervisors and dispatchers that, in the event an unauthorized per-
son used the computer, “they could be subject to disciplinary action as
well.”
YELLOW AMBULANCE SERVICE 807
B. Brian Kendall
The judge found that the Respondent violated Section
8(a)(3) and (1) by constructively discharging Kendall on
about April 5, by unlawfully switching one of his 8-hour
day shifts to an 8-hour overnight shift, and by refusing to
rehire him in May. We affirm these findings.
1. The constructive discharge
Prior to March 14, Kendall had worked only day shifts
for nearly a year. Beginning with the 3-week schedule
commencing March 14, Dinwiddie scheduled Kendall to
work one 8-hour overnight shift each week. Kendall
immediately asked Dinwiddie to restore his prior sched-
ule. Kendall specifically informed Dinwiddie that he
could not work nights due to his childcare responsibili-
ties. Dinwiddie denied Kendall’s request, but advised
Kendall that he could trade the overnight shifts with
other employees. On the 3-week schedule commencing
April 4, Dinwiddie again scheduled Kendall to work an
8-hour overnight shift each week. As a result, on April
5, Kendall resigned his full-time position, effective April
9.
The judge properly analyzed these facts under the
Board’s two-prong test, set forth in Crystal Princeton
Refining, to determine whether an unlawful constructive
discharge occurred:
First, the burdens imposed upon the employee must
cause, and be intended to cause, a change in his work-
ing conditions so difficult or unpleasant as to force him
to resign. Second, it must be shown that those burdens
were imposed because of the employee’s union activi-
ties.
222 NLRB 1068, 1069 (1976), cited with approval in Penn-
sylvania State Police v. Suders, 542 U.S. 129 (2004); see
also Loudon Steel, Inc., 340 NLRB 306 (2003). Under the
first prong, the “test for intent is not limited to whether the
employer specifically intended to cause the employee to
quit, but includes whether, under the circumstances, the
employer reasonably should have foreseen that its actions
would have that result.” American Licorice Co., 299 NLRB
145, 148 (1990). The second prong recognizes that a con-
structive discharge violates Section 8(a)(3) and (1) only if it
is implemented because of an employee’s union activity.
Applying this test, the judge found that the Respondent con-
structively discharged Kendall because of his union activity.
We agree, for the reasons given by the judge.
The Respondent’s exceptions, many of which our dis-
senting colleague endorses, lack merit. The Respondent
first argues there never was a change in Kendall’s “work-
ing conditions” because his job duties remained the
same. As the Respondent acknowledges, however, Din-
widdie reassigned Kendall from an 8-hour day shift,
which he had been working for almost a year, to an 8-
hour overnight shift, beginning March 14. This consti-
tuted a change in Kendall’s “wages, hours, and other
terms” of employment (Sec. 8(d) of the Act) sufficient to
support the judge’s finding. See American Licorice, su-
pra, 299 NLRB at 148 (finding an unlawful constructive
discharge where the employer assigned an employee to a
different shift, even though the employee’s duties re-
mained the same); see also Grand Canyon Mining Co.,
318 NLRB 748, 760 (1995), enfd. 116 F.3d 1039 (4th
Cir. 1997).
The Respondent next argues that, although it changed
one of Kendall’s day shifts to an overnight shift, this
“minor scheduling difference” was too insignificant to
support a finding of a constructive discharge. However,
the Board has recognized that requiring an employee to
choose between working and caring for his children is
sufficiently burdensome to support a finding of a con-
structive discharge. See, e.g., American Licorice, supra
at 145 (constructive discharge found where employer
denied employee’s request to transfer to a night shift so
she could care for her children during the day); see also,
e.g., Bennett Packaging Co., 285 NLRB 602, 603, 607
(1987) (constructive discharge found where employer
directed employee to report one hour earlier for work,
knowing that employee could not because of childcare
requirements).
The Respondent nevertheless insists that the burden
imposed on Kendall was not significant because Dinwid-
die permitted Kendall to attempt to find other employees
to cover his overnight shifts. We reject this argument.
As the Charging Party points out, Dinwiddie’s offer was
a hollow gesture, because, not surprisingly, it was diffi-
cult to find another employee to work the overnight shift.
Thus, although Kendall was able to trade shifts for a few
weeks, his efforts became ineffective by April 5—the
date he resigned his full-time position. In these circum-
stances, we reject the Respondent’s argument that the
burden imposed on Kendall was a minimal one.9
Last, we reject the Respondent’s argument that the
judge erred in finding that Dinwiddie intended to cause
Kendall’s resignation. As the judge found, the record
shows that Dinwiddie knew, or reasonably should have
known, that assigning Kendall to an overnight shift
would render him unable to continue working as a full-
time employee. Most important, when Dinwiddie posted

9 We also are not persuaded by the Respondent’s attempt to shift the
blame to Kendall by suggesting that he “simply did not want to expend
the effort to trade the night shifts with other employees.” Given the
undesirability of the overnight shift, we find that Dinwiddie knew or
should have known that Kendall would inevitably be unable to consis-
tently trade away the shift.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 808
the March 14 schedule, Kendall specifically asked Din-
widdie to relieve him of the overnight shift because it
conflicted with his childcare responsibilities.10 Dinwid-
die not only refused to alter the schedule but, on the next
3-week schedule beginning April 4, again assigned
Kendall to an overnight shift. In light of the judge’s now
unexcepted to finding that Kendall’s March 14 assign-
ment to an overnight shift was unlawful, and the Re-
spondent’s failure to offer any persuasive reason why it
denied his request to return to the day shift, we see no
reason to upset the judge’s finding that Dinwiddie in-
tended to cause Kendall’s resignation.
As a final matter, it appears that the Respondent has
not specifically excepted to the judge’s finding, under the
second prong of the Crystal Princeton Refining test, that
Dinwiddie imposed the shift changes on Kendall because
of his union activity. In any event, we affirm the judge’s
finding. Kendall was an open union supporter. As de-
scribed, the record amply demonstrates both Dinwiddie’s
hostility to union activity generally and his propensity to
act on that hostility to the disadvantage of employees,
including Kendall, who engaged in such activity. In-
deed, the Respondent has not excepted to the judge’s
findings that it violated the Act by constructively dis-
charging both employees Cynthia Payne and Norman
Byers as a result of knowingly scheduling them for shifts
that conflicted with their childcare responsibilities.
For these reasons, we disagree with our dissenting col-
league, and we affirm the judge’s finding that the Re-
spondent constructively discharged Kendall because of
his union activity, in violation of Section 8(a)(3) and (1).
2. The Respondent’s refusal to rehire Kendall
As described above, Kendall resigned his full-time po-
sition after Dinwiddie again scheduled him to work
overnight shifts. Thus, on April 5, Kendall advised Din-
widdie in writing that his last day would be April 9.
Kendall worked several weeks for another employer, but,
after being laid off by that employer in May, Kendall
asked the Respondent to rehire him as a full-time em-
ployee. Human Resources Manager McDaniel advised
Kendall to complete an application, and he did so. Kend-
all then arranged an interview with Dinwiddie, but Din-
widdie cancelled the interview and did not reschedule it.
The Respondent did not respond to Kendall’s application
thereafter.
We agree with the judge’s finding that Dinwiddie re-
fused to rehire Kendall because of his union activity, in

10 Unlike our dissenting colleague, we do not believe Kendall was
required to expressly advise Dinwiddie that he, Kendall, would be
forced to resign because of the schedule change. In any event, Kend-
all’s informing Dinwiddie of his conflicting childcare responsibilities
provides the functional equivalent of such notice.
violation of Section 8(a)(3) and (1).11 The Respondent
claims that it deemed Kendall ineligible to be rehired
because he failed to give 2 weeks’ notice prior to resign-
ing his full-time position. The judge, however, specifi-
cally discredited the Respondent’s claim that it had such
a policy and that Dinwiddie informed Kendall on April 5
that he would be ineligible for rehire because he was not
giving 2 weeks’ notice. The judge instead found, and we
agree, that the Respondent’s assertion of this alleged
policy was a pretext for discrimination.12
As the judge pointed out, the only documentation of
such a policy was a “Conduct and Ability” form Dinwid-
die created a week after Kendall’s last day of work.
Moreover, as the judge explained, the record shows that
the Respondent did not apply this alleged policy to em-
ployee Michael Obenhausen, who quit without giving 2
weeks’ notice. For these reasons, as well as those given
by the judge, we find that the Respondent refused to re-
hire Kendall because of his union activity, not because of
his alleged failure to give 2 weeks’ notice.
C. The Respondent’s Alleged Constructive Discharge
of Vicky Belcher
The judge found that the Respondent constructively
discharged employee Vicky Belcher in violation of Sec-
tion 8(a)(3) and (1) by varying her work schedule after
May 15, when she returned from maternity leave. The
Respondent contests the judge’s finding, arguing, among
other things, that there was not a constructive discharge
because Belcher at all times remained a part-time em-
ployee of the Respondent. We agree.
Prior to taking leave, Belcher had worked two 16-hour
day shifts per week, with 2 days between the shifts.
When Belcher returned to work, the Respondent contin-
ued to schedule her for 2 16-hour day shifts per week,
but varied the number of days between the shifts.
Belcher complained to the Respondent that she needed
her prior schedule because of her childcare responsibili-
ties. The Respondent refused to return Belcher to her
prior schedule, but offered her a full-time position.
Belcher declined the position because the Respondent
could not guarantee her a regular schedule. Thereafter,
the Respondent and Belcher agreed that Belcher would
submit days she could work and that the Respondent
would call her as needed. The Respondent actually of-
fered her such shifts on an almost daily basis, including
days Belcher said she would be available to work.

11 Although this violation was not specifically alleged in the com-
plaint, we agree with the judge that it was closely related to Kendall’s
constructive discharge and was fully litigated.
12 As a result, we find it unnecessary to pass on the Charging Party’s
contention that Kendall actually informed Dinwiddie of his intent to
resign some 2-1/2 weeks prior to April 9.
YELLOW AMBULANCE SERVICE 809
Belcher, however, never accepted any of the offered
shifts.
Based on the record before us, we find insufficient
evidence that Belcher resigned her employment with the
Respondent. Under the Crystal Princeton Refining test,
supra, for alleged constructive discharges, “the burdens
imposed upon the employee must cause, and be intended
to cause, a change in his working conditions so difficult
or unpleasant as to force him to resign.” Although there
clearly was a scheduling dispute between the Respondent
and Belcher after her maternity leave, there is no evi-
dence that Belcher resigned her employment. To the
contrary, as the Respondent points out, Belcher contin-
ued to offer to work part-time shifts for the Respondent,
and the Respondent offered her such shifts on an almost
daily basis.
Belcher never worked any of the shifts offered by the
Respondent, but it appears to have been related to her
taking another job in the emergency room of a local hos-
pital, and not to her childcare responsibilities. Belcher
herself testified that the reason she declined many of the
shifts offered by the Respondent was that “I’m already
obligated to [the] ER, I cannot just come in at the drop of
a hat.” Even when the Respondent called Belcher on the
specific days she said she would be available, Belcher
only “offered to come in and work half a shift because
I’m already obligated to the emergency room.”
In these circumstances, we find that the General Coun-
sel failed to establish that Belcher resigned her employ-
ment with the Respondent. Accordingly, we dismiss the
allegation that she was constructively discharged.13
III. THE GENERAL COUNSEL’S EXCEPTIONS
The General Counsel’s exceptions 1 through 30 cover
a variety of alleged violations of Section 8(a)(1), (3), and

13 Member Liebman finds it unnecessary to pass on the alleged con-
structive discharge because she would find that the Respondent violated
the Act by altering Belcher’s regular schedule in approximately May
1999 from her usual 1-day-on/2-days-off work pattern, and that this
violation warrants make-whole relief. Belcher expressly asked Din-
widdie to restore her regular schedule because the unpredictability
made it impossible for her to arrange childcare. Dinwiddie refused, but
offered Belcher a full-time position. Belcher declined the offer solely
because Dinwiddie insisted that he could not provide her with a regular
full-time schedule; he declared that Belcher’s schedule would be
“whatever he deemed necessary.” However, as the judge found, Din-
widdie contemporaneously offered employee James Dukes, who was
not a union supporter, a regular full-time schedule to induce him to go
from a part-time to a full-time position. Moreover, Dukes’s new full-
time schedule was substantially identical to his prior part-time sched-
ule. In light of these facts, the judge specifically found that the Re-
spondent discriminated against Belcher by failing to offer Belcher full-
time employment on terms comparable to Dukes (a regular schedule
similar to her part-time schedule) because of Belcher’s support for the
Union. Member Liebman would adopt the judge’s finding and order
make-whole relief from the date of Dinwiddie’s offer to Belcher.
(5) dismissed by the judge. Exceptions 31 through 44
cover remedial and notice issues. We find it unnecessary
to reach many of these exceptions.14 We find merit in
other exceptions.15
A. The 8(a)(1) Dismissals
The General Counsel contends in exception 17 that the
judge erroneously dismissed an allegation that in early
June 1999 Human Resources Manager Debbie McDaniel
violated Section 8(a)(1) when she threatened to send em-
ployee Amy Brumley home if she did not sign a workers’
compensation waiver form. The judge found that this
alleged violation was duplicative of his finding (now
uncontested) that Director Dinwiddie violated Section
8(a)(3) and (1) by refusing to allow Brumley to work
from June 2–9, 1999, because she had not signed the
waiver form. We agree with the judge that McDaniel’s
alleged threat to send Brumley home for failing to sign
the waiver form was essentially part of Dinwiddie’s
unlawful suspension of Brumley for the same reason.
Additionally, given the numerous uncontested violations,
we find that the alleged violation, even if found, would
not materially affect the remedy. We will not disturb the
judge’s conclusions in this regard.16

14 We find it unnecessary to address GC exceptions 1 through 16 and
exceptions 31 through 44. The General Counsel argues in exceptions 1
through 16 that the judge erroneously dismissed allegations that various
managers and supervisors made unlawful solicitations, promises of
benefits, threats of discharge, threats of wage reductions and other
losses of benefits, and engaged in unlawful surveillance. Even if found,
these alleged violations would be cumulative of the Respondent’s many
uncontested violations covering the same types of misconduct, and
would not materially affect the remedy. In exceptions 31 through 44,
the General Counsel argues that the judge erroneously omitted appro-
priate remedial and notice provisions. We find it unnecessary to spe-
cifically address these exceptions beyond observing that we have in-
cluded in the Order and Notice the appropriate provisions, consistent
with the violations found in this proceeding.
15 The General Counsel correctly points out in exceptions 26 and 27
that the judge inadvertently failed to provide make-whole relief to
employee Amy Brumley based on her unlawful suspension from June
2–9, and to employees who were unlawfully required to pay $50 for the
Transitional Training Course. We shall provide the necessary relief.
The General Counsel also points out in exception 28 that the judge, in
finding that Director Jacobs unlawfully threatened employees Tyra Kay
Phillips and Norman Byers, inadvertently cited complaint par. 6(i)
instead of par. 5(i). In exception 30, the General Counsel observes that
the judge inadvertently dismissed complaint par. 6(qq), concerning the
unlawful discharge of employee Cynthia Payne. We correct these
inadvertent errors.
16 Member Liebman agrees with the General Counsel that Director
Dinwiddie’s unlawful refusal to allow Brumley to work from June 2–9,
1999, and Human Resources Manager McDaniel’s unlawful threat to
send Brumley home if she did not sign a workers’ compensation waiver
form constitute distinct unfair labor practices. Accordingly, Member
Liebman would find that McDaniel’s threat independently violated Sec.
8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 810
B. The 8(a)(3) and (1) Dismissals
The General Counsel contends in exception 18 that the
judge erroneously dismissed an allegation that the Re-
spondent violated Section 8(a)(3) and (1) by discharging
employee Nancy Baker because of her support for the
Union. The judge’s dismissal of this allegation was based
on his finding that the Respondent did not discharge
Baker. The judge specifically discredited Baker’s claim
that on March 12, Director Dinwiddie told her, “you don’t
work here any longer.” As the judge explained, his find-
ing of no discharge was further supported by Baker’s own
testimony that Supervisor Marietta Coakley called her on
March 14,17 and informed Baker that the Respondent was
expecting her at work that evening. Given the judge’s
credibility determination, we find no merit in the General
Counsel’s exception.
In exception 19, the General Counsel argues that the
judge erroneously dismissed an allegation that the Re-
spondent violated Section 8(a)(3) and (1) by requiring a
new employment application from union supporters de-
siring to switch from full-time to part-time status. The
judge found that this alleged violation was de minimis,
because the General Counsel failed to show how com-
pleting a new application adversely affected employees
in any material way. We agree. Even assuming that the
Respondent’s action was unlawfully motivated, a Board
remedy for de minimis misconduct is unwarranted.
Similarly, the General Counsel’s failure to explain how
or why the Respondent’s application requirement ad-
versely affected employees undermines the General
Counsel’s contention in exception 25 that this change
violated Section 8(a)(5) and (1) as well. As a result, we
find no merit in the exception. See Advertiser’s Mfg.
Co., 280 NLRB 1185, 1193–1194 (1986), enfd. 823 F.2d
1086 (7th Cir. 1987) (finding that, even if employer’s
discriminatory change in employee’s parking space vio-
lated Section 8(a)(3), the change did not violate Section
8(a)(5)).18

17 The judge inadvertently stated that this telephone call occurred on
May 14.
18 Because the judge found no reliable evidence to support the Re-
spondent’s claim of a preexisting policy applicable to all employees,
Member Liebman would find that the Respondent’s sudden imposition
of the new-application requirement on union supporters, including
employees Cynthia Payne and Brian Kendall, was unlawful. As to the
necessity of a Board remedy, it is settled that whether an employer’s
discriminatory conduct warrants Board action should be determined in
light of the employer’s conduct overall. See Xidex Corp., 297 NLRB
110, 111 (1989), enfd. 924 F.2d 245 (D.C. Cir. 1991); Advertiser’s
Mfg. Co., 280 NLRB at 1193.. Applying that standard, it is clear that
the Respondent’s action was part of a pattern of harassment of union
supporters and, in that context, rises to the level of an 8(a)(3) and (1)
violation requiring a Board remedy. For similar reasons, Member
Liebman would find merit in the General Counsel’s contention in ex-
In exception 29, the General Counsel argues that the
judge erred in finding it unnecessary to decide whether
Director Dinwiddie’s denial of part-time status to em-
ployee Norman Byers violated Section 8(a)(3) and (1).
We agree with the judge. Prior to February 21, Byers
worked full time on the day shift. Beginning on Febru-
ary 21, however, the Respondent scheduled Byers to
work the night shift, from 11 p.m. to 7 a.m. Byers asked
to return to the day shift in mid-March, but the Respon-
dent refused his request. As a consequence of that re-
fusal, Byers asked to work part time. We have adopted
the judge’s finding that the Respondent constructively
discharged Byers in violation of Section 8(a)(3) and (1)
by refusing his request to return to the day shift.19 As a
result, as the judge did, we find it unnecessary to decide
whether the Respondent’s denial of part-time status to
Byers was unlawful. It is clear that Byers only requested
part-time status because the Respondent prevented him
from returning to his full-time position on the day shift.
The remedy we provide today requires the Respondent to
offer Byers reinstatement to that position, thereby render-
ing the part-time issue moot.
C. The 8(a)(5) and (1) Dismissals
The Respondent does not except to the judge’s finding
that it violated Section 8(a)(3) and (1) by failing to con-
duct promised annual evaluations (and to grant appropri-
ate wage increases based on them), by implementing a
new requirement that all employees sign a clothing-
reimbursement form, and by instituting a new $50 fee for
an EMT training course. The complaint alleges in each
instance that the Respondent’s actions—undertaken
without notice to or bargaining with the Union—violated
Section 8(a)(5) and (1) as well. The judge found it un-
necessary to decide the 8(a)(5) allegations and, in excep-
tions 20, 21, and 22, the General Counsel argues that this
was error. We agree with the judge because finding the
additional violations would not materially affect the rem-
edy.20
Finally, the General Counsel contends in exceptions 23
and 24 that the judge erroneously failed to find 8(a)(5)
violations based on the Respondent’s changes in em-
ployees’ shifts, its assignment of employees Phillips and

ception 25 that the Respondent’s unilateral imposition of this require-
ment also violated Sec. 8(a)(5) and (1).
19 The Respondent has not excepted to this finding.
20 Member Liebman would find that the Respondent’s unilateral ac-
tion in each instance violated Sec. 8(a)(5) and (1). See, e.g., Joy Re-
covery Technology Corp., 320 NLRB 356 (1995), enfd. 134 F.3d 1307
(7th Cir. 1998) (finding that employer’s unilateral closing of transporta-
tion department and outsourcing of unit work violated both Sec. 8(a)(3)
and (5)); Thill, Inc., 298 NLRB 669 (1990), enfd. in part 980 F.2d 1137
(7th Cir. 1992) (finding that employer’s unilateral refusal to restore
earlier pay cut to employees violated both Sec. 8(a)(3) and (5)).
YELLOW AMBULANCE SERVICE 811
Amy Brumley to nine consecutive night shifts, and its
assignment of employee Dennis Wade to wax an ambu-
lance. We find no merit in these exceptions. With re-
spect to the shift changes and assignments, the judge
specifically found “no evidence that anything such as a
permanent shift or partner assignment existed at any
time.” As a result, the shift changes and assignments
complained of did not constitute a change in any existing
term or condition of employment. Similarly, the record
shows that prior to the February 24 representation elec-
tion the Respondent had occasionally assigned employ-
ees to wax ambulances. For these reasons, we agree with
the judge that the Respondent’s actions did not violate
Section 8(a)(5) and (1).
IV. THE CHARGING PARTY’S EXCEPTION
The Charging Party has excepted to the judge’s failure
to recommend in his remedy that the Board require LTC
President Mackin or Director Dinwiddie to read aloud
the attached notice to employees assembled for that pur-
pose.21 Section 10(c) authorizes the Board to remedy
unfair labor practices by ordering “such affirmative ac-
tion . . . as will effectuate the policies of [the] Act.” It is
settled that this power to prescribe effective remedies is
“a broad discretionary one, subject to limited judicial
review.” Fibreboard Paper Products Corp. v. NLRB,
379 U.S. 203, 216 (1964); Domsey Trading Corp., 310
NLRB 777, 779 (1993), enfd. 16 F.3d 517 (2d Cir.
1994). In the particular circumstances of this case, we
find that the Charging Party’s requested relief is unnec-
essary to remedy the violations.22
ORDER
The National Labor Relations Board orders that Yel-
low Enterprise Systems, Inc. d/b/a Yellow Ambulance
Service, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or threatening to discharge employees
because they support the Professional EMTs & Paramed-
ics or any other union.

21 The Charging Party acknowledges that it did not seek this remedy
before the judge. The Charging Party correctly argues, however, that
“the Board’s power to remedy unfair labor practices is not limited by
the parties’ failure to request or oppose any specific remedy.” Nabco
Corp., 266 NLRB 687 fn. 1 (1983).
22 Member Liebman would grant the Charging Party’s request that
the Board require Director David Dinwiddie to read aloud the attached
Notice to employees assembled for that purpose. Dinwiddie was per-
sonally involved in, and primarily responsible for, many of the Respon-
dent’s unfair labor practices. In these circumstances, she finds that
Dinwiddie’s reading of the notice, or at least his presence while it is
read, is appropriate and necessary to dispel the atmosphere of intimida-
tion he personally created. See Three Sisters Sportswear Co., 312
NLRB 853 (1993), enfd. 55 F.3d 684 (D.C. Cir. 1995), cert. denied 516
U.S. 1093 (1996).
(b) Disciplining, warning, or threatening employees
with discipline or other reprisals because they support the
Professional EMTs & Paramedics, or any other union.
(c) Threatening or suggesting to employees that select-
ing Professional EMTs & Paramedics, or any other union
as their bargaining representative is futile.
(d) Directing employees to remove Professional EMTs
& Paramedics or any other union stickers from their per-
sonal vehicles.
(e) Directing employees not to discuss union related
matters during working hours while permitting the dis-
cussion of other matters.
(f) Coercively interrogating employees about their
support for or membership in Professional EMTs &
Paramedics, or any other union.
(g) Soliciting grievances from employees and impli-
edly promising to remedy them if employees abandon
their support for the Professional EMTs & Paramedics,
or any other union.
(h) Telling employees that other employees had been
discharged because they supported the Professional
EMTs & Paramedics, or any other union.
(i) Engaging in surveillance of employees’ union ac-
tivities or creating the impression of surveillance of their
union activities.
(j) Reassigning employees or changing employees
schedules because they support the Professional EMTs &
Paramedics, or any other union.
(k) Taking unilateral action on employees’ dress
codes, or other mandatory subjects of bargaining, with-
out giving the Professional EMTs & Paramedics prior
notice and an opportunity to bargain with respect to these
subjects.
(l) Charging employees to attend the Transitional
Training Course because they support the Professional
EMTs & Paramedics, or any other union.
(m) Failing and refusing to rehire employees because
they support the Professional EMTs & Paramedics, or
any other union.
(n) Failing and refusing to issue evaluations of em-
ployees and, where appropriate, issue wage increases to
employees because they support the Professional EMTs
& Paramedics, or any other union.
(o) Requiring employees to sign a clothing reimburse-
ment form because they support the Professional EMTs
& Paramedics, or any other union.
(p) Imposing more onerous work assignments on em-
ployees because they support the Professional EMTs &
Paramedics, or any other union.
(q) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 812
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
the following employees full reinstatement to their for-
mer jobs or, if a job no longer exists, to a substantially
equivalent position, without prejudice to their seniority
or any other rights or privileges previously enjoyed.

Chris Embry, Renee McKinney, Richard Turner, Nor-
man Byers, James Hardin, Brian Kendall, Cynthia
Payne, and Roger Brumley

(b) Make the following employees whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the judge’s decision: Chris Embry,
Renee McKinney, Richard Turner, Norman Byers, James
Hardin, Brian Kendall, Cynthia Payne, Roger Brumley,
Kimberly Childers, and Amy Brumley.
(c) Make whole all employees who paid $50 to attend
the Transitional Training Course, with interest.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful disciplinary
actions taken against the following employees and,
within 3 days thereafter, inform them in writing that this
has been done, and that the disciplinary actions will not
be used against them in any way:

Chris Embry, Renee McKinney, Richard Turner, Nor-
man Byers, James Hardin, Brian Kendall, Cynthia
Payne, Roger Brumley, Kimberly Childers, Amy
Brumley, Jeffrey James, Tyra Kay Phillips, and Darrell
Lancaster;

(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of the records it stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its office on Alsop Lane in Owensboro, Kentucky, copies
of the attached notice marked “Appendix B.”23 Copies of
the notice, on forms provided by the Regional Director
for Region 25, after being signed by the Respondent’s

23 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
authorized representative, shall be posted by the Respon-
dent immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since November 17, 1998.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
(h) IT IS FURTHER ordered that the complaint is dis-
missed to the extent it alleges violations of the Act not
found.

MEMBER SCHAUMBER, dissenting in part.
Unlike my colleagues, I find that the Respondent did
not violate Section 8(a)(3) and (1) by constructively dis-
charging Brian Kendall. As my colleagues note, the
Board stated in Crystal Princeton Refining Co., 222
NLRB 1068, 1069 (1976), that two elements must be
proven to establish a constructive discharge:
First, the burdens imposed upon the employee must
cause, and be intended to cause, a change in his work-
ing conditions so difficult or unpleasant as to force him
to resign. Second, it must be shown that those burdens
were imposed because of the employee’s union activi-
ties.
Even assuming arguendo that Kendall’s schedule was
changed because of his union activities, the General Coun-
sel has failed to satisfy the first Crystal Princeton criterion.
Far from creating an extraordinarily difficult or un-
pleasant change in Kendall’s working conditions, the
schedule adjustment resulted in his performing the same
work, on the same days of the week, for the same num-
ber of hours per week, with the same benefits. Thus,
both before and after the schedule change, Kendall
worked as an emergency medical technician (EMT) 3
days a week on a full-time schedule with full-time em-
ployee benefits. Both before and after the schedule
change, Kendall worked 16 hours on Monday, 8 hours on
Wednesday, and 16 hours on Friday.
It is true that, after the schedule adjustment, Kendall’s
Wednesday shift, which had been a day shift, became a
YELLOW AMBULANCE SERVICE 813
night shift. This fact, however, is insufficient to establish
a violation.
My colleagues’ finding of a violation here rests, at bot-
tom, on their conclusion that Supervisor Dinwiddie knew
or should have known that the schedule change would
render Kendall unable to continue working as a full-time
employee. In my view, however, the General Counsel
has not met his burden as to this issue. Thus, there is no
evidence that Kendall told Dinwiddie that he would have
to quit because of the change. As to whether Dinwiddie
reasonably should have known that the change would
render Kendall’s quitting inevitable, Dinwiddie’s will-
ingness to allow Kendall to trade shifts with other em-
ployees (and, indeed, Kendall’s initial success in doing
so) points in the opposite direction. Dinwiddie appar-
ently cared only that someone cover the Wednesday
night shift, not that Kendall do so. Nor do I share my
colleagues’ unsupported assumption that the night shift
was undesirable and that Dinwiddie therefore knew that
Kendall would be unable to continue trading shifts. It
would be equally reasonable to suppose that for some
employees a night shift might be desirable, depending on
specific circumstances unique to each individual em-
ployee.
Kendall continued to trade his night-shift schedule un-
til he voluntarily left the Respondent’s employ, without
giving notice, to take another job. Indeed, he later made
considerable efforts to return to the Respondent’s em-
ploy, further suggesting that he had not found his previ-
ous experience as an employee of the Respondent unusu-
ally difficult or unpleasant. For all of these reasons, I
would dismiss this allegation.

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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or threaten to discharge em-
ployees because they support the Professional EMTs &
Paramedics, or any other union.
WE WILL NOT discipline, warn, or threaten employees
with discipline or other reprisals because they support the
Professional EMTs & Paramedics, or any other union.
WE WILL NOT threaten or suggest to employees that se-
lecting Professional EMTs & Paramedics, or any other
union as their bargaining representative is futile.
WE WILL NOT direct employees to remove Professional
EMTs & Paramedics or any other union stickers from
their personal vehicles.
WE WILL NOT direct employees not to discuss union re-
lated matters during working hours while permitting the
discussion of other matters.
WE WILL NOT coercively interrogate employees about
their support for or membership in Professional EMTs &
Paramedics, or any other union.
WE WILL NOT solicit grievances from employees and
impliedly promise to remedy them if employees abandon
their support for the Professional EMTs & Paramedics,
or any other union.
WE WILL NOT tell employees that other employees had
been discharged because they supported the Professional
EMTs & Paramedics or any other union.
WE WILL NOT engage in surveillance of employees’
union activities or create the impression of surveillance
of their union activities.
WE WILL NOT reassign employees or change employ-
ees’ schedules because they support the Professional
EMTs & Paramedics, or any other union.
WE WILL NOT take unilateral action on employees’
dress codes, or other mandatory subjects of bargaining,
without giving the Professional EMTs & Paramedics
prior notice and an opportunity to bargain with respect to
these subjects.
WE WILL NOT charge employees to attend the Transi-
tional Training Course because they support the Profes-
sional EMTs & Paramedics, or any other union.
WE WILL NOT fail and refuse to rehire employees be-
cause they support the Professional EMTs & Paramedics,
or any other union.
WE WILL NOT fail and refuse to issue evaluations of
employees and, where appropriate, issue wage increases
to employees because they support the Professional
EMTs & Paramedics, or any other union.
WE WILL NOT require employees to sign a clothing re-
imbursement form because they support the Professional
EMTs & Paramedics, or any other union.
WE WILL NOT impose more onerous work assignments
on employees because they support the Professional
EMTs & Paramedics, or any other union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 814
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL within 14 days from the date of this Order,
offer the following employees full reinstatement to their
former jobs or, if a job no longer exists, to a substantially
equivalent position, without prejudice to their seniority
or any other rights or privileges previously enjoyed:
Chris Embry, Renee McKinney, Richard Turner, Nor-
man Byers, James Hardin, Brian Kendall, Cynthia Payne,
and Roger Brumley.
WE WILL make the following employees whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, with interest:
Chris Embry, Renee McKinney, Richard Turner, Nor-
man Byers, James Hardin, Brian Kendall, Cynthia
Payne, Roger Brumley, Kimberly Childers, and Amy
Brumley
WE WILL make whole, with interest, all employees
who paid $50 to attend the transitional training course;
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
ciplinary actions taken against the following employees
and, within 3 days thereafter, inform them in writing that
this has been done, and that the disciplinary actions will
not be used against them in any way:
Chris Embry, Renee McKinney, Richard Turner, Nor-
man Byers, James Hardin, Brian Kendall, Cynthia
Payne, Roger Brumley, Kimberly Childers, Amy
Brumley, Jeffrey James, Tyra Kay Phillips, and Darrell
Lancaster.
YELLOW ENTERPRISE SYSTEMS, INC. D/B/A
YELLOW AMBULANCE SERVICE
Walter Steele and Belinda Brown, Esqs., for the General Coun-
sel.
James U. Smith, III and Bryan M. Cassis, Esqs. (Smith &
Smith), of Louisville, Kentucky, for the Respondent.
Anita O’Neil, Esq. (Blake & Uhlig, P.A.), of Kansas City, Kan-
sas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Owensboro, Kentucky, on October 4–8, 12–14, and
November 1–3, 1999. The original charges were filed between
March 26 and June 4, 1999. The last amended charge was filed
on August 30, 1999. On September 14, 1999, the General
Counsel issued his amended consolidated complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with headquarters in Louisville,
Kentucky, operates the ambulance service for Owensboro and
Daviess County, Kentucky, from its facility on Alsop Lane in
Owensboro. It annually purchases and receives goods and
materials valued in excess of $50,000 directly from points lo-
cated outside the Commonwealth of Kentucky. Respondent
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Chronological overview
Yellow Enterprise Systems is one of two divisions of Louis-
ville Transportation Company. The other division is the Yel-
low Cab Company. Jeff Mackin is the president of Louisville
Transportation and Paul Powell Jr., is the executive vice-
president. Sherman Hockenberry is the executive director and
vice president of Yellow Enterprise Systems for Health Ser-
vices. In that capacity he reports directly to Powell and is re-
sponsible for the operations of a number of subsidiaries in Indi-
ana and Kentucky, including Yellow Ambulance of Daviess
County, Kentucky.
Prior to August 1997, two ambulance services operated in
Daviess County, pursuant to certificates of need issued by the
Commonwealth. In August 1997, Yellow Enterprises pur-
chased one of these services, Arrow Ambulance Company and
its certificate of need from its owner, Russ Walkosak. Walko-
sak thereupon became the director of Yellow Ambulance of
Daviess County and most or all of his employees became em-
ployees of Respondent.
In February 1998, Yellow was awarded a contract to operate
the other ambulance service in Daviess County, pursuant to the
certificate of need owned by the city of Owensboro and Davi-
ess County. Previously, this ambulance service was adminis-
tered directly by the Owensboro Hospital. The paramedics and
emergency medical technicians (EMTs), who were formerly
employed by the hospital, thereupon became Yellow employees
as well. Upon the acquisition of the Owensboro Hospital am-
bulance service, Anthony Gardner became the director of Yel-
low Ambulance of Daviess County and Walkosak became as-
sistant director.
Gardner stayed in Owensboro for a very short time due to a
family emergency and was replaced as director in March 1998
by Daniel Jacobs, who previously had been a shift supervisor in
Respondent’s Clark County, Indiana operation. In December
1998, Jacobs was relieved of this position. Sherman Hocken-
berry acted as director in Owensboro for a period of weeks until
January 6, 1999, when David Dinwiddie was hired from an
unassociated ambulance service to be director.
Union Organizing Activity
Although the origins of the initial union activity are not
clear, some Yellow employees, including paramedics Kay Phil-
lips and Terry Dossett received literature in the mail from the
YELLOW AMBULANCE SERVICE 815
Union in April 1998. Phillips signed an authorization card and
shortly thereafter approached Bruce Nanney, to encourage him
to join the Union. Dossett had been a supervisor for ambulance
crews at Owensboro Hospital. In June or July 1998, he became
a street supervisor for Yellow. Nanney is Respondent’s senior
street supervisor. He has been a supervisor since November
1998.
In June 1998, Yellow moved into a newly renovated facility
on Alsop Lane in Owensboro. Among the improvements to its
operation was a computer assisted dispatch system. Renova-
tions, which included the paving and striping of an employee
parking lot in the rear of the building, were completed by No-
vember 25, 1998.
Efforts to organize Yellow, which had apparently been dor-
mant for several months, were renewed in September 1998 by
Kay Phillips and her partner, EMT Norman Byers. Phillips and
Byers sent letters and authorization cards to approximately 30
employees. Employees also received union material directly
from Byers, James Hardin, and possibly others.
The Union held its first meeting in early November 1998 at
the IBEW hall in Owensboro. Union stickers, pens, and coffee
mugs were distributed. A number of employees placed the
union stickers on the rear windshields of the vehicles that they
parked in Respondent’s employee parking lot. This lot was and
is inspected and policed almost daily by Respondent’s supervi-
sors and on a regular basis by Hockenberry, Powell, and
Mackin.
Legal Framework for Analyzing the Record Evidence
The General Counsel alleges that numerous statements made
by Respondent’s supervisors to employees violated Section
8(a)(1). Section 8(c) of the Act specifically recognizes an em-
ployer’s right to express its views about labor issues and un-
ionization in noncoercive terms. Thus, the applicability of
Section 8(a)(1) to these statements turns on whether they would
reasonably tend to interfere with, restrain, or coerce employees
in the exercise of their Section 7 rights, Aluminum Casting &
Engineering Co., 328 NLRB 8, 9 (1999).
The instant record contains a great deal of uncontradicted
testimony by employees as to numerous coercive statements
made to them by Respondent’s supervisors. Except where
there is some material inconsistency in the employees’ testi-
mony or some other objective reason to doubt this testimony, it
has been credited. Thus, as set forth below, the General Coun-
sel has established numerous 8(a)(1) violations. Some of these
statements were made by supervisors, who may have had a
friendly relationship with the employee and/or desired to warn
the employee as to potential danger arising from his or her un-
ion activity. Such statements violate Section 8(a)(1) regardless
of any “friendly” objective on the part of the supervisor, Jordan
Marsh Stores Corp., 317 NLRB 460, 462 (1995); Trover
Clinic, 280 NLRB 6 fn. 1 (1986), Hanes Hosiery, Inc., 219
NLRB 338 (1975).
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must show that union activity has been a sub-
stantial factor in the employer’s adverse personnel decision. To
establish discriminatory motivation, the General Counsel must
show union or protected concerted activity, employer knowl-
edge of that activity, animus or hostility towards that activity
and an adverse personnel action caused by such animus or hos-
tility. Inferences of knowledge, animus and discriminatory
motivation may be drawn from circumstantial evidence as well
from direct evidence.1 Once the General Counsel had made a
prima facie case of discrimination, the burden of persuasion
shifts to the employer to prove its affirmative defense that it
would have taken the same action even if the employee had not
engaged in protected activity. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (lst Cir. 1981).
With regard to the 8(a)(1) and (3) violations alleged in this
case, knowledge of the discriminatees’ union activity and ani-
mus towards that activity is established by direct and circum-
stantial evidence, including the coercive statements referred to
above and the obviously pretextual reasons given for some of
the personnel actions taken by Respondent.

Discriminatory motivation may reasonably be inferred from a
variety of factors, such as the company’s expressed hostility
towards unionization combined with knowledge of the em-
ployees’ union activities; inconsistencies between the prof-
fered reason for discharge and other actions of the employer;
disparate treatment of certain employees with similar work
records or offenses; a company’s deviation from past prac-
tices in implementing the discharge; and proximity in time be-
tween the employees’ union activities and their discharge.

W.F. Bolin Co. v. NLRB, 70 F. 3d at 871.

As noted by the Court of Appeals for the Ninth Circuit in
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966):

Actual motive, a state of mind, being the question, it is seldom
that direct evidence will be available that is not also self-
serving. In such cases, the self-serving declaration is not con-
clusive; the trier of fact may infer motive from the total cir-
cumstances proved. Otherwise no person accused of unlaw-
ful motive who took the stand and testified to lawful motive
could be brought to book. Nor is the trier of fact-here a trial
examiner-required to be any more naïf than is a judge. If he
finds that the stated motive for a discharge is false, he cer-
tainly can infer that there is another motive. More than that,
he can infer that the motive is one that the employer desires to
conceal-an unlawful motive-at least where, as in this case, the
surrounding facts tend to reinforce that inference.

Accord: Fast Food Merchandisers, 291 NLRB 897, 898
(1988); Fluor Daniel, Inc., 304 NLRB 970, 971 (1991).
Each of the alleged violations must be established independ-
ently and Respondent’s defense to each alleged violation must
also be analyzed independently. However, in analyzing each
allegation, the entire context of the situation must be consid-
ered. This includes other unfair labor practices which have
been established, which are highly relevant in determining Re-
spondent’s motive—particularly, as in this case, where they
establish extreme hostility to unionization and employees’ ef-

1 Flowers Baking Co., 240 NLRB 870, 871 (1979); Washington
Nursing Home, Inc., 321 NLRB 366, 375 (1966); W. F. Bolin Co. v.
NLRB, 70 F.3d 863 (6th Cir. 1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 816
forts to organize, NLRB v. DBM, Inc., 987 F.2d 540 (8th Cir.
1993); Reeves Distribution Service, 223 NLRB 995, 998
(1976).
The alleged 8(a)(3) and (1) violations in this case range from
obvious and blatant, mostly notably in the case of James Har-
din’s discharge, to some that are very close calls, such as the
cases of Renee McKinney and Nancy Baker. Respondent’s
numerous unfair labor practices committed in ridding itself of
union supporters, tips the balance for the General Counsel in
establishing violations in some of these cases, but not others.
Alleged Violations of the Act
Russ Walkosak’s Interrogation of Kay Phillips
and Norman Byers
On or about November 17, 1998, Russ Walkosak walked
into the vehicle bay at Respondent's facility and asked if any-
body had heard anything about anybody starting a Union. Kay
Phillips replied that she had. Later that evening Phillips and
Norman Byers were parked in their ambulance at a designated
post in Owensboro. Walkosak drove out to their location and
got into the ambulance with them. He told Phillips and Byers
that he had received a call that morning from someone in Lou-
isville informing him that Phillips and Byers were trying to
start a union and directing Walkosak to look into this. Walko-
sak proceeded to tell the employees that he didn’t know if this
information was accurate but “the Mackins own 5 steel mills
and none of them are union; that should tell you something.”
Walkosak asked them some questions about the union mail-
ing and also indicated that the company management would be
watching Phillips and Byers.2 He observed something to the
effect that employees who start a union organizing campaign
are usually fired before any employees benefit from their ef-
forts.3 Walkosak’s statements constitute violations of Section

2 Walkosak made a similar inquiry at about this time of employee
Chris Embry regarding the union mailing. This inquiry is alleged as an
8(a)(1) violation in complaint par. 5(a). I dismiss that portion of the
complaint because I conclude that the interrogation of Embry by
Walkosak was not coercive. Walkosak’s questions were brief, did not
attempt to determine whether Embry was supporting the organizing
drive and, contrary to his conversations with other employees, sug-
gested no adverse consequences from supporting the Union. Further,
Walkosak’s conversation with Embry predated the numerous unfair
labor practices committed by Respondent.
3 I do not credit all of the testimony given by Phillips and Byers.
For example, I do not credit testimony by Phillips, which is inconsistent
with the affidavit given to the General Counsel. Similarly, some of
Byers’ testimony, particularly with regard to the date he ceased work-
ing for Respondent, is obviously inaccurate. However, I credit the
testimony of Byers and Phillips with regard to this incident because
their accounts are fairly consistent, consistent with much of the direct
and circumstantial evidence in this case and more importantly, uncon-
tradicted. Russell Walkosak, who at the time of the hearing was still
Respondent’s assistant director, was called as a witness by the General
Counsel but not by Respondent. He denied none of the many damaging
statements attributed to him.
Contrary to Respondent’s arguments at p. 223 of its brief, I conclude
that it is absolutely immaterial whether it was Byers or Walkosak, who
first mentioned the possibility that Respondent would be watching
Byers and Phillips. Any discrepancy between Byers’ testimony and
Phillips’ testimony is also immaterial. In the context of the conversa-
8(a)(1) as alleged in paragraph 5(d) and (e) of the complaint.
He interrogated Phillips and Byers concerning their union
membership, activities, and sympathies; created the impression
that their union activities were under surveillance by Respon-
dent, indicated that selecting the Union would be futile and
subtly threatened them with discharge if they continued these
activities.
Respondent Separates Phillips and Byers
Respondent scheduled its ambulance drivers for 3-week pe-
riods. When the first schedule after November 17, was issued,
Phillips and Byers were no longer partners. Byers went to see
Daniel Jacobs, then the director of the Owensboro facility.
Jacobs by this time had received a mailing from the Union and
had called one of its organizers in Colorado to speak to him
about it. Jacobs told Byers that Sherman Hockenberry had
instructed him to separate Phillips and Byers. He also told
Byers that Phillips was a troublemaker and that Jacobs did not
want Phillips to take Byers “down with her.”4 I conclude that
the separation of Byers and Phillips was effectuated to discour-
age and restrain their union activities and therefore violated
Section 8(a)(3) and (1) as alleged in complaint paragraph 6(a).
Further, I conclude that Jacobs’ statement was a threat that
violated Section 8(a)(1) as alleged in complaint paragraph 6(i).
There is no indication as to how Phillips was a “troublemaker”
other than by virtue of her efforts to organize Respondent’s
employees. See, e.g., Dey Rey Torilleria, Inc., 272 NLRB
1106, 1115 fn. 21 (1984), which notes that “troublemaker” is
often synonymous with union supporter.
Norman Byers’ December 11, 1998 Oral Warning
On December 11, Byers, received a disciplinary form docu-
menting an oral warning for clocking in at 9:06 a.m. on De-
cember 9, when his shift began at 9 a.m. The dispatcher gave
Byers a note stating that he arrived at work at 8:40 a.m. on
December 9. Respondent’s standard operating procedure states
that employees must clock in no more than 5 minutes before
their shift and clock out no sooner than the end of their shift.

tion, Walkosak’s confirmation of Byers’ fears, as well as his failure to
dispel such fears, was coercive.
Walkosak testified that he was “out of the loop” with regard to the
supervision of ambulance drivers. This assertion is inconsistent with
his testimony that he recommended that ambulance driver Michael
Lawson not be disciplined for an accident other than by being sent to
driving school and his testimony that he determined that Jamie Hardin
was at fault when his ambulance slid off the road in an ice storm in
January 1999. Walkosak conducted Hardin’s termination meeting on
March 19, 1999. Indeed, Walkosak testified that he supervised all
Respondent’s employees in the absence of the director.
4 Byers’ testimony, regarding this conversation, was not directly
contradicted by Jacobs. I do not credit Jacobs’ testimony that he sepa-
rated Byers and Phillips because they were consistently taking more
than 20 minutes to get back into service after dropping patients off at
the hospital. First of all, concessions made by Jacobs on cross-
examination with regard to when he first became aware of the union
organizing drive, establish that his direct testimony was less than can-
did. Secondly, there is no evidence that he told either Byers or Phillips
that this was the reason he was separating them. Thirdly, I find particu-
larly unreliable Jacobs’ testimony that Byers/Phillips performance was
worse than other crews.
YELLOW AMBULANCE SERVICE 817
The General Counsel alleges in paragraph 6(c) of the complaint
that Respondent violated Section 8(a)(3) and (1) in issuing this
warning to Byers. I find that the General Counsel has estab-
lished a prima facie case, which has not adequately been rebut-
ted by Respondent. By December 11, Respondent knew of
Byers’ role in the organizing drive and had already exhibited
extreme animus towards his activities. Among the considera-
tions that lead me to conclude that the warning was discrimina-
tory is that there is no evidence that Byers violated any com-
pany policy.
The note that Byers obtained from the dispatcher indicates
that he was not tardy. Furthermore, Respondent’s standard
operating procedure (GC Exh. 3 at p. 15), does not require that
an employee clock in no later than 5 minutes after the shift
starts. As Danny Jacobs explained the rule at Transcript 1896:

Primarily the reason [for the rule] was for the time clock be-
cause anything greater than five to seven minutes would actu-
ally roll back to the previous quarter hour. So it was more
from I guess to ease my job with regard to payroll.

The objective of the rule, therefore, appears to be to prevent
payment of unnecessary overtime. The absence of evidence
that Byers violated a company rule leads me to conclude that
the reasons for the warning are pretextual. The pretextual na-
ture of the warning, numerous demonstrations of Respondent’s
animus towards union activity and the pattern of discriminatory
conduct by Respondent lead me to conclude that Byers warning
was discriminatorily motivated.
Russ Walkosak’s Warning to Brian Kendall
After union stickers began to appear on the windshields of a
number of the employee vehicles in Respondent’s parking lot, a
number of supervisory officials informed employees as to man-
agement’s reaction to the stickers. Russ Walkosak told EMT
Brian Kendall that Jeff Mackin had told Walkosak that he
wanted every employee with a union sticker on their truck
fired. Walkosak advised Kendall to remove the sticker from his
truck (Tr. 594).5
Lisa Byers’ Warning to Amy Brumley; Walkosak’s Warning to
Amy and Roger Brumley
In late December, Lisa Byers, Respondent’s dispatch super-
visor, told EMT Amy Brumley that Danny Jacobs, Sherman

5 I credit Kendall’s testimony in this regard not only because it is un-
contradicted by Walkosak, but also because it is consistent with other
direct and circumstantial evidence in this case. With regard to direct
evidence, Supervisor Brenda Thompson denied telling employee Rich-
ard Turner that Sherman Hockenberry had been told by Jeff Mackin
that employees with union stickers should be fired. However, Thomp-
son testified that “there were several talking around in the garage, peo-
ple, employees were talking about that, had made comments about it.”
(Tr. 1999.) At a minimum, this indicates that the contention that they
heard that Mackin had made such statements was not something fabri-
cated by the General Counsel’s witnesses to buttress their case in this
hearing. Although Thompson could merely be relating a rumor that
was making the rounds of Respondent’s facility in January 1999, her
testimony strikes me as making it more likely that Kendall’s testimony
regarding his conversation with Walkosak is true. Other testimony,
although ambiguous, indicates that she may have heard other supervi-
sors make such remarks.
Hockenberry, Russ Walkosak, and Paul Powell had been in the
employee parking lot and wrote down the names of every em-
ployee with a union sticker on their vehicle. Shortly thereafter,
Walkosak also told Amy Brumley and her husband, paramedic
Roger Brumley, that the Company took the union stickers as “a
slap in the face” and that it would be in the Brumley’s best
interests to remove the union stickers from their vehicles.6
Written Warnings Issued to Roger and Amy Brumley
Paragraph 6(f) of the complaint alleges that, “[o]n an un-
known date in January, 1999, Respondent issued written warn-
ings to its employees Amy Brumley and Roger Brumley.” The
record establishes that the warnings in question were issued on
December 11, 1998, for failure to get the signatures of both the
patient and medical facility on a blue Medicare form. I dismiss
this allegation because the General Counsel failed to establish
that Respondent was aware of the Brumleys’ union sympathies
at the time these warnings were issued.
Brenda Thompson’s Surveillance of Union Supporters
During the fall and winter of 1998 and 1999, a number of
Respondent’s supervisors went to a designated post adjacent to
the IBEW hall while union meetings were in progress. In Janu-
ary 1999, Brenda Thompson, a supervisor, told her partner,
Vicky Belcher, that they were to make sure that no employee,
who was on duty, attended the union meeting. In sending
Thompson to this location for this purpose, Respondent vio-
lated Section 8(a)(1), as alleged in complaint paragraph
5(dd)(ii).7
The Discharge of Chris Embry
On December 15, 1998, Respondent fired EMT Chris
Embry. Yellow contends that Embry was fired because on
October 30, 1998, he ran low on gas due his negligence and
incurred a $54 towing charge which he concealed from Re-
spondent. The General Counsel contends that this explanation
is pretextual and that Embry was fired to restrain, coerce, and
interfere with the Section 7 rights of employees.
On Friday, October 30, Embry and Nancy Baker were sent
from Owensboro to Covington, Kentucky, 200 miles away, to
pick up a patient in an ambulance. On the way back, Embry
ran low on diesel fuel in New Albany, Indiana, which is across
the Ohio River from Louisville, half the distance between Cov-
ington and Owensboro.8 He called the Yellow dispatcher in
Owensboro and asked her to call Yellow’s office in Louisville
and ask it to bring him diesel fuel or take him some place where
he could get it.
In about a half-hour a tow truck appeared and Embry fol-
lowed it to a station where he refueled. He then returned to
Owensboro. On Monday morning, November 2, 1998, Embry
discussed the incident with Assistant Director Russ Walkosak.

6 Lisa Byers, who at the time of the hearing was still Respondent’s
dispatch supervisor, was not called as a witness by either party. Thus,
Amy Brumley’s account of her conversation with Byers is uncontro-
verted. Lisa Byers is the wife of alleged discriminatee Norman Byers.
The couple was separated from January to about August 1999.
7 Thompson did not directly contradict Belcher’s testimony in this
regard.
8 Embry may have been able to refuel in Louisville, but did not do so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 818
Walkosak laughed about what occurred and did not mention to
Embry that he might be disciplined for what happened.9
In early December, Embry displayed a union sticker on the
rear windshield on his truck.10 On December 15, 1998, Danny
Jacobs called Embry into his office and told him that he had
just received a $54 bill from the towing company and that he
was firing Embry because he had informed neither Jacobs nor
Walkosak about the October 30 incident. Embry replied that he
had reported the incident to Walkosak; Walkosak confirmed
that this was true. Jacobs reiterated that neither he nor Walko-
sak had been informed of the incident in a timely manner and
that he (Jacobs) had been made to “look like a dumb ass” in
front of Sherman Hockenberry. Jacobs proceeded to terminate
Embry.
A few days later, Embry returned to the Yellow facility to
pick up a paycheck. He went to Sherman Hockenberry and
asked if he could have his job back if he reimbursed Yellow for
the $54 towing charge. Hockenberry said he would have to talk
to Jacobs. Neither Hockenberry nor Jacobs responded to
Embry’s offer.
Embry returned to the facility again two weeks later to pick
up another check. At this time Russ Walkosak told Embry that
he thought Embry had been fired because he was prounion. He
also told Embry that Jacobs, Paul Powell, and Jeff Mackin had
walked around the parking lot and wrote down the names of
employees with union stickers and that Embry’s name was one
of those recorded. Finally, Walkosak asked Embry who started
the Union. Embry said he wouldn’t tell him. Walkosak said
that was fine because he already had an idea that Kay Phillips
and Norman Byers had initiated the organizing campaign.
I conclude that Embry’s discharge violated Section 8(a)(3)
and (1) as alleged. Respondent’s knowledge and hostility to-
wards Embry’s union activity is established by both direct and
circumstantial evidence. Discriminatory motivation is estab-
lished by compelling circumstantial evidence. Most notewor-
thy is the fact that Respondent knew Embry ran out of gas and
dispatched the tow truck 7 weeks before his discharge. Yet, it
never disciplined him until after it saw the union sticker on his
truck, Montgomery Ward & Co., 316 NLRB 1248, 1253
(1995). Moreover, Respondent’s failure to offer any explana-
tion as to why it did not take Embry up on his offer to reim-
burse it for the $54, in lieu of discharging him, is additional
evidence of discriminatory motive.
As a matter of law, I conclude that Respondent has not met
its affirmative defense that it would not have fired Embry had
he not displayed his support for the Union. As a factual matter
I conclude that Daniel Jacobs used the bill for the tow truck as
an excuse to carry out the wishes of his superiors to take advan-
tage of every available opportunity to get rid of union support-
ers.

9 Embry’s account of this conversation and the others recounted be-
low was not contradicted.
10 Danny Jacobs’ testimony at Tr. 1913, that he did not know who
was engaged in union activity at this time is not credible. Jacobs, on
cross-examination, conceded that his testimony that he was not aware
of the organizing drive prior to November 25, was inaccurate. I con-
clude that he was well aware of which employees, including Embry,
were displaying union stickers on their vehicles by December 15.
James Hardin’s Written Warning of December 22, 1998
On December 22, James Hardin and his partner, Carvella
Coomes, returned later than scheduled to Respondent’s head-
quarters from a basic life support (BLS) run.11 They refueled
the ambulance but left linen and a few pairs of latex gloves in a
trashcan inside the vehicle. Bruce Nanney, the senior street
supervisor, gave Hardin a disciplinary form documenting an
oral warning the next day.12 When Hardin complained about
having the warning documented, Nanney replied that all disci-
plinary actions had to be documented now.
A few days later, Hardin complained to Sherman Hocken-
berry about the written nature of the warning. Hockenberry
told him that supervisors had been instructed to document eve-
rything. He conceded that prior to the union campaign that
Nanney would have probably just given Hardin a verbal re-
minder to empty the trash and linen from the vehicle in the
future and that except for the union organizing campaign, Har-
din would not have received any written form of discipline.
Hockenberry observed that “employees had created this situa-
tion.” Finally, he stated that “if all this passes” warnings such
as that given to Hardin might be transferred out of their person-
nel file and into a separate file (Tr. 1173–1181; GC Exh. 33 (a
tape recording made by Hardin of his conversation with Hock-
enberry)).
A change in policy that results in the issuance of “written
oral warnings” as opposed to oral reprimands as part of a disci-
plinary procedure is permissible when it is not implemented in
response to protected union activities. However, where such a
change in policy is made in response to an organizing cam-
paign, it violates Section 8(a)(3) and (1) and so does any “writ-
ten oral warning” issued pursuant to that policy, Contris Pack-
ing Co., 268 NLRB 193 at 197 and 215 (1983); Mississippi
Tank Co., 194 NLRB 923, 925 (1972). Thus, Respondent vio-
lated the Act in issuing such a warning to James Hardin on
December 22, 1998.
The Written Warning Issued to Jeffrey James on
January 4, 1999
Like many of Yellow Ambulance’s employees, paramedic
Jeffrey James worked part time for an ambulance service in a
neighboring county. Early in the morning of January 4, 1999,
James, who openly supported the Union, called the Yellow
dispatcher to let the dispatcher know that he might be later than
the 7:30 a.m. scheduled start of his shift. James arrived and
clocked in at 7:31 a.m..13

11 Basic Life Support (BLS) runs are distinguished from Advanced
Life Support (ALS) runs by their nonemergency nature. Often BLS
runs consist merely of taking elderly patients to and from a nursing
home to a doctor’s appointment. BLS ambulance units are often staffed
by two EMTs, who unlike paramedics, are not qualified to start intra-
venous treatments or other emergency measures. A BLS unit usually
will not have waste that is contaminated by blood or other body fluids.
12 While Hardin openly supported the Union, Coomes did not, ex-
cept for a 1-month period in about April 1999.
13 That James clocked in 1 minute after his shift started is established
by the tardy memo sent to Hockenberry by Russ Walkosak, as well as
James’ testimony, GC Exh. 18; Tr. 666.
YELLOW AMBULANCE SERVICE 819
After he had left Respondent’s headquarters in his ambu-
lance, James was instructed to return. When he arrived, he was
given a written warning by Sherman Hockenberry, then acting
as Yellow’s director in Owensboro. James argued that he did
not deserve any discipline but assuming that he did, it should be
an oral warning, not a written warning. Hockenberry said
James had been counseled for tardiness previously by Bruce
Nanney. James said that was incorrect and asked for the oppor-
tunity to speak to Nanney. Russ Walkosak, who was present
when the disciplinary form was presented, told James that
“with all the stuff going on concerning the union, that we have
no choice but to go by the book.”
Hockenberry did agree that if Nanney conceded that he had
not previously warned James about tardiness, he’d reconsider
the written warning. A few weeks later, James talked to Nan-
ney, who admitted that he may not have warned James about
being tardy prior to January 4. Nanney said he would speak to
Hockenberry, but neither of them approached James about the
warning.
James then went to speak to David Dinwiddie, who had be-
come director on January 6. Dinwiddie told James he couldn’t
do anything about the warning because it might be interpreted
as an effort to influence James’ vote in the upcoming NLRB
election. Dinwiddie told James, however, that he should talk to
him about the warning after the election.
After the February 24, 1999 election, James went to see
Dinwiddie about the warning. Dinwiddie’s response to James’
inquiry was, “I have bosses too and my boss says it stays in
there” (Tr. 673–674).14
Paragraph VIII of respondent’s standard operating proce-
dures (SOP) (GC Exh. 3 p. 16) provides:

Effective November 1, 1988, the policy on absences and tar-
dies shall be:

. . . .

A tardy shall be defined as being more than five minutes late
for your shift . . .

Similarly, paragraph IX of the SOP states, “Employees are to
report to duty at their regularly scheduled time and are consid-
ered tardy five (5) minutes after their scheduled starting time.
(GC Exh. 3, p. 18.)
David Dinwiddie was given Respondent’s Louisville SOP,
General Counsel Exhibit 3, on January 6, 1999, his first day at
work. Sherman Hockenberry told Dinwiddie that the Owens-
boro operation was governed by those SOPs, but that he wanted
Dinwiddie to draft an SOP that was specific to Owensboro, i.e.,
deleted references that were applicable to Louisville area opera-
tions, but not to Owensboro. For example, references to the
Jewish Hospital in Louisville were to be deleted. However, no
substantive changes were made to the SOP (Tr. 139).
On about May 1, 1999, Yellow issued its Owensboro SOP.
Paragraph VIII of the Owensboro SOP states:

“Effective November 1, 1988, the policy on absences and tar-
diness shall be [emphasis added]:

14 Dinwiddie did not contradict James’ testimony that Dinwiddie
made such a statement.

. . . .

A tardy is defined as clocking in after the schedule time your
shift starts . . .”

It is thus evident that the written warning issued to James
was contrary to the definition of tardiness in Respondent’s SOP
that was in effect in January 1999.15 This, being the case, I find
that given the overall context in which the warning was given,
i.e., Respondent’s knowledge of James’ support for the Union
and its hostility to employees’ union activities, that the warning
issued to James was discriminatorily motivated and violated
Section 8(a)(3) and (1).
Written Warning Issued to Kay Phillips on
January 24–29, 1999
Complaint paragraph 6(h) alleges that “[o]n an unknown
date in February, 1999, Respondent issued a written warning to
its employee Tyra Kay Phillips.” The briefs of the General
Counsel and the Charging Party discuss a written warning is-
sued to Phillips on January 24, 1999, with regard to this allega-
tion (GC Exh. 11). Respondent’s brief does not focus on the
January warning, but instead discusses a warning issued on
February 19, 1999 (GC Exh. 13).
It is quite apparent from the transcript that the thrust of the
General Counsel’s case involved the January warning, which I
conclude was tried with the consent of the parties, even though it
would have been preferable if the pleadings had been amended.
The relevance of the February 19 warning to this case is that it
constitutes yet another indication of Respondent’s animus to-
wards Phillips’ union activities. This document establishes that
Yellow did not rescind a written warning issued to Phillips for
alleged misconduct that it was unable to substantiate; nor did it
expunge it from her personnel records (GC Exh. 13).
The January 24, warning arose out of the following incident.
On January 21, Phillips was assigned to an ambulance desig-
nated by Respondent as “Med 99.” As is customary, Phillips
inspected the ambulance and noticed that the rear tires on the
driver’s side were bald. She went to Danny Jacobs, who al-
though no longer the director, was acting in a supervisory ca-

15 Danny Jacobs may have told some employees at a November 25,
1998 meeting that there would be no more grace periods with regard to
tardiness. However, employees were not told that the definition of
tardy in the SOP had been changed and Hockenberry did not tell Din-
widdie in January 1999, that the definition of tardy in the SOP was no
longer applicable. I do not credit Dinwiddie’s testimony at Tr. 368,
which in response to leading questions, suggests that he was told in
January that the tardiness provisions of the Louisville SOP (GC Exh. 3)
were no longer operative in Owensboro. There is no indication that
Jacobs had authority to so modify such a basic company document or
that any such modification was made by any higher authority prior to
May 1999.
Moreover, Respondent was aware of the union organizing campaign
by November 25, and if a change was made to the definition of tardi-
ness in the SOP only for Owensboro employees, I conclude, in the
absence of any alternative explanation, that it was made in response to
the campaign and therefore violated Sec. 8(a)(3) and (1), Contris Pack-
ing Co., supra.
The May 1999 SOP would also appear to violate the Act if the tardy
policy was only changed in Owensboro.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 820
pacity. Jacobs agreed with Phillips that the tires were bald, that
they posed a safety hazard and took Med 99 out of service.
Phillips used a different ambulance.
Three days later Phillips was again assigned to Med 99.
When she inspected the ambulance, she noticed that the bald
tires had not been replaced. Jason Tierney, the supervisor on
duty, was not at headquarters. The dispatcher, Nancy Baker,
told Phillips that Russ Walkosak had put Med 99 back into
service. Baker informed Phillips that another ambulance, Med
98, was not being used; Phillips used that vehicle on her shift.
On January 29, David Dinwiddie presented Phillips with a
written warning for insubordination, i.e., refusing a direct order
to use Med 99. Phillips told Dinwiddie she did not refuse to
use Med 99, but rather used Med 98 with the approval of dis-
patcher Baker. Phillips also asked why she was receiving a
written warning when she had no prior discipline. Dinwiddie
replied that he was not required to give her an oral warning
first.
By this time, Dinwiddie and other Yellow supervisors had
been told that Mackin and/or Powell wanted union supporters
terminated. Therefore, I conclude that the written warning
given to Phillips, the leader of the organizing campaign, was
motivated by a desire to retaliate against her for her union ac-
tivities and to restrain, coerce, and interfere with the exercise of
employees’ Section 7 rights.
Dinwiddie testified that Nancy Baker told him that Phillips
used profanity and refused to drive Med 99. Baker testified at
hearing that she told Dinwiddie only that Phillips felt endan-
gered by the bald tires. Moreover, within a few days of January
29, Phillips gave Dinwiddie a statement from Baker supporting
her version of the incident (Tr. 1726). Baker thus failed to
support Respondent’s account long before she herself devel-
oped hostility towards Yellow and Dinwiddie.
Moreover, even if Phillips had refused to use Med 99 and
used profanity in expressing herself to Baker, Respondent
would not have established a nondiscriminatory reason for the
warning issued to her. When I asked Dinwiddie why it mat-
tered to him whether Phillips used Med 98 instead of Med 99,
he replied:

There’s multiple factors. One is Paul Powell who I answer to
in Louisville is a stickler that we average out the mileage’s on
the trucks. We have to get them within a certain range at the
end of each month. That’s one factor. The other factor is that
we have to assign a truck for the day and a truck for the night
to make sure that they go inside. We have to make sure a
truck is available every 30 minutes. So if somebody takes a
different truck, it could throw the whole schedule out. We
schedule the trucks ahead of time, a week ahead. So if some-
one takes an inappropriate truck, it literally throws the most
[sic] schedule out and we have to do the whole schedule [Tr.
1727].

Followed to it logical extreme, Dinwiddie’s answer suggests
that Respondent would risk the safety of its employees and the
patients they transport simply to average out the mileage on its
ambulances and stick to its predetermined schedules. Whatever
importance Respondent places on its vehicles’ mileage and
schedules, the fact that it took Med 99 off-line indicates that it
does not generally place more weight on these factors than on
the safety of its employees and passengers.16
Moreover, Respondent has not established that Phillips’ tak-
ing Med 98 caused any disruption to its operation. Disciplinary
action would only be pursued against an employee in this situa-
tion if the employer had an ulterior motive. I conclude that
Respondent had such a motive, i. e., to lay the groundwork for
firing Phillips and intimidating other employees who might
support the Union.
Alleged Discriminatory Changes in
Shift Assignments and Partners
Complaint paragraphs 6(i), (n), (aa), and (dd) allege that Re-
spondent assigned a number of employees to less desirable
shifts and/or to different work partners in a discriminatory fash-
ion to discourage union membership. As Respondent submits,
there is no evidence that anything such as a permanent shift or
partner assignment existed at any time. However, a number of
employees worked the same shift and had the same partner for
an extended period of time. For example, Darrell Lancaster
and Cindy Payne had worked together on the night shift for
almost a year, prior to the February 21, 1999 schedule. Simi-
larly, Dennis Wade had worked with Jeff James for a year on
the same shift until the March 14, 1999 schedule. On the basis
of this evidence, I conclude that Respondent did not have any
policy of routinely or periodically changing shifts or partners
and did so only when specific considerations led it to do so.
The timing of the wholesale changes in shifts and partners
that occurred with the March 14 schedule suggests discrimina-
tory motive. This was the first schedule following the Union’s
election victory. Moreover, the schedules of a number of em-
ployees, who were not generally regarded to be union support-
ers, were unchanged. Respondent has offered little in the way
of explanation for the specific changes it made on March 14.
To the extent that it has offered nondiscriminatory explana-
tions, I do not find them credible.
That Respondent used its work schedules to discourage sup-
port for the Union is established by the fact that Richard Turner
complained to Bruce Nanney about being scheduled for 9 con-
secutive nights on the February 21–March 13 schedule. De-
spite this, David Dinwiddie scheduled union supporters Kay
Phillips and Amy Brumley for 9 consecutive nights on the
March 14–April 3 schedule.
In the absence of replication, I would have been inclined to
find the scheduling of Turner and Norman Byers for nine con-
secutive nights on the February 21 schedule accidental. How-
ever, since Respondent scheduled Phillips and Brumley for nine
consecutive nights on the March 14 schedule, after Turner’s
complaint, I conclude that this scheduling was done with a
discriminatory motive. I also infer from this that Dinwiddie’s
other schedule and partner changes on the March 14–April 3
schedule were made pursuant to a desire to retaliate against

16 Respondent’s evidence that the ambulance was safe to use while
the tires were on order is pure hearsay and I conclude completely unre-
liable. Dinwiddie testified about what Walkosak determined about the
tires; no such testimony was elicited from Walkosak.
YELLOW AMBULANCE SERVICE 821
union supporters and to discourage employees from engaging
in union activities.17
With regard to the February 21 allegations, I infer that the
separation of Lancaster and Payne and their change from night
shift to day shift were made in part to retaliate for the protected
complaints to Hockenberry on February 10 (see discussion
below). I dismiss the allegation with regard to Dennis Wade
because his schedule and partner did not change until March
14, and those changes are encompassed by complaint paragraph
6(dd). Finally, while Richard Turner’s shift was changed to
night in concert with moving Lancaster to the day shift, I con-
clude from Dinwiddie’s unwillingness to change Turner’s shift
or his nine consecutive night assignment, that this was also
done with intent to retaliate against Turner for his support of
the Union, and to discourage others from supporting the Union
in the election scheduled 3 days later.
Changes in the Roaming Policy (Complaint
Pars. 6(m), (v), and 7(i))
Ambulance crews at Yellow are generally assigned a post or
specific location at which they are to park and wait for radio
messages from the dispatcher to go out on assignment (runs).
However, crews are allowed to leave their posts and move to
another location, a practice known as “roaming.” In November
1998, Daniel Jacobs restricted the area within which crews
were allowed to roam. Just prior to the election, Respondent
informed crews that they must request permission from the
dispatcher in order to “roam” from their designated post. In the
absence of evidence that Respondent used this new rule to pre-
vent employees from roaming, I conclude that the change was
not motivated by antiunion animus. I therefore dismiss com-
plaint paragraph 6(m), which alleges a violation in this regard
on or about February 21.
I dismiss complaint paragraphs 6(v) and 7(i) because Re-
spondent did not announce a new policy on March 2. On that
date, David Dinwiddie told Richard Turner that he would have
to advise the dispatcher whenever he changed his location.
This appears to be the same rule that he implemented just prior
to the election.

17 In its Br. at pp. 252–253, Respondent argues that allegations
should be dismissed with regard to shift and partner changes with re-
gard to Michael Durbin, David Walker, and Darrell Lancaster. GC
Exh. 14 establishes that compared with the February 21 schedule, the
following changes occurred with regard to these three employees:
Durbin was moved from a 7:30 a.m.—11:30 p.m. BLS shift to an 8
a.m.—4 p.m. ALS shift with Dennis Wade; Lancaster’s hours changed
and Brenda Thompson became his partner, replacing Glen Zogelman;
Walker’s partner changed from Marietta Coakley to Roger Brumley.
While Walker and Durbin never testified, Dennis Wade’s testimony
credibly establishes that all the employees named in the complaint had
demonstrated support for the Union by attending at least three union
meetings. I infer that Respondent was aware of their attendance by
virtue of the fact that it posted supervisors across the street from the
IBEW hall during many or all of the Union’s preelection meetings.
On the other hand, I dismiss the allegation in pars. 6(aa) and (dd)
with regard to Norman Byers, who did not work for Respondent after
March 1, 1999.
Cynthia Payne’s 2-Day Suspension
Sometime in early February 1999, David Dinwiddie insti-
tuted a new policy whereby supervisory personnel were placed
in response cars and did not go on ambulance runs. Paramedic
Darrell Lancaster took particular exception to the new policy.
On February 9, he got into a heated argument over the policy
with Supervisor Jason Tierney. At one point Lancaster said to
Tierney, “Well mother-fucker, what gives you the right to pick
and choose your rides.” The next day, Lancaster received a
writing warning from Respondent for his disrespectful attitude
(R. Exh. 13).
On or about February 10, Lancaster discussed the new policy
with his partner, EMT Cynthia Payne, who had also expressed
her disagreement with the new policy to Tierney.18 Payne sug-
gested that she call Sherman Hockenberry in Louisville and ask
him to come to Owensboro to discuss the new policy with Payne
and Lancaster. Payne then called Hockenberry, who told her he
would have to check his schedule. Within a few hours, Dinwid-
die called Payne and told her in a very angry voice that if she felt
the need to call Hockenberry, she could come into Dinwiddie’s
office immediately and discuss her problems with him.
At the end of her shift, early on the morning of February 11,
Dinwiddie called Payne into his office, yelled at her for going
over his head to Hockenberry and handed her a suspension
form (GC Exh. 30). That form relates that Payne called Hock-
enbery to tell him that she and Darrell Lancaster needed to talk
to him about things going on in Owensboro (emphasis added).
Payne was suspended for 2 days for insubordination. In the
suspension form, Dinwiddie cited a rule in the Yellow hand-
book requiring employees to call problems to the attention of
their immediate supervisor.
The General Counsel established a prima facie case of an
8(a)(1) violation with regard to Payne’s suspension by showing
that: she called Hockenberry on the authority of Lancaster re-
garding working conditions,19 that, as shown by General Coun-
sel Exhibit 30, Respondent knew she was acting in concert with
Lancaster and that her suspension was motivated by the tele-
phone call, Amelio’s, 301 NLRB 182 (1991). Respondent has
offered no evidence to rebut the prima facie case.
Payne’s complaint does not lose its protected status by her
failure to go through Dinwiddie before seeking redress from
Hockenberry.20 I can find no cases that explicitly state that an
employer cannot retaliate for otherwise protected activity be-
cause an employee ignored an employer’s chain of command.
However, there are a number of cases that implicitly stand for
this proposition. In Oakes Machine Corp., 288 NLRB 456

18 Both Payne and Lancaster openly supported the Union.
19 Respondent argues at pp. 156–157 of its brief that Payne did not
complain to Hockenberry about “wages, hours and working conditions”
because she did not specifically tell Hockenberry what issues she
wanted to discuss. I reject this argument because it is quite apparent
that Payne was calling to complain about working conditions and that
Hockenberry and Dinwiddie were aware of this fact. If they thought
that Payne’s call was not work-related, Hockenberry would not have
called Dinwiddie and Dinwiddie would not have disciplined Payne for
insubordination.
20 Payne complied with the terms of Respondent’s handbook by rais-
ing her concerns first with Tierney.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 822
(1988), for example, the Board found an 8(a)(1) violation
where an employer discharged an employee for sending a letter
to the parent company asking it to remove the company’s
president, see also Puerto Rico Sheraton Hotel, 248 NLRB 867
(1980); Memphis Chair Co., 191 NLRB 713 (1971).
Changes in Cynthia Payne’s Work Schedule
and Her Resignation
Darrell Lancaster and Cynthia Payne had been partners ever
since Respondent acquired the Owensboro EMS contract in
March 1998. They worked a night shift from 10 p.m. until 6
a.m. until February 21, 1999, when they were separated and
assigned to the day shift.
Payne was paired with Kay Phillips, working two 16-hour
shifts from 7 a.m. until 11 p.m. and one 8-hour shift from 3 or
3:30 until 11 p.m.
On February 19, the day Payne learned of her shift change,
she called David Dinwiddie and asked him why her shift was
changed. Dinwiddie replied the change was made because she
was hostile to supervisor Jason Tierney. Payne denied this and
then told Dinwiddie that her babysitter could not keep her chil-
dren after 3:30 p.m. Dinwiddie responded by saying that he
would accept her resignation.
Dinwiddie admitted that part of the reason for moving Payne
to the day shift was her call to Sherman Hockenberry (Tr.
1694). This is essentially a concession that the shift change
was in retaliation for protected activity and therefore violative
of Section 8(a)(3) and (1), as alleged in complaint paragraphs
6(i) and (n). Implicit in her discussion of her babysitting prob-
lems with Dinwiddie was a request for a return to the night
shift. In view of Respondent’s expressed desire to get rid of
union supporters and the lack of any convincing reason prof-
fered for not accommodating Payne, I conclude that Respon-
dent also violated the Act, as alleged in complaint paragraph
6(l) by denying the request to return to the night shift. This
conclusion is reinforced by the fact that within a week or week
and a half of Payne’s discussion with Dinwiddie, Norman
Byers, who had been working days until February 21, asked for
a return to the day shift. Instead of accommodating Payne and
Byers, both open union supporters, Dinwiddie declined to ac-
commodate either, knowing that in doing so it was reasonably
likely they would have to quit.
Payne was able to get her sitter to keep her children until 5 or
5:30 p.m. and continued to work for Respondent. On Sunday
night, February 21, 1999, Payne called the Yellow facility and
spoke to Supervisor Marietta Coakley. She told Coakley that
she would be 2 hours late for the 3–11 p.m. shift she was
scheduled to work the next day.21 Coakley told her that would
be fine. A few hours later, Terry Dossett called and told Payne
not to come to work at all because it would create 2 hours of
overtime.22

21 I infer from Payne account of Coakley’s response and her conver-
sation with Dossett, that she told Coakley that her son had chickenpox
and that she had to wait for her husband to get home before coming to
work.
22 This is alleged as an 8(a)(3) and (1) violation in complaint par.
6(o). The complaint also alleges a violation on the grounds that Re-
Starting March 14, Payne was reassigned from an ALS unit
to a BLS unit, which is much less interesting, working 9 a.m. to
5 p.m., Monday through Friday. Payne again told Dinwiddie
that the schedule caused her problems with her babysitter and
asked to be moved back to the night shift. She told him that
several employees working the night shift had told her they
would be willing to swap shifts with her. Dinwiddie told her
there was no opening for her on the night shift.
From March to May 1999, Payne told Dinwiddie on several
occasions that at the end of the school year, her sitter would not
watch both of her children. In May, she made a written request
for a return to the night shift, or alternatively two 16-hour and
one 8-hour shifts. Dinwiddie refused to accommodate her.23
Payne then asked Dinwiddie if she could switch from full-
time to part-time employment. Dinwiddie told her she would
have to fill out an application. Payne declined to do so. She
asked why two part-time employees had been moved into the
day shifts she was requesting. Dinwiddie refused to give her a
reason. At that point, Payne submitted a letter of resignation.
Dinwiddie told her that unless she gave him 2weeks’ notice,
she was not eligible for rehire.24
I conclude that Respondent constructively discharged Payne
in refusing to either return her to the night shift or give her two
16-hour and one 8 hour shifts. The test for constructive dis-
charge is:

First, the burdens imposed upon the employee must cause,
and be intended to cause, a change in his working conditions
so difficult or unpleasant as to force him to resign. Second, it
must be shown that those burdens were imposed because of
the employee’s union activities.

Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976).

Both Payne’s transfer to the night shift in February and Re-
spondent’s refusal to accommodate her babysitting problem
were motivated by her union and protected concerted activities.
They were intended to cause her resignation and it was rea-
sonably foreseeable that forcing Payne to work five 8-hour day
shifts would have that result. In American Licorice Co., 299
NLRB 145, 148 (1990), the Board found a constructive dis-
charge in virtually identical circumstances. In American Lico-
rice the employee had told her employer that she could not
work the day shift because she could not afford a babysitter.

spondent issued Payne an unexcused absence. As Respondent con-
tends, R. Exh. 15 indicates that the absence was not unexcused.
I dismiss this portion of the complaint because there is insufficient
evidence to support an inference of discriminatory motivation. The
General Counsel’s case is based on the fact that originally Payne was
told she could come in late and her testimony that other unnamed em-
ployees were allowed to do so.
23 I credit Payne’s testimony over that of Dinwiddie and find that
Respondent never offered Payne the opportunity to return to the night
shift. GC Exh. 6 establishes to my satisfaction that Payne’s testimony
at Tr. 2100 is more credible that Dinwiddie’s testimony at Tr. 1745–
1746. GC Exh. 6 indicates that, consistent with her testimony, Payne
worked the day shift on May 17, 1999, and was scheduled to work the
day shift throughout that week (also see GC Exh. 14).
24 Payne testified that she could not give 2 weeks’ notice because
school ended the next week.
YELLOW AMBULANCE SERVICE 823
The employer refused to transfer her to another shift and she
resigned.
The instant case is materially indistinguishable from Ameri-
can Licorice—other than by the fact that Payne could have
become a part-time employee. In this regard the Board has
held that an offer of continued employment only at reduced
hours constitutes constructive discharge, Kostel Shoe Co., 124
NLRB 651 (1959). Assuming that an offer to continuing work-
ing as a part-time employee may in some circumstances not
constitute constructive discharge, it does so in the instant case,
where it was evident in May 1999 that part-time employees
would be offered very little work by Respondent. Additionally,
by switching to part-time employment, Payne would have lost
her health insurance coverage and entitlement to vacation and
holiday pay.25
Constructive Discharge of Norman Byers
(Complaint par. 6(gg))
In January 1999, Norman Byers and his wife, Lisa, sepa-
rated. Byers, who was working two 16-hour and one 8-hour
shifts for Yellow, applied for a job driving a truck a night. On
the work schedule for the period February 21—March 13,
1999, Byers was switched to 11 p.m. to 7 a.m. night shift. He
was also scheduled to work nine consecutive nights.
When he was offered the night trucking job, Byers went to
David Dinwiddie and told him that he wanted to return to the
day shift. He explained that he needed the second job to pay
his bills and child support and that since he generally worked
only on three days, he would be able to keep his son while his
wife worked on the other days. Dinwiddie refused to make the
change despite the fact, as set forth above, that he knew that
Cynthia Payne wanted to be switched back to nights because of
her babysitting problem. For the same reasons I concluded that
Respondent constructively discharged Payne, I conclude that it
constructively discharged Norman Byers.26
Alleged Discharge of Nancy Baker
(Complaint par. 6(bb))
Nancy Baker, began working for Yellow as a dispatcher in
February 1998, and became an EMT upon reaching the age of
21 in January or February 1999. She was assigned to a BLS
unit working 8 a.m. to 4 p.m. At the time of this assignment,
Baker told David Dinwiddie that she could not work nights,
although she did not explain why.

25 A similar case is NLRB v. Grand Canyon Mining Co., 116 F.3d
1039, 1049 (4th Cir. 1997) enfg. Grand Canyon Mining Co., 318
NLRB 748, 760 (1995). In this case the employer moved a union sup-
porter to the night shift with prior knowledge that he did not have
transportation to get to work at night.
26 In view of the above finding, I find it unnecessary to decide
whether Respondent violated the Act in denying Norman Byers the
opportunity to work part time as alleged in complaint par. 6(ll)(i). I
also dismiss pars. 6(ee) and (ll)(ii). I find the evidence insufficient to
establish discriminatory motivation when Respondent denied Norman
Byers a 2-day excused absence to attend the funeral of two cousins.
With regard to requiring a new application from employees who
wanted to switch from full time to part time, the General Counsel has
not established how this affected employees adversely in any material
way.
Baker openly supported the Union by affixing a sticker to the
rear of the vehicle she parked in Yellow’s employee parking lot
and using a coffee mug and pens at work that bore the union
logo. She also failed to lend support to Yellow in its effort to
discipline Kay Phillips for not using Med 99, the ambulance
with bald tires, in January. I infer that Respondent was aware
of Baker’s union sympathies.
Baker accepted a job working nights at the Owensboro hospi-
tal on February 24, 1999. She did not inform Respondent that
she had this job. For the schedule starting March 14, Baker was
switched to night shifts as a relief driver on ALS units. This was
the same schedule on which Cynthia Payne, who had told Din-
widdie of her babysitting problems with day shift work, was
switched to a BLS unit, which operated only during the day.
On March 12, Baker, who was ill, called Office Manager
Debbie McDaniel and asked her if another employee could
bring Baker her check. McDaniel informed Baker that she
would have to come to the office and get it herself. When
Baker picked up her check she noticed that for the second pay
period in a row, the check did not contain a raise which she had
been led to expect from conversations with Daniel Jacobs and
Lisa Byers.
Baker went to see David Dinwiddie to complain about the
lack of a raise. Dinwiddie told Baker that all wages were fro-
zen pending negotiations between Respondent and the Union.
Baker then reminded him that she could not work night shifts,
although it is not clear whether she mentioned her job at the
hospital. Baker asked Dinwiddie if she could swap shifts with
other employees. Dinwiddie said she could not.
Baker stormed out of Dinwiddie’s office and he followed her
to her car. He asked her to return to his office and she refused.
Baker testified that Dinwiddie then told her that she no longer
worked for Respondent. Dinwiddie denies this. I am unable to
credit Baker’s account of this conversation over that of Din-
widdie.
On May 14, Supervisor Marietta Coakley called Baker and
told her that she was expected at work that evening. Baker told
her she could not come to work that night because she was
scheduled to work at the hospital. She never worked for Re-
spondent again. On the basis on this evidence I conclude that
the General Counsel has not established that Respondent termi-
nated Nancy Baker. I therefore dismiss complaint paragraph
6(bb).
Constructive Discharge of Brian Kendall
(Complaint pars. 6(nn) and (oo))
EMT Brian Kendall, was an open union supporter, who prior
to March 14, 1999, had been working two 16-hour and one 8-
hour days shifts. His ambulance partner for over 9 months had
been Scott Hedrick. Beginning on March 14, Kendall was
paired with James Dukes and his 8-hour shift was a night shift,
instead of a day shift. Kendall went to David Dinwiddie and
asked that the schedule be changed due to a babysitting prob-
lem. Dinwiddie told him to swap shifts and possibly he would
schedule him exclusively on days on the next 3-week schedule.
When the schedule for April 4—25 came out, Kendall was
again scheduled for one 8-hour night shift per week. On April
5, Kendall wrote Dinwiddie asking to put on a part-time sched-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 824
ule, citing among other things, his babysitting difficulties.
Dinwiddie told Kendall that he had to fill out a new employ-
ment application to be a part-time employee. He did so. Kend-
all did not work again for Respondent. He was called by Lisa
Byers once in April for a night-shift assignment that he turned
down for lack of childcare. Byers asked him what days he
would be available to work and Kendall gave her 4 or 5 days.
She never called him back.
I conclude that Respondent constructively discharged Brian
Kendall. Dinwiddie rescheduled Kendall for a night shift be-
cause he knew that Kendall would be unlikely to continue
working as a full-time employee, if he did so. Moreover, I
conclude that it was the conflict between Kendall’s childcare
situation and his night-shift assignment that made it extremely
difficult for him to remain a full-time employee. The offer of
part-time employment to Kendall, which would have resulted in
reduced hours and loss of benefits, does not, as the Board found
in Kostel Shoe Co., supra, negate the constructive discharge
consummated by forcing Kendall to surrender his full-time
position.
Respondent Violated Section 8(a)(3) and (1) by Refusing
to Rehire Brian Kendall
Board Precedent Allows, and Indeed Requires, Consideration
of Respondent’s Refusal to Rehire Brian Kendall
At page 3 of its brief, footnote 3, the General Counsel re-
quests that the judge find violations, where appropriate, when
the record establishes violations which were not alleged in the
complaint. At page 42, footnote 50, the General Counsel ar-
gues that Respondent’s refusal to rehire Brian Kendall in May
1999, violated Section 8(a)(3) and (1). It is well settled that the
Board may find and remedy a violation even in the absence of a
specified allegation in the complaint if the issue is closely con-
nected to the subject matter of the complaint and has been fully
litigated, Williams Pipeline Co., 315 NLRB 630 (1994); Meis-
ner Electric, Inc., 316 NLRB 597 (1995); Pergament United
Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir.
1990).
The criteria set forth in the above-cited cases have been sat-
isfied with regard to Respondent’s refusal to rehire Brian
Kendall. The violation is closely related because it is proxi-
mate in time to many other allegations in the complaint, includ-
ing those alleging the constructive discharge of Kendall the
month before. The evidence with regard to Kendall’s union
activities, Respondent’s knowledge of those activities and ani-
mus is the same evidence that supports complaint paragraphs
6(nn) and (oo). The only additional evidence is that pertaining
to Respondent’s refusal to rehire Kendall and the reasons for
that refusal.
I also conclude that the violation was fully litigated. Respon-
dent did not object to Kendall’s testimony regarding his efforts
to get his job back in May and Yellow’s response (Tr. 607–
614). Moreover, Respondent elicited a detailed explanation
from David Dinwiddie and Office Manager Debbie McDaniel
as to why Respondent refused to consider Kendall for re-
employment (Tr. 1704–1708, 1950–1959). Finally, Respon-
dent addressed the reasons it refused to rehire Kendall in its
posthearing brief at pages 103 and 110.
The Record Establishes that Respondent Violated Section
8(a)(3) in Refusing to Rehire Kendall
After he ceased working for Yellow on about April 9, Brian
Kendall worked 36 hours a week for a dialysis center until May
1999. Then he was laid off. In May, Kendall asked Respon-
dent to rehire him. Office Manager Debbie McDaniel told
Kendall that Respondent was trying to work mainly with full-
time employees and that part-time work would be somewhat
limited. She also told him that there were full-time positions
available. Kendall then filled out an application for such a
position and asked McDaniel to set up an interview with David
Dinwiddie. An appointment was made and then canceled by
Respondent. The interview was not rescheduled and Yellow
did not respond to Kendall’s employment application.
Respondent contends that Kendall is ineligible for rehire be-
cause he failed to comply with a company policy requiring
employees to give it 2 weeks’ notice before quitting. David
Dinwiddie testified that he apprised Kendall of this policy on
April 5, and the fact that he would be ineligible for rehire as a
result of his noncompliance. I do not credit Dinwiddie’s testi-
mony in this regard.
There is no reliable evidence that Respondent had a policy
requiring 2 weeks’ notice for either a resignation or a request to
switch to part-time status—other than the ad hoc determina-
tions made by Dinwiddie to get rid of union supporters. There
is also no evidence that Respondent had a policy requiring that
employees desiring a change from full-time to part-time status
fill out a new employment application. Certainly, Respondent
never widely communicated any such policies to its employees.
Indeed, even when it supposedly applied these policies to effec-
tively bar union supporters from future employment, Respon-
dent did not communicate them to other employees (Tr. 203–
204). In this regard I find that Dinwiddie did not tell Kendall
about the requirement of 2 weeks’ notice in April. The fact that
the documentation regarding this policy (R. Exh. 13) is dated a
week after Kendall’s last day of work and is not signed by
Kendall, leads me to credit his testimony in this regard over
that of Dinwiddie.
The fact that adverse personnel decisions were taken against
union supporters on the basis of policies of which they had no
prior notice is a strong indication of discriminatory motive,
Lowe’s Co., 266 NLRB 653, 654 (1983); Roadway Express,
Inc., 242 NLRB 716, 720 (1979). This is all the more true
since there is no indication that these policies were ever relied
upon to deny employment to persons who did not openly sup-
port the Union. Indeed, when employee Michael Obenhausen
quit, apparently due to anticompany comments by Darrell Lan-
caster, Respondent not only failed to apply the 2-week notice
rule, but encouraged him to retract his resignation (Tr. 1695).27

27 David Dinwiddie testified that Obenhausen quit (Tr. 154, 1695)
and told Lancaster that an employee “was resigning” (Tr. 1080). GC
Exh. 28, the written warning issued to Lancaster, states “Mr. Lancaster
[sic] crew partner resigned over the shift.” Dinwiddie’s inconsistent
testimony at Tr. 1798 is not credited.
Another indication of Respondent’s disparate application and en-
forcement of its alleged notice rule is Office Manager Debbie McDan-
iel’s testimony that, “Most usually, if they fail to give a 2-week notice,
they would not be subject to rehire (emphasis added) (Tr. 1951–1952).
YELLOW AMBULANCE SERVICE 825
Finally, I decline to credit Dinwiddie’s rationale for refusing
to rehire any employee who failed to give 2 weeks’ notice. He
testified that this failure caused Respondent to pay other em-
ployees overtime pay. Other than his bald assertion, there is no
evidence to support this proposition.28 The record indicates
that Respondent generally could replace its scheduled employ-
ees with part-time fill-in employees with very little advance
notice (see, e.g., Tr. 2021, 2049–2054). In summary, I con-
clude that Respondent’s refusal to rehire Kendall was discrimi-
natory motivated, I draw this inference from a variety of fac-
tors, including the pretextual nature of Respondent’s explana-
tion and the disparate treatment of Kendall as compared to
Michael Obenhausen.
The Discharge of Renee McKinney on February 23, 1999
Renee McKinney worked for Yellow Ambulance as a dis-
patcher and an EMT. She signed a union authorization card
and during the organizing campaign displayed a union sticker
on the back windshield of the vehicle which she parked at Re-
spondent’s facility. She also openly displayed a union coffee
mug in the dispatcher’s office.
On one occasion in February 1999, McKinney was using a
pen with the union logo to fill out an official run form. Russ
Walkosak took her pen and threw it on a table and said that he
wasn’t going to have any of that union shit around here.29
On Friday, February 21, 1999, McKinney was working in
the dispatch office. She learned that Carvella Coomes, an EMT
on light duty, had been assigned to work as the dispatcher the
next day, Saturday, February 22. McKinney volunteered to
work part of Saturday to assist Coomes. Lisa Byers, Respon-
dent’s dispatch supervisor, asked McKinney how long she
could stay. McKinney replied she could stay until 12 or 1 p.m.
Byers replied that however long McKinney could stay would
help Respondent out, so that Coomes would not be alone the
entire day.30

28 In the 2 weeks following Kendall’s resignation, his place on most
of his scheduled shifts was taken by David Walker, who was moved
from a BLS unit. Walker did not work the BLS shifts in addition to
what had been Kendall’s shifts (see GC Exhs. 6 and 14).
29 McKinney’s account of this incident is not contradicted by Walko-
sak. I also credit the uncontradicted testimony of Brian Kendall that in
February 1999, Walkosak put Kendall’s union coffee mug in the trash
and said that there was no reason for Kendall to bring union stuff into
the facility and “rub it” in Yellow’s face.
30 As noted previously, Lisa Byers, who still works for Respondent,
was not called as a witness. Brenda Thompson, another supervisor,
who worked in dispatch on February 19, did not testify about this con-
versation at all. I therefore credit McKinney’s uncontradicted account.
Instead of presenting witnesses with first-hand knowledge regarding
McKinney’s alleged commitment to work until 1 p.m., Respondent
relied exclusively on hearsay testimony from Director David Dinwiddie
(Tr. 1750–1751) and Senior Street Supervisor Bruce Nanney (Tr.
2047–2049). Indeed, even Dinwiddie’s testimony reflects uncertainty
about what Byers allegedly told him, e.g., “I think she said from 7:00 to
1:00 that’s what she told me.” (Tr. 1750, lines 11–13.) In the absence
of testimony from available supervisory employees with first hand
knowledge I decline to give any credit to Dinwiddie’s or Nanney’s
testimony as to whether McKinney committed to work until 1 p.m. In
the absence of such corroborating evidence, I also decline to give any
credit to testimony as to what Byers, Debbie McDaniel, or Carvella
McKinney reported to work on February 22, and shared the
dispatcher’s duties with Coomes. At about 11 a.m., paramedic
Danny Wilson, who was scheduled to work the night shift
(starting 11:30 p.m.) called to say that he could not come to
work because his child was ill. McKinney testified that she
wrote a note for supervisor Bruce Nanney, who was out of the
office on an ambulance run, and put it up on the wall. Nanney
did not get such a note.31 McKinney did not cross Wilson’s
name off the daily schedule. She clocked out at about noon but
stayed until 12:20 to assist Coomes. As a result of McKinney’s
failure to notify Nanney that Wilson was not coming to work,
Nanney stayed at work well beyond his scheduled departure
until a replacement for Wilson came to work.
On the afternoon of February 20, Nanney wrote up a disci-
plinary form suspending McKinney for 3 days. On the morning
of February 23, when McKinney arrived at work she was sum-
moned into David Dinwiddie’s office. Dinwiddie handed her
two disciplinary forms and an incident report and fired her.
Dinwiddie testified that he decided to terminate McKinney
because of the two incidents of misconduct by her on February
20. The next day, February 24, was the day of the NLRB rep-
resentation election. Rene McKinney attempted to vote but
was told by Russ Walkosak that since she was no longer an
employee she was not allowed in Respondent’s facility.
McKinney’s discharge must be considered in the light of Re-
spondent’s stated intention of terminating union supporters, its
motive in terminating her the day before the election, its failure
to adequately establish one of the proffered reasons for her
discharge and its demonstrated willingness to fire union sup-
porters, such as James Hardin (see below), for obviously pre-
textual reasons. Viewing the record as a whole, I conclude that
the General Counsel has established a prima facie 8(a)(3) and
(1) violation. Respondent has not satisfied its burden of prov-
ing that it would have terminated McKinney even if she had not
shown support for the Union.
For the same reasons that I affirm complaint paragraph 6(q)
regarding McKinney’s discharge, I affirm paragraph 6(p) re-
garding the two written warnings issued to her on February 23,
1999. I conclude that Respondent has not rebutted the General
Counsel’s prima facie case of discriminatory motivation for the
first warning (GC Exh. 51) alleging that she left work early.

Coomes told Dinwiddie and/or Nanney about McKinney agreeing to
stay until 1 p.m.
Finally, McKinney’s account of her conversation with Byers is more
logical than Respondent’s hearsay account. Coomes was to be working
in the dispatch office by herself from 1 to 6 p.m. Thus, it is difficult to
understand why it would have been so important to Respondent that
McKinney stay until 1 p.m. as opposed to leaving at noon.
31 In September 1998, McKinney and other dispatchers received a
memorandum from Lisa Byers which stated:
If someone calls off duty make sure you call me, if you are
unable to get me then go ahead and try to cover it by calling part
time employees and then check the schedule and find out who is
extra on any other shift and call them in instead of overtime. Or
contact shift supervisor [the last phrase is a hand-written addition
to the typed memo, [R. Exh. 26].
McKinney concedes that she did not attempt to notify Byers that
Wilson had called off duty and that she did not try to find a replacement
for him.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826
Respondent could have legitimately imposed a lesser form of
discipline on McKinney for failing to effectively notify Nanney
of Wilson’s absence. However, since the termination was in
part predicated on a prior discriminatory warning, it constitutes
a violation of the Act.
The Assessment of a $50 Charge for Employees Taking the
Transitional Course for EMTs
To maintain their state certification, all EMTs in Kentucky
were required to take a “transitional course” to update their
skills so as to meet certain national standards. In December
1998, Sherman Hockenberry announced to employees that this
course would be offered free of charge. Shortly thereafter,
Respondent posted a memo to that effect.
On February 25, 1999, the day after the Union won an over-
whelming victory in the NLRB representation election, Re-
spondent posted another memo informing employees that they
would have to pay Yellow Ambulance $50 each for the course.
The memorandum also advised employees that the course
would most likely be offered only once before the July 1999
state-imposed deadline for completing the course.32
Respondent offers no explanation for the suspicious timing
of the February 25 memo. However, David Dinwiddie testified
that the $50 charge was necessitated by the unavailability of
Yellow’s only in-house instructor. First of all, Respondent has
not established that the in-house instructor was not available
anytime between December 1998 and July 1999. More impor-
tantly, Terry Dossett’s testimony establishes that Dinwiddie’s
explanation for the $50 per student charge is pretextual.
Dossett obtained the services of Austin Riley to teach the
transitional course at Yellow. Riley charged Yellow $15 per
hour to teach this course. He was not reimbursed for any other
expenses. The course ran for 25 hours which means that it cost
Respondent $375 for Riley’s services.33 The only other ex-
pense to Yellow was for books and Respondent at no time justi-
fied the charge to employees on the basis of the cost of books.
Dossett testified that between 15 and 25 employees attended the
transitional course. This means that Respondent collected be-
tween $750 and $1250 from employees for the course, far in
excess of what it cost them to retain Austin Riley. On the basis
of the timing of the $50 charge and the pretextual nature of
Respondent’s explanation for it, I conclude that the $50 fee was
assessed in order to retaliate against employees for voting for
the Union.34 Therefore, I conclude that Respondent violated
Section 8(a)(3) and (1) as alleged in complaint paragraph 6(u).
Requirement for Employees to Sign a Document Promising to
Reimburse Respondent for Missing Company-Issued Clothing
Items (Complaint Pars. 5(gg), 6(t), (qq), and 7(q))
On February 25, 1999, the day after the Union’s victory in
the NLRB representation election, employees found a form
relating to company-issued coats, raincoats, and shirts in their

32 The course was apparently conducted in April 1999.
33 Dossett’s testimony indicates that Dinwiddie’s testimony at Tr.
321, that the instructor cost Yellow $800, is inaccurate.
34 Moreover, Cynthia Payne’s testimony that Supervisor Terry Dos-
sett told her that the charge for the course was the result of the union
election victory, is uncontradicted.
pay envelopes. The form states that the employees understand
that if they fail to return the items issued to them upon resigna-
tion or termination, the cost of these items will be deducted
from their last paycheck.
James Hardin, who had served as a union observer the day
before, did not sign the form he received. He listed the items
he had been issued on the form and wrote a note that he would
like to have prices on the items before he promised to pay for
them. Hardin then placed the form in a basket in the dispatch
office.
On March 8, Hardin was approached at lunchtime by Super-
visor Brenda Thompson. This was a few hours after Hardin
had an accident in the Owensboro hospital parking lot, for
which he was subsequently terminated on March 19 (see dis-
cussion below). Thompson presented Hardin with another copy
of the form and told him that David Dinwiddie had sent her to
find him and get him to sign the form immediately. Thompson
told him that if he did not sign the form he would have to turn
in all the clothing items he was issued and buy his own.
Respondent contends that in requiring Hardin to sign this
form, it was merely following a longstanding policy. I do not
credit this testimony. To the contrary, I conclude that the first
time these forms were issued was on February 25, and this was,
as alleged in complaint paragraph 6(t), another effort to com-
municate to employees that they would pay a price for voting
for the Union.
The General Counsel asked David Dinwiddie at one point
whether there were other such documents predating the one
signed by Hardin on February 25. Dinwiddie said there were,
but Respondent never produced any such documents. Addi-
tionally, I conclude that it is not a coincidence that Dinwiddie
demanded that Hardin sign the document a few hours after the
March 8 accident. It is another indication that Respondent was
intending to seize upon this accident as an excuse for firing
Hardin and that the testimony, that he was fired pursuant to a
nondiscriminatory deliberation by a safety committee in Louis-
ville, is completely fabricated.
While I affirm complaint paragraph 6(t), I dismiss para-
graphs 5(qq) and 6(qq), because there is no evidence that
Thompson threatened Hardin with discharge. I find it unneces-
sary to decide whether requesting employees to sign the form
also violated Section 8(a)(5) as alleged in paragraph 7(g), par-
ticularly since the issue was not briefed by any party.
Implementation of a New Dress Code
During the first week of March 1999, Respondent posted a
new dress and personal appearance code (R. Exh. 2) on the
employee bulletin board at its Owensboro facility, without pre-
viously notifying the Union or offering it an opportunity to
bargain.35 This dress code differed in a number of respects the
one previously in force pursuant to the Yellow Handbook (GC
Exh. 4). For example, it required male employees to have their
hair cut short enough that it would not touch their collar. Russ
Walkosak told paramedic Roger Brumley that he would have to

35 David Dinwiddie testified that R. Exh. 2 is a page out the standard
operating procedure. I am unable to find such a document in either GC
Exh. 3 or GC Exh. 5 and neither could Dinwiddie. I therefore conclude
the R Exh. 2 reflects a new policy initiated in March 1999.
YELLOW AMBULANCE SERVICE 827
get his hair cut to conform to new code or he would not be
allowed to work. When Brumley went to David Dinwiddie on
the matter, Dinwiddie told him he had to get his hair cut within
a few days.
The new dress code also prohibited the wearing of earrings
by male employees. Roger Brumley, who had worn an earring
in his left ear for some time, removed it to conform to the new
policy. With regard to outer clothing, the new dress code al-
lowed employees to wear sweaters or similar garments if they
were dark blue, approved by the Dinwiddie and had the Yellow
Ambulance patch sown onto them. The Yellow handbook,
which had in force previously, prohibited the wearing of civil-
ian clothing with any part of the company uniform. However,
this prohibition was not enforced.
Upon seeing the new dress code, Amy Brumley went to
Dinwiddie, asked him to approve her use of a hooded jacket
and offered to sew a company patch onto the garment. Din-
widdie denied her request without explanation. He has ap-
proved the use of similar garments by other employees for
whom there is no evidence of union support. As Respondent
has not offered a nondiscriminatory explanation for the imple-
mentation of the new dress code shortly after the Union’s elec-
tion victory, I conclude that Respondent violated Section
8(a)(3) and (1) both in implementing the dress code and in ap-
plying it to Amy Brumley.
Additionally, as alleged in paragraph 7(j) and 11 of the com-
plaint, Respondent violated Section 8(a)(5) and (1) in unilater-
ally implementing a new dress code without notifying the Un-
ion and offering it an opportunity to bargain over these
changes. The duty to bargain attaches, at least in the sense of
prohibiting unilateral changes, as of the election date, Celotex
Corp., 259 NLRB 1186, 1193 (1982). Since implementation of
a dress code is a mandatory subject of bargaining, Respon-
dent’s unilateral implementation of a new dress code after the
Union’s election victory of February 24, 1999, violated Section
8(a)(5) and (1), Transportation Enterprises, 240 NLRB 551,
560 (1979), enfd. in relevant part 630 F.2d 421 (7th Cir. 1980).
Respondent Freezes Wages Following the Election
(Complaint Paragraph 6(r))
In March 1998, Sherman Hockenberry met with new Yellow
employees, who had just transferred from the Owensboro hos-
pital EMS. He informed them that they would receive an
evaluation on the anniversary date of their hire and a raise,
depending upon the results of that evaluation.36 At least some
Yellow employees received such evaluations and prior to the
election some received wage increases. Following the election,
Respondent declined to give at least some employees an annual
wage increase and may have stopped giving annual evaluations
as well.37

36 I do not credit Kay Phillips’ testimony that employees were prom-
ised a 50- to 75-cent raise.
37 Amy Brumley, for example, asked for an annual evaluation, but
was never informed that one had been performed. GC Exh. 54 purports
to be such an evaluation performed by Supervisor Bruce Nanney. It is
not signed by Brumley and there is no indication on the face of the
document that she ever saw it.
An employer, who withholds pay raises from employees who
have chosen a union as their bargaining representative, violates
the Act if the employees otherwise would have been granted
the raises in the normal course of the employer’s business,
Florida Steel Corp., 220 NLRB 1201 (1975), enfd. 538 F.2d
324 (4th Cir. 1976); Choctaw Maid Farms, 308 NLRB 521,
527 (1992). I conclude that Respondent violated Section
8(a)(3) and (1) in denying wage increases to employees, who
would have otherwise received them, had not they selected the
Union as their bargaining representative.
The Discharge of Richard Turner
Richard Turner is a paramedic who worked for Yellow from
August 1997, when it purchased Arrow Ambulance, until
March 4, 1999, about a week after the election. During his
employment with Yellow, Turner was disciplined on a number
of occasions, including suspensions in July and September
1998.
Turner filled out a union authorization card and affixed un-
ion stickers to the back windshield of the vehicle he drove to
work. He used a coffee mug with a union logo on it in his am-
bulance at a time when his partner was a supervisor, Brenda
Thompson. In mid-November 1998, dispatch Supervisor Lisa
Byers warned Turner to be careful because his name came up at
a supervisors’ meeting as one of the employees the Company
was looking to get rid of because of the union campaign.38
At one point, Jason Tierney, then a Yellow supervisor, asked
Turner for some material about the Union and suggested em-
ployees put the organizing campaign on hold to give David
Dinwiddie a chance to straighten things out. Turner told Tier-
ney that he was not willing to do so.39
In February 1999, Turner was switched from the day shift to
night shift. He and his partner, Norman Byers, were scheduled
to work nine consecutive shifts (11 p.m. to 7 a.m.) beginning
February 24.40 David Dinwiddie testified that this schedule
was the result of inadvertence. I do not credit this testimony
because the only employees who were scheduled for nine
straight shifts were open union supporters; Turner, Norman
Byers, Kay Phillips, and Amy Brumley. Moreover, Turner
complained to supervisor Bruce Nanney about being scheduled
for nine straight nights (Tr. 1297). This conversation occurred
prior to March 4, the night Turner was fired. Despite this, un-
ion supporters Kay Phillips and Amy Brumley were scheduled
for nine consecutive nights on the schedule beginning March
14. In light of Nanney’s conversation with Turner, I conclude
this was not due to inadvertence. Rather, these employees were
scheduled for nine consecutive shifts to retaliate against them

Nancy Baker’s testimony that she received an excellent evaluation
from Lisa Byers is uncontradicted. Had Respondent not acted in a
discriminatory manner both Baker and Amy Brumley would have re-
ceived a raise, although it is not clear how much of a raise.
38 I credit Turner’s testimony regarding this conversation. Respon-
dent did not call Lisa Byers to refute his account.
39 Tierney is apparently no longer a supervisor, but still works for
Respondent as a rank-and-file employee. He did not testify at the hear-
ing.
40 February 24 was the day of the NLRB representation election.
The schedule was prepared by David Dinwiddie somewhat before that.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 828
for their union activities and to retrain, coerce, and interfere
with their statutory rights.41
At about 2 a.m. on his March 2–3 shift, Turner and his part-
ner, Todd Felker were in their ambulance at a spot designated
as post 4. Yellow’s dispatcher called them on the radio and
instructed them to move to a different location, designated as
post 10, because the ambulance at post 10 had gone to answer a
call.
Turner and Felker proceeded towards post 10 and radioed the
dispatcher that they were in the area. They then went to a
nearby park, which they were allowed to do.42 At about this
time, Director Dinwiddie and Supervisor Jason Tierney drove
out to the post 10 area looking for them. Dinwiddie told the
dispatcher to ask Turner for “his exact location.” After a very
brief delay and possibly a second call, Turner informed the
dispatcher that he was in the Kroger’s parking lot. When he
gave this information, Turner and Felker were not in the Kroger
parking lot but were on their way to the lot and were approxi-
mately one-fourth mile away. Dinwiddie and Tierney drove
into the Kroger lot and saw Turner and Felker arrive within
minutes or possibly seconds.
Normally, when an ambulance is called by the dispatcher,
they are sent on run or moved to a different location. After
getting the dispatcher’s call initiated by Dinwiddie, Turner and
Felker were told to return to Respondent’s facility where Din-
widdie interrogated them separately and had them draw maps
showing where they had been when the dispatcher called.
During his March 3 interrogation of Turner, Dinwiddie told
Turner that on February 21, Turner had not been at his post for
a period of 3-1/2 hours. Dinwiddie told Turner that on his next
shift he would have him sign a document stating that he would
let the dispatcher know of every move he made.43

41 The General Counsel alleged that the nine consecutive work days
(or nights) was an 8(a)(3) and (1) violation with regard to Byers,
Turner, Phillips, and Amy Brumley, see complaint pars. 6(s), (z), and
(hh). I affirm pars. 6(s) and 6(hh). Par. 6(z) is dismissed because
Byers did not work for Respondent after March 1.
42 At this time employees were allowed to “roam” within a distance
of 1-1/2 miles of their assigned post.
43 I credit Turner’s testimony over that of David Dinwiddie to the ef-
fect that Dinwiddie never talked to him about his conduct on February
21, until the morning of March 3. Dinwiddie’s account at Tr. 1656–
1657 is simply not consistent. Dinwiddie testified that the shift during
which he went to the Kroger parking lot was the shift immediately after
he told Turner he would have to let the dispatcher know of his where-
abouts at all times. As GC Exh. 14 shows, Turner worked a number of
shifts between February 21, and March 2–3. Moreover, given Respon-
dent’s newly imposed policy that all oral warnings would be docu-
mented, I conclude that the failure of Respondent to produce written
confirmation of an oral warning given to Turner after February 21,
establishes that no such oral warning was given to him and that Febru-
ary 21, was not discussed with Turner until March 3.
Turner concedes that he was not at his post for an extended period of
time on February 21. He was not required to be at his post. I credit his
testimony that no attempt was made to contact him on the ambulance
radio during this period. There is no contradictory evidence on this
issue.
Finally, Norman Byers, who was Turner’s partner on February 21,
was not disciplined for his conduct that evening. There is no evidence
that anyone ever discussed this matter with him.
After these interrogations, Turner and Felker completed their
shift. Later during the shift, or on his next shift, Turner saw
Jason Tierney at the OB ward at the Owensboro Hospital.
Tierney told Turner that the stricter requirements for notifying
the dispatcher of an employee’s location was a new policy that
would apply to everyone and that Turner should not worry
about it. Tierney said the policy was being implemented be-
cause Dinwiddie regarded the vote in favor of the Union to be a
personal slap in the face.
Turner worked a 16-hour shift from 7 a.m. to 11 p.m. on
March 4, 1999. At the end of the shift, Dinwiddie summoned
him into his office and fired him. The disciplinary form that
Dinwiddie read to Turner (R. Exh. 21) recited “Numerous inci-
dents in file. Oral warning on February 23, following the failure
to report to post for 3-1/2 [hours] on February 21. The numer-
ous occurrences of failure to post, delaying posting, improper
posting, and falsifying a report on posting has result [sic] in
termination.”44
I conclude that the stated reasons for Turner’s discharge are
pretextual. There is no indication that Turner’s failure to give
his “exact” location was a material violation of Respondent’s
rules—given the fact that he appeared in the Kroger parking lot
within a very short time of telling the dispatcher that he was at
Kroger’s. Moreover, his termination notice relies on an oral
warning which I conclude was not given to Turner and his ter-
mination occurred pursuant to Respondent’s stated intention of
looking for a way to get rid of him for union activity.45
Respondent’s Refusal, on March 12, 1999, to Allow Kay Phil-
lips and Cynthia Payne Permission to use a Bathroom Other
than the One at Hardee’s and Refusal of their Request to Take a
Lunchbreak46
On or about March 12, 1999, Kay Phillips and EMT Cynthia
Payne were working a 16-hour shift from 7 a.m. until 11 p.m.
Several hours into the shift one of them contacted the Yellow
dispatcher and requested to leave their post to use a restroom at
a gas station approximately a mile from their post. The dis-
patcher denied the request. After Phillips renewed her request,
the dispatcher instructed Phillips and Payne to use the bathroom

44 After Turner was discharged, he left Respondent’s office and went
to a gas station where he flagged down an ambulance operated by Kay
Phillips and Cynthia Payne. As soon as Phillips and Payne stopped to
talk to Turner, David Dinwiddie drove up. He screamed at Phillips and
Payne to get back to headquarters and not to talk about union business
on company time. Based on these facts, I find a violation of Sec.
8(a)(1) as alleged in complaint par. 5(pp)(ii). “An employer may . . .
lawfully forbid employees to talk about a union during periods when
the employees are supposed to be actively working, if that prohibition
also extends to all other subjects not associated or connected with their
work tasks.” However, when the employer’s rule, as promulgated or
enforced, only forbids discussion of the union, but allows discussion of
other nonwork-related subjects, the employer violates Sec. 8(a)(1),
Orval Kent Food Co., 278 NLRB 402, 407 (1986).
45 For the same reasons that I conclude that Turner’s discharge was
discriminatory, I conclude that the two written warnings issued to him
on March 4, 1999, violated the Act as alleged in complaint par. 6(w).
46 The alleged violation is addressed in complaint paragraph 6(cc).
Testimony regarding the incident appears at Tr. 511–516 (Phillips);
1124–1127 (Payne); and 1709–1713 (Dinwiddie).
YELLOW AMBULANCE SERVICE 829
at a Hardee’s restaurant. Phillips objected on the grounds that
the Hardee’s bathroom was filthy.
I credit Dinwiddie’s testimony that he denied the request be-
cause only one or two other ambulances were available to make
runs over contrary testimony by Phillips and Payne. I do so
because Phillips’ testimony makes clear that the dispatcher
denied their request even before she talked to Dinwiddie. I
infer that the dispatcher would not have done so if some ambu-
lances were not already on runs. There is no evidence as to
whether Phillips and Payne renewed their request after more
ambulances became available. I therefore am unable to con-
clude that Respondent denied the request to use the bathrooms
in order to retaliate against Phillips and Payne and therefore
will dismiss complaint paragraph 6(cc) with regard to this inci-
dent.
Phillips and Payne also allege that their requests to take a
lunch break the same day were denied until late in the after-
noon. Dinwiddie denies being aware of such denials. As there
is no evidence that the crew’s requests for lunch breaks were
denied pursuant to instructions from Dinwiddie or other man-
agement officials, I will dismiss paragraph 6(cc) in its entirety.
Allegations Pertaining to Dennis Wade in Complaint Paragraph
6(dd)(iii)
Dennis Wade, an EMT, was an open union supporter and
served as an observer for the Union during the February 24,
1999 election. For the schedule beginning March 14, a number
of employees, particularly union supporters, were placed on
different shifts than they had been working previously and were
assigned different partners.
Wade, who had been working on an ALS unit with Scott
Hedrick since May 1998, was assigned to a BLS unit, working
with Mike Durbin. BLS work is generally regarded as less
interesting and desirable than ALS assignments. On March 14,
Wade and Durbin were given a bucket of wax and were told to
use it to remove the Owensboro hospital logo from their ambu-
lance. They tried unsuccessfully to remove this logo with rags
for about 2 hours. Later, Respondent had its supervisors and
other employees remove or partially remove these logos from
several ambulances with a buffer. Wade was never assigned to
this task again.
Despite the numerous unfair labor practices committed by
Respondent, I decline to find that every unpleasant event or
undesirable change in the working lives of union supporters
was motivated by a desire to discriminate on the grounds of
union activity. Specifically with regard to Dennis Wade, I find
insufficient evidence of discriminatory motive with regard to
the waxing assignment and therefore dismiss that portion of the
complaint.
The Discharge of James Hardin
James Hardin began working as an EMT for Yellow in De-
cember 1997. He signed union authorization cards in July and
September 1998, displayed union stickers on the window of his
private vehicle and used pens and a coffee mug with the union
logo on them at work.
As discussed previously, in December 1998, Hardin received
an “oral” warning from Yellow for leaving trash and linen in
his ambulance. Shortly before the election, Hardin, Brian
Kendall, and Glenn Zogelman were told by Russ Walkosak
that, “if you think things are bad around here now, they are
going to get a lot worse . . . You all brought this on your-
selves.” Hardin served as a union observer for the first shift
during the February 24, 1999 representation election.
During his employment with Yellow, Hardin had two acci-
dents while driving his ambulance. The first occurred in Janu-
ary 1999. Hardin was assigned to pick up a patient at a hospital
in Greenville, Kentucky, approximately 50 miles from Owens-
boro. On the way back to Owensboro during an ice storm,
Hardin’s ambulance slid sideways while approaching a previ-
ous accident, bumped a guardrail and other cars. Hardin and
his partner called the Muhlenberg County ambulance service to
pick up the patient and return the patient to the hospital. Sev-
eral hours later Hardin was able to drive the ambulance back to
Owensboro.
When he returned to the Yellow facility, Hardin filled out an
incident report. A few days later he asked Russ Walkosak
whether he was going to be held responsible for the accident.
Walkosak told Hardin he would not be held responsible be-
cause the accident was weather-related.
On March 8, 1999, Hardin was leaving the parking lot of the
Owensboro Hospital in his ambulance. His partner, James
Dukes, was in the vehicle with him. Two parked ambulances
obscured Hardin’s vision and he ran into another vehicle com-
ing from the other side of the parked ambulances inside the
parking lot. The police report estimated Hardin’s speed at be-
tween 5 and 7 miles per hour and concluded that the other vehi-
cle had come to a stop just prior to the collision. The left front
of Hardin’s ambulance struck the right front corner of the other
vehicle and pushed it sideways. Hardin put his ambulance in
reverse gear and backed away from the other vehicle a few feet.
His vehicle was not moved again before the police and a Yel-
low supervisor arrived on the scene. The police report con-
cluded that damage to both vehicles was minor and Hardin
completed his work shift with the same ambulance.47
When James Hardin finished his shift on March 8, he filled
out a form entitled “Driver Statement” and turned it in to his
supervisor (GC Exh 35). On his next shift Hardin was asked to
complete another driver’s statement. The second form he com-
pleted differs from the first in that it contains the following
printed statement at the top:

This form is to be completed and turned in to the Louisville
Safety Officer on each accident/incident.

After hearing nothing about his accident for 11 days, Hardin
was called into a meeting with Russ Walkosak and Bruce Nan-
ney on March 19.48 Walkosak told Hardin that the company

47 At Tr. 1264, Respondent’s counsel read a portion of unemploy-
ment insurance referee’s decision to James Hardin, suggesting that the
March 8 accident had resulted in $1600 of damage to Hardin’s ambu-
lance and $2400 to the other vehicle. In fact, that portion of the refe-
ree’s decision (GC Exh. 40) refers to the January accident. I note,
moreover, that even with regard to the January accident, the damage
estimates are hearsay and are not, as far as I’m concerned, established
facts.
48 Dinwiddie testified that he was not at work on March 19, due to
illness.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
safety committee in Louisville had decided to fire him as the
result of the January and March accidents.
Hardin told Walkosak that under Respondent’s motor vehicle
accident procedure and point system (R. Exh. 1), which he had
received when he was hired, he had not been charged with a
sufficient number of points to warrant termination. Walkosak’s
response was that the decision to terminate Hardin was made
by the Louisville Safety Committee and/or Safety Director
Robert Jones. He avoided answering Hardin’s inquiries as to
how termination could be justified under the point system.49
The point system is geared to Yellow’s taxicab operation,
but is also applicable to the Owensboro ambulance drivers.
Indeed, Walkosak did not tell Hardin that it was inapplicable,
he basically told Hardin that he didn’t understand how it ap-
plied to his situation.50 The accident procedure and point sys-
tem specifies offenses for which a driver may be terminated: a
motor vehicle felony and driving under the influence/driving
while intoxicated; leaving the scene of an accident and failure
to report an accident. Otherwise the policy states that once a
driver has accumulated 40 or more points within a 2-year pe-
riod, that driver will not be allowed to drive a Louisville trans-
portation vehicle. However, drivers are to be offered the op-
portunity to reduce their accumulated points by attending a
driver improvement class.
There is no evidence that this policy was applied to James
Hardin. Indeed, there is no reliable evidence as to why Re-
spondent discharged Hardin, apart for retaliation for his union
activity. Sherman Hockenberry testified that he is a member of
the Louisville safety committee and that he was a member in
March 1999. Hockenberry testified that this safety committee
meets approximately once a month. When asked the number of
people on the safety committee in March and in November,
Hockenberry testified that he believed there were five, rather
than stating categorically that there were five members.
Hockenberry testified further that he attended a safety com-
mittee meeting in March 1999.51 According to Hockenberry,
this was the first meeting in a few months because the safety
director, Robert Jones, was new. Hockenberry was not sure as
to whether all the members of the safety committee were pre-
sent at the meeting. He testified that Jones made the determina-
tion that Hardin was at fault in the January accident and that it
was thus “chargeable.”52

49 GC Exh. 39 is a tape recording made by Hardin of the meeting at
which he was terminated.
50 David Dinwiddie also testified that the accident procedure and
point system were in effect when he took over the Owensboro facility
and that the safety committee assessed points against Respondent’s
drivers (Tr. 200).
51 Hockenberry answered affirmatively to Respondent counsel’s
question as to whether he attended a March 24 safety committee meet-
ing at which Hardin’s accidents were discussed (Tr. 1850). Obviously,
the committee could not have met to decide Hardin’s fate on March 24,
since Hardin was informed of his termination 5 days earlier.
52 Walkosak, on the other hand, testified that he made the determina-
tion that the March accident was Hardin’s second chargeable accident
(Tr. 1581). There is absolutely no documentation that anyone in Re-
spondent’s management made such a determination. Hockenberry at
Tr. 1853 testified that Jones relied on police reports of the first acci-
dent, which were not offered by Respondent.
Despite Hockenberry’s insistence that the January accident
was a factor in Hardin’s discharge, the only document relating
to his termination does not mention it (R. Exh. 26). Moreover,
I find Hockenberry’s testimony on this issue generally incredi-
ble—even as to what he heard Safety Director Jones say. After
describing Hardin’s March accident as a “head-on collision,” a
characterization for which there is no support, Hockenberry
testified that Jones had a great deal of concern about the differ-
ences between the first Hardin statement and the second.
Examination of these statements, (GC Exhs. 35 and 36), re-
veals no significant discrepancy. The second, executed at Re-
spondent’s insistence, is more detailed and may be inaccurate
in stating that the other vehicle was moving when Hardin hit it.
However, I simply do not believe that Respondent decided to
terminate Hardin due to any difference between the two docu-
ments.
Hockenberry also testified that Jones felt that Hardin was
trying to cover something up by moving his vehicle. I do not
believe that Hockenberry heard Jones say any such thing in as
much as there is no evidence to support such a conclusion.
Indeed, there is no evidence that Hardin violated any company
rule in moving his vehicle backwards, or that by doing so he
compromised either the police investigation or Respondent’s
investigation in any way.53
Finally, Hockenberry testified that the safety committee
agreed with Jones’ recommendation that Hardin be terminated.
Thus, the principal decision maker, according to Respondent,
was Safety Director Jones, who it did not call as a witness. No
adverse inference can be drawn from Yellow’s failure to call
Jones because he apparently left his employment with the com-
pany several weeks before the hearing in this matter, Reno Hil-
ton, 326 NLRB 1421 fn. 1 (1998); Goldsmith Motors Corp.,
310 NLRB 1279 fn. 1 (1993). However, given that the General
Counsel has made a prima facie case of discrimination under
the Wright Line doctrine, the failure to produce the official
responsible for Hardin’s termination is crippling, if not fatal, to
Respondent’s case, Christie Electric Corp., 284 NLRB 740,
784 fn. 137 (1987).
Respondent offered no explanation for its failure to call
Robert Jones other than the fact that he left its employment a
few weeks prior to November 2, 1999. This is a particularly
unpersuasive reason for not calling him in as much as the unfair
labor practice charge alleging that Respondent violated the Act
in discharging Hardin was filed on March 26. Thus, Respon-
dent appears to have had plenty of time to prepare its defense to
this charge while Jones was still in its employ. I give no cre-
dence for Respondent’s proffered explanation for the termina-
tion. Had it called Jones as a witness, he would, at a minimum,
have had to explain how Hardin’s termination was consistent
with Respondent’s motor vehicle accident procedures and point
system.
Also contributing to my conclusion that Respondent’s expla-
nation is pretextual, are the irregularities concerning Respon-
dent’s Exhibit 26, a memorandum from Safety Director Jones

53 R. Exh. 1 instructs employees not to move their vehicle from the
accident scene until instructed to do so by the police and/or safety
department. Hardin did not move his vehicle from the accident scene.
YELLOW AMBULANCE SERVICE 831
to Paul Powell, purporting to transmit the findings of the acci-
dent review Board. The memo is dated March 24, 5 days after
Walkosak terminated Hardin. Walkosak at the termination
meeting on March 19, told Hardin that he had been informed by
telephone of the safety committee’s decision. However, Re-
spondent waited until March 25, the day after the memo, to
inform Kim Childers that she was being suspended in accor-
dance with the findings of the safety committee. Leading me to
even greater skepticism as to the innocence of the procedure
followed in Hardin’s case is the following exchange I had with
Mr. Hockenberry:

JUDGE AMCHAN: Is the recommendation of the Safety
Committee final or does Mr. Powell have authority to im-
pose a different punishment?
THE WITNESS: It is only a recommendation commit-
tee. He has the authority to go higher or lower at his dis-
cretion.
JUDGE AMCHAN: Who communicates the decision of
the Safety Committee back to Owensboro?
THE WITNESS: Mr. Powell would communicate that to
me and I would communicate [with] them.
JUDGE AMCHAN: And what happened in Mr. Hardin’s
case?
THE WITNESS: I’m not sure if Mr. Powell communi-
cated to me or if he had Mr. Jones to (sic) but it was com-
municated to me and then I communicated it with them.

Tr. 1875–1876.

The fact that Powell, who had the final decision making-
authority, received a memo regarding the safety committee’s
deliberations 5 days after Hardin was fired, is one more factor,
in the absence of a sufficient explanation, that convinces me
that Respondent’s explanation for his termination is pretext.
Finally, there is a strong indication that accidents involving
Owensboro employees were only sent to the Louisville safety
committee in conjunction with, or after the NLRB representa-
tion election. There is no documentary evidence that any acci-
dents other than Hardin’s March accident and Kim Childers’
January accident were referred to this Committee. When
Walkosak and Dinwiddie were asked for the names of other
employees whose accidents were referred to the Louisville
safety committee they could not name any (Tr. 1553, 1607).
Renee McKinney backed an ambulance into the Yellow build-
ing on October 2, 1998, denting the vehicle. She was sus-
pended for a week by Lisa Byers. There is no evidence that her
accident was considered by the safety committee or safety di-
rector in Louisville.
Danny Jacobs ran off the road and into ditch while driving a
Yellow ambulance in 1998, resulting in a dented fender. He
submitted a report to the company safety director but does not
know whether this accident was considered by the Louisville
safety committee. There is absolutely no evidence that it was
so considered. Jacobs was not disciplined for this accident.54

54 Contrary to Walkosak’s suggestion to the contrary at Tr. 1610–
1611, Respondent’s point system in R. Exh. 1 applies on its face to
employees regardless of whether they are involved in an “accident” or
Similarly, Mike Lawson, an ambulance driver who apparently
never indicated support for the Union, backed into an aban-
doned car in January 1999. Although Walkosak testified that
he called the safety director to recommend that Lawson only be
sent to driver’s school, there is no reliable evidence that Law-
son’s accident or incident was considered by the Louisville
Safety Committee.55
I credit Childers’ uncontradicted testimony that when she
met with supervisor Bruce Nanney on January 30, 1999, he did
not mention the Louisville safety committee to her or tell her
that she would be disciplined by this committee for her acci-
dent. Moreover, I conclude, based on Childers’ testimony, that
the sentence fragment, “will send to Louisville Safety Director
for further,“ was added to General Counsel’s Exhibit 22 after
January 30.56
James Hardin’s discharge is the most obvious and blatant
statutory violation in this case. The General Counsel estab-
lished this violation by showing an advance indication of Re-
spondent’s intention to discharge union supporters, its extreme
hostility to the Union, and the contrasting treatment accorded
Hardin, on the one hand, and Mike Lawson and Daniel Jacobs,
on the other. The violation is also supported by the suspicious
delay in imposing any discipline for either accident, the depar-
ture from Respondent’s established procedures, the numerous
other unfair labor practices committed and the pretextual nature
of Yellow’s justification of the discharge.
The March 15, 1999 Written Warning Issued
to Darrell Lancaster
On March 15, David Dinwiddie summoned Darrell Lancas-
ter, an open supporter of the Union, into his office. Dinwiddie
told Lancaster that an employee was resigning due to things
Lancaster had said to the employee and that if this occurred
again, Lancaster would be fired. Dinwiddie then gave Lancas-
ter a written warning (GC Exh. 28), for publicly criticizing
Respondent. There is no evidence in the record as to what Lan-
caster said to the employee, Ambulance Driver Michael Oben-
hausen (Tr. 1079–1083, 1694–1695).
Given the context of this case, it is fair to assume that Lan-
caster said something to Obenhausen that was critical of Re-
spondent with regard to wages or working conditions. Unless
his statements were “so offensive, defamatory or opprobrious”
as to remove them from the protection of the Act, Respondent
violated Section 8(a)(1) and (3) in disciplining Lancaster, KBO,

“incident.” R. Exh. 26 also states that in March the safety committee
considered both accidents and incidents.
55 Walkosak testified that Lawson was not disciplined other than be-
ing sent to driving school. The contrast in the discipline meted out to
Hardin and Kim Childers, active union supporters, with the kid gloves
treatment of Lawson and Jacobs also suggests pretext with regard to
both Hardin and Childers. Childers, who was a union steward for a
month during the organizing campaign, was suspended for 1 day and
sent to driving school for an accident that is very similar to Lawson’s.
56 My conclusion in this regard is based in part on the fact that Nan-
ney testified after Childers and was not asked about the circumstances
under which Childers’ accident was referred to the Louisville safety
committee. Given the obvious irregularity in the procedure suggested
by Childers’ testimony, it was incumbent upon Respondent to explain
how and when this occurred.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
Inc., 315 NLRB 570 (1994).57 As there is no evidence that this
was the case, I find a violation as alleged in complaint para-
graph 6(ii).
Respondent Violated Section 8(a)(1) and (3) in Suspending
Kim Childers on March 25, 1999
As discussed previously, on January 30, 1999, EMT Kim
Childers, an open union supporter, backed into another ambu-
lance inside Respondent’s facility. She should have had an-
other employee act as a spotter when operating the vehicle in
reverse. Supervisor Bruce Nanney told her that since there
were no other incidents in his personnel file there would be no
further action taken.
Almost 2 months later, David Dinwiddie called Childers into
his office and suspended her for 1 day, purportedly for the
January 30 accident. For a variety of reasons, I conclude that
the suspension was imposed in retaliation for Childers’ union
activities and/or to restrain, coerce, and interfere with the Sec-
tion 7 rights of Childers and other employees. First of all, the
suspension is inconsistent with Respondent’s accident proce-
dures and point system. Under those procedures it appears that
Childers would have been assessed only 10 points, as opposed
to being suspended. Secondly, Respondent’s disparate treat-
ment of Childers, compared with Mike Lawson, who had a very
similar accident at about the same time, also indicates discrimi-
natory motive.58
The reasons advanced for Childers’ suspension are pretextual
for much the same reasons as I found the reasons for the Hardin
discharge pretextual. There is no explanation for Respondent’s
change of heart from Nanney’s statement that Childers would
not be disciplined.59 Moreover, the delay between Childers’
accident and the suspension is highly suspicious—particularly
in view of the Union’s election victory in the interim. More-
over, there is no evidence as to the basis on which Respondent
concluded that suspension was an appropriate punishment.
I have previously discussed the irregularity surrounding the
referral of Childers’ and Hardin’s case to the Louisville safety
committee. Assuming this committee met on their cases, its
deliberations were infected by the desire of Jeff Mackin and/or

57 Respondent’s handbook, cited by the Company in its warning to
Lancaster, may also violate the Act if it purports to prohibit critical
statements by employees that are not so offensive, defamatory or op-
probrious as to remove them from protection of the Act, Flamingo
Hilton-Laughlin, 330 NLRB 287 (1999); Southern Maryland Hospital
Center, 293 NLRB 1209 (1989).
58 R. Exh. 26 indicates that several other employees or lease-holding
cab drivers also received 1-day suspensions for accidents similar to
Childers’ accident. However, the document is hearsay with regard to
establishing the reasons for the discipline imposed on all the employees
listed on it. Moreover, in the absence of first-hand testimony explain-
ing how R-26 is consistent with R. Exh. 1, I conclude that R. Exh. 26
has no probative value with regard to establishing a nondiscriminatory
motive in suspending Childers. For one thing, it is possible that a sus-
pension could be justified for other employees, who may have had
previous accidents, but could not be justified for Childers.
59 In this regard, Russ Walkosak testified that he “probably would
have forwarded the information [regarding Childers’ accident] to Lou-
isville” (Tr. 1584). There is no evidence as to when this occurred.
Paul Powell to find whatever excuse it could to get rid of union
supporters.
The Constructive Discharge of Vicky Belcher
Vicky Belcher began working as a part-time ambulance
driver for Respondent in March 1998. She signed a union au-
thorization card in November and indicated her support for the
Union to her partner, Supervisor Brenda Thompson, in Decem-
ber. In April 1999, the Union filed unfair labor practice charge
Case 25–CA–26532, which included an allegation that Supervi-
sor Bruce Nanney wrote Vicky Belcher up for her union affilia-
tion and/or concerted protected activity.60
Up until the schedule for the period ending May 15, 1999,
Belcher had worked two 16-hour day shifts with 2 days in be-
tween. For the period beginning May 16, Belcher was sched-
uled in a more irregular pattern. She went to David Dinwiddie
and told him that the new pattern created babysitting problems
for her. Dinwiddie was unreceptive to her concerns but asked
her if she wanted to become a full-time employee. Belcher
asked him what hours would she be working; Dinwiddie said
she would have to work whatever hours he deemed necessary.
After meeting with Dinwiddie, Belcher called him to ask
why James Dukes, who was also a part-time employee, was
still working the same hours as he had on previous schedules.61
Dinwiddie refused to discuss Dukes’ schedule with her.
Belcher called Lisa Byers and told her that she would not ac-
cept full-time employment. Dukes also apparently declined
full-time employment. Belcher was not listed on the schedule
beginning June 6, 1999; neither was Dukes.
In July 1999, Dinwiddie asked Belcher to come to the Yel-
low facility to discuss her schedule. He declined to return her
to the schedule that she worked prior to May 15. Belcher asked
why James Dukes was working in accordance with his previous
scheduling pattern. Dinwiddie again refused to discuss Dukes’
schedule.
Beginning with the schedule starting July 18, James Dukes
became a full-time employee working essentially the same
schedule he had been working prior to May 15. His earlier
work schedule had been Sunday and Saturday the first week of
the schedule; Tuesday and Friday, the second week of the
schedule and Monday and Thursday, the third week of the
schedule. His new schedule differed from the old one, only in
that he worked Sunday and Wednesday the first week of the
schedule, instead of Sunday and Saturday. His workdays in the
second and third weeks of the schedule were identical to old
schedule (GC Exh 14).
Respondent’s explanation for the disparate treatment of
Dukes, for whom there is no evidence of union support, and
Belcher, is that in May, Dinwiddie told part-time employees
that they would have to commit to 36 hours a week in order to
be full-time employees. Dinwiddie further testified that the day
before Dukes accepted full-time employment, Tony Colletta,
Yellow’s human resource director, called him and told him that
an employee only needed to work 32 hours a week to be con-
sidered full-time. I do not credit this testimony. For one thing,

60 This allegation is not contained in the complaint.
61 Dukes has a full-time job which limits his availability to work for
Respondent.
YELLOW AMBULANCE SERVICE 833
Respondent’s counsel never asked Belcher if she had been told
that 36 hours was a prerequisite for full-time employment.
Secondly, there is no evidence that Dinwiddie informed
Belcher in July that she could be a full-time employee if she
was willing to work 32 hours a week.62
I conclude that Respondent constructively discharged Vicky
Belcher by refusing to return her to her previous schedule, by
taking her off its work schedule because she did not accept full-
time employment and by failing to offer her full-time employ-
ment on the same terms as James Dukes. I draw this inference
from the disparate treatment of Belcher, compared to Dukes,
together with the evidence indicating the lengths to which Re-
spondent was willing to go to rid itself of union supporters.
The fact that Dukes, apparently not a union supporter, also
suffered a loss of wages, does not negate a finding that Re-
spondent acted out of antiunion animus towards Belcher. I
have considered Dukes’ fate in light of all the other unfair labor
practices committed by Respondent, the unfair labor practice
charge filed on Belcher’s behalf, and the convenient discovery
that Dukes could be a full-time employee while working the
schedule he had worked as a part-time employee. In this light,
I conclude the loss of work and wages suffered by Dukes was
intended to mask Respondent’s unlawful conduct with regard to
Belcher, Heartland of Lansing Nursing Home, 307 NLRB 152–
153 (1992).
The June 1, 1999 Discharge of Roger Brumley
Paramedic Roger Brumley and his wife, Amy, had union
stickers on their private vehicles for a short time in December
1998, until they were advised by Russ Walkosak that they
should remove them. After the Union’s election victory, in
March or April 1999, they put union stickers back on the vehi-
cles. However, on February 24, Roger and Amy Brumley were
Union observers at the ballot counting. In April 1999, Brumley
was elected union shop steward; it is unclear as to whether
Respondent was aware of this prior to his discharge.63
At 11:30 p.m. on May 30, 1999, Brumley and his partner,
EMT Kim Childers returned to Respondent’s facility at the end
of their shift. They then proceeded to the dispatcher’s office to
get the times and mileage for their ambulance runs. Each had
separate information to obtain, which they used to enter onto an
official report.
Most often the dispatcher has a card with the relevant infor-
mation. On May 30, the dispatcher, Holly Hill, had a card for
Childers but not for Brumley. He proceeded to enter the dis-
patch office through an open door, sat down at one of the three
computers for 3—5 minutes and obtained his times and mile-

62 In July, Belcher provided Dinwiddie with the list of days for
which she was available to work for Yellow in August and September.
The pattern on this list is very similar to the schedule she worked prior
to May 15 (R Exh. 6). Through August 20, however, her list indicates
availability only for 7-1/2-hour blocks due to prior commitments to
another job.
63 At some point after the election, a list of union officers was posted
on a bulletin board at Respondent’s headquarters; it is not clear when
this occurred (Tr. 860).
age.64 Neither Hill nor Jerry Bradley, who was also in the
dispatch office, made any attempt to prevent him from doing
this or said anything to him about it.65
On June 1, Brumley was summoned to a meeting with David
Dinwiddie and other supervisors. Dinwiddie said Brumley had
been seen with another employee’s run report. Brumley denied
having anyone else’s report.66 Then Dinwiddie asked Brumley
if he had touched the computer in the dispatch office. Brumley
said he did and Dinwiddie told him he was fired.
Above the door to the dispatch office was a sign reading
“Restricted Area.” Prior to May 30, employees were told that
only supervisors and dispatchers were allowed in the dispatch
office. A memo may also have been circulated to this effect.
However, this rule was never, or almost never, enforced. Em-
ployees, who were neither dispatchers nor supervisors, rou-
tinely entered the dispatch office (e.g., see Tr. 1664–1665).
When some of the dispatchers wanted to take a bathroom break,
they would ask a rank-and-file employee to watch the dispatch
office for them.
Even after a “Restricted Area” sign was posted over the dis-
patch office door, employees had to enter the dispatch area to get
equipment. In April 1999, Dinwiddie took the equipment out of
the dispatch area and put up a new sign. However, nonauthor-
ized employees continued to routinely enter the dispatch area.
According to Dinwiddie, the problem is “quite a bit better. It’s
still an issue we’re constantly addressing” (Tr. 1666).
Dinwiddie asserts that he has told supervisors that they could
be disciplined for allowing unauthorized employees to use the
computer. However, there is no evidence that he has done so,
even with regard to Jerry Bradley, who was present when
Brumley entered the dispatch office on May 30, and either was
a supervisor or was himself unauthorized to be in the office.
Although there is no evidence that Respondent knew of other
nonauthorized employees who used the dispatch computer,
there is also no evidence that Respondent ever communicated
to rank and file employees that this was a serious violation of
company policy.
To the contrary, employees were constantly receiving mixed
messages from Respondent regarding the sanctity of the dis-
patch office. Daniel Jacobs’ memorandum of his comments to
employees on November 25, 1998, several months after he had
posted a restricted area sign over the door of the dispatch of-
fice, states:

Congregating needs to stop in the communications center and
the accounting office. Employees are to go into dispatch to
get their radio, keys, or other information needed and imme-
diately exit . . . [emphasis added]. R. Exh. 26.67

64 The computers were already on. Brumley did not have a password
to start them up.
65 Bradley may have been an assistant supervisor at the time. It has
not been established whether or not he was authorized to be in the
dispatch office.
66 GC Exh. 58, a May 30 incident report from Holly Hill, indicates
that Dinwiddie had no grounds for this accusation.
67 These notes were posted at Respondent’s facility for employees to
read and were distributed to employees who were unable to attend the
meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834
I conclude that the General Counsel has established a prima
facie case of discriminatory discharge with regard to Roger
Brumley and that Respondent has not met it burden that his
discharge would not have occurred absent his union activity.
Given Respondent’s stated intention of getting rid of union
supporters and its demonstrated willingness to use virtually any
excuse to do so, I infer that union activity was at least a signifi-
cant factor in the decision to terminate Brumley. Additionally,
Respondent was aware that nonauthorized employees routinely
entered the dispatch office and with the exception of Brumley,
apparently didn’t discipline anyone for violating its rules.
Moreover, in the absence of evidence that Respondent make
it clear to employees that it considered it a serious violation of
its rules for an employee to get his or her times and mileage off
the computer, I conclude that it had a discriminatory motive in
firing Brumley. Indeed, Brumley’s conduct appears to be con-
sistent, or at least not inconsistent, with the instructions in Ja-
cobs’ November 1998 memorandum.
Additional Allegations with Regard to Amy Brumley: (Com-
plaint Pars. 6(rr) and (ss))
Amy Brumley sustained a work-related injury in March
1999. She was put on light duty by a physician. However, she
did not work for 5 weeks because Respondent contends that no
light duty work was available for her. Brumley returned to
work on April 27. At this time she presented Respondent with
her physician’s statement that she was able to return to her
former duties. Respondent did not challenge her entitlement to
work, and she did so without objection for 5 weeks.
On June 2, the morning after Respondent fired her husband,
Amy Brumley was handed a form by Office Manager Debbie
McDaniel and was told to sign it. The form (GC Exh. 47), is
entitled “Workers’ Compensation Agreement and Stipulation.”
Brumley was asked to confirm that she had “fully and com-
pletely resolved” from her March 25 injuries and that she was
able to perform her duties. The form also stated that she “re-
leased Respondent as a result of her injuries.” McDaniel told
Brumley that she had received a call “from Louisville” inform-
ing her that Brumley should have signed this document when
she returned to work.
Brumley said she was not comfortable signing the document
and that she wanted to take it to the State of Kentucky workers
compensation office for review. McDaniel then took the form
into David Dinwiddie’s office. Shortly thereafter, Bruce Nan-
ney came out of Dinwiddie’s office and told Brumley that
Dinwiddie had decided that she would pick up trash outside of
Respondent’s offices rather than take a nursing home patient to
Bowling Green, Kentucky, as previously scheduled. Amy
Brumley picked up trash and cleaned restrooms until she left
work for a previously scheduled dentist’s appointment at noon.
The next morning, June 3, McDaniel informed Brumley that
she had been told by Paul Powell, that Brumley could not work
until she signed the workers compensation release. Brumley
left and took the form to the workers compensation office for
review. The Owensboro workers compensation office sent the
form to headquarters in Frankfort. On Saturday night, June 5,
Supervisor Terry Dossett called Brumely and told her she could
not work her shift scheduled for the next day unless she signed
the form. Brumley did not work Sunday.
On Monday, Brumley called David Dinwiddie to question
why Respondent was demanding that she sign the form after it
allowed her to work for 5 weeks without it. Dinwiddie called
her back, told her that this was a longstanding procedure, that
others signed the form and then hung up on Brumley.
On Wednesday, June 9, Dispatch Supervisor Lisa Byers called
Amy Brumley and told her that Respondent needed her to come
into work on Thursday. Brumley asked Byers about the workers
compensation form and told her that she was still not comfortable
signing it. Byers told her that “I was told that, if you asked about
it, you don’t have to sign that thing now” (Tr.1459). Amy Brum-
ley returned to work on Thursday morning.
I conclude that the General Counsel has established a prima
facie case of discrimination. From the timing of both alleged
violations, on the day after Respondent unlawfully fired Roger
Brumley, I infer that Respondent was attempting to encourage
Amy Brumley to quit or react in a way that would give it an
excuse to fire her.
I find Respondent’s explanation of its refusal to allow Brumley
to work to be completely incredible. I do not believe that after 5
weeks, it suddenly discovered that Brumley had not signed this
form on June 2, and that she could not work without it. Despite
Dinwiddie’s bald assertions that others had signed the form, Re-
spondent did not introduce any such forms, and failed to establish
that as fact. Yellow’s explanation for why it discovered after a
week that Brumley could work without signing the form is also
incredible. I conclude that Respondent violated the Act as al-
leged in complaint paragraphs 6(rr) and (ss).
Summary of Conclusions of Law
The complaint alleges over 50 8(a)(1) violations and a simi-
lar number of 8(a)(3) and (1) violations. There are also more
than 15 8(a)(5) allegations. Some of these allegations are du-
plicative and some of them appear to have been abandoned,
either by virtue of the fact that there is no evidence in the re-
cord to support them or because they were not argued in the
briefs. Additionally, there are a number of allegations, which
are rather tangential to the case, for which I conclude the evi-
dence is not sufficiently credible to find a violation.
A. With regard to the 8(a)(1) violations in paragraph 5:
1. 5(a) is dismissed on the grounds that I decline to conclude
that Russ Walkosak’s interrogation of Chris Embry was coer-
cive.
2. 5(b) is dismissed because the evidence supporting it is in-
sufficiently credible.
3. 5(c) is affirmed because Lisa Byers’ remarks to Richard
Turner violate the Act regardless of their friendly intent.
4. 5(d) referring to Walkosak’s initial inquiry to employees
regarding the Union is affirmed.
5. 5(e) regarding Walkosak’s discussions with Norman
Byers and Kay Philips in their ambulance is affirmed.
6. 5(f) is dismissed.
7. 5(g) is dismissed.
8. 5(h) is affirmed for the same reasons as 5(c).
9. 5(i) regarding Daniel Jacobs’ comments to Norman Byers’
about Kay Phillips being a troublemaker is affirmed.
YELLOW AMBULANCE SERVICE 835
10. 5(j) is dismissed.
11. 5(k) is dismissed.
12. 5(l) is dismissed.
13. 5(m) is dismissed.
14. 5(n) is dismissed.
15. 5(o), regarding Bruce Nanney’s discussion with James
Hardin about all warnings now being is writing, is affirmed.
16. 5(p) is dismissed.
17. 5(q), regarding Nanney’s discussions with Cynthia Payne
regarding “no more oral warnings,” is affirmed.
18. 5(r), regarding James Hardin’s tape recorded conversa-
tions with Sherman Hockenberry, about documenting all disci-
plinary actions, is affirmed.
19. 5(s) is dismissed.
20. 5(t)(i) and (iii), regarding Walkosak’s discussions with
the Brumleys, is affirmed. 5(t)(ii) is dismissed.
21. 5(u), regarding Walkosak’s discussions with Chris
Embry after Embry had been fired, are affirmed.
22. 5(v), based on Jacobs’ conversation with James Hardin
regarding surveillance by Russ Walkosak, is affirmed.
23. 5(w) is dismissed.
24. 5(x), predicated on Walkosak’s discussions with Brian
Kendall, is affirmed.
25. 5(y) is dismissed.
26. 5(z) is dismissed.
27. 5(aa), predicated on conversations between Walkosak
and Jeffrey James, and between David Dinwiddie and Jeffrey
James, is affirmed.
28. 5(bb) is dismissed.
29. 5(cc) is dismissed.
30. 5(dd)(ii), predicated on Brenda Thompson’s discussion
with Vickie Belcher, is affirmed. 5(dd)(i) is dismissed.
31. 5(ee) is dismissed.
32. 5(ff) is dismissed.
33. 5(gg), based on Walkosak’s statements regarding Renee
McKinney’s union pen, is affirmed.
34. 5(hh), based on a discussion between Russ Walkosak and
James Hardin, Brian Kendall, and Glen Zogelman is affirmed.
35. 5(ii), based on a discussion between Walkosak and Brian
Kendall, is affirmed.
36. 5(jj) is dismissed.
37. 5(kk), based on Walkosak’s refusal to allow Renee
McKinney, to vote in the representation election, after she had
been unlawfully discharged, is affirmed.
38. 5(ll) is dismissed.
39. 5(mm)(i) is affirmed. 5(mm)(ii) is dismissed.
40. 5(nn)(i) regarding Jason Tierney’s discussion with Rich-
ard Turner about the union victory is affirmed. 5(nn)(ii) is
dismissed for the same reasons as paragraph 6(m).
41. 5(oo) is dismissed.
42. 5(pp)(i) is dismissed. 5(pp)(ii) is affirmed as discussed
in a footnote to the discussion of Richard Turner’s discharge.
43. 5(qq) is dismissed.
44. 5(rr) is dismissed. For one thing, there is no credible
evidence that Respondent ever used seniority in making work
assignments.
45. 5(ss)(i), regarding David Dinwiddie’s discussion of
wages with Nancy Baker, is affirmed. 5(ss)(ii) is dismissed.
46. 5(tt) is dismissed.
47. 5(uu) is dismissed.
48. 5(vv) is affirmed based on David Dinwiddie’s March 15,
1999 threat of discharge to Darrell Lancaster.
49. 5(ww), based on Dinwiddie’s discussion of wages with
Kurt Stumpf, is affirmed.
50. 5(xx) is dismissed.
51. 5(yy) is dismissed.
52. 5(zzz) is dismissed.
53. 5(aaa) is dismissed.
54. 5(bbb) is dismissed as being duplicative of 6(ss), which
is affirmed.
B. With regard to the 8(a)(3) and (1) violations alleged in
paragraph 6 of the complaint, they are all affirmed as discussed
herein, except for the following: subparagraphs 6(b), (f), (m),
(o), (v), (z), (aa), (bb), (cc), (dd)(iii), (ee), (ll)(ii), and (mm).
C. With regard to the 8(a)(5) and (1) violations alleged in
paragraph 7 of the complaint.
1. 7(e) is duplicative of 6(r), which has been affirmed. 7(e)
is dismissed because it is unnecessary to decide whether Re-
spondent’s policy also violated Section 8(a)(5).
2. 7(f) is dismissed as these assignments were made before
the Union became the bargaining representative of Respon-
dent’s employees.
3. 7(g) is dismissed. It is duplicative of 6(f) which has been
affirmed and it is therefore unnecessary to determine whether
Respondent also violated Section 8(a)(5).
4. 7(h) is dismissed for the reasons set forth above; it is du-
plicative of 6(u), which has been affirmed.
5. 7(i) is duplicative of 6(v) which has also been dismissed.
The General Counsel has not established a unilateral change of
policy following the election.
6. 7(j) is affirmed, even though it is duplicative of 6(y) be-
cause the unilateral implementation of a new dress code after
the election clearly violates Section 8(a)(5).
7. 7(k) is dismissed because the General Counsel failed to
establish that seniority was ever used by Respondent to deter-
mine shift, partner and work assignments.
8. 7(l) is duplicative of paragraph 6(dd), which has been af-
firmed as an 8(a)(3) and (1) violation. The General Counsel
has not established an 8(a)(5) violation as well.
9. 7(m) is dismissed for the same reasons; it is duplicative of
6(pp).
10. 7(n) is dismissed for the same reasons; it is duplicative
of 6(ff).
11. 7(o) is dismissed; it is duplicative of 6(hh).
12. 7(p) is dismissed; an 8(a)(5) violation has not been es-
tablished.
13. 7(q) is dismissed due to a lack of convincing evidence.
Remedy
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Because of the Respondent’s egregious and widespread mis-
conduct, demonstrating a general disregard for the employees’
fundamental rights I find it necessary to issue a broad Order
requiring the Respondent to cease and desist from infringing in
any other manner on rights guaranteed employees by Section 7
of the Act. Hickmott Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]