Metro Ambulance Service, Inc.

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metro Ambulance Service, Inc. and Retail Clerks Union, Local No. 73, affiliated with United Food & Commercial Workers International Union, AFL-CIO-CLC, Petitioner' Case 16- RC-7964 May 2, 1980 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on October 24, 1979, before Hearing Officer Paul Blackwell. Following the hearing, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Employer and the Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that no preju- dicial error was committed. They are hereby af- firmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer, a private Georgia corporation, operates ambulance services in several Georgia communities. As a result of competitive bidding, Metro was awarded a 3-year contract with the Emergency Medical Service Authority (hereafter EMSA) 2 to provide all ambulance services in the city of Tulsa, Oklahoma, beginning October 1, 1978. The EMSA is directed by nine trustees. Two city officials, the commissioner of fire and police and the commissioner of revenue and finance, are designated trustees under the terms of the trust in- denture. The remaining seven trustees are appoint- ed by the Mayor of Tulsa with the approval of the city commission.3 The trustees in turn employ an executive director and an assistant director who ad- minister the trust and oversee the operations of the contractor-employer. The EMSA determines the rates to be paid for ambulance and related emergency services and is responsible for billing customers. The EMSA also owns all ambulances operated by Metro. While Metro provides around-the-clock ambulance serv- ice, operating usually from four locations, it does i The name (of the Petitioner appears as amended at the hearing. 2The EMSA is a public trust established under Title 60 of the Oklaho- ma Code Under the terms of the trust indenture, EMSA's purpose is to assist the city of Tulsa operate an emergenc medical services system ' All trustees serve *without pay. 249 NLRB No. 8 not control dispatch of the ambulances. Dispatch- ing is done from the city's emergency center, from which police and fire calls are also handled. Ambu- lance dispatchers, however, are Metro employees. The EMSA's enabling ordinance 4 also provides for the creation of a Physicians Advisory Board (PAB), which is composed of seven licensed physi- cians, four of whom are engaged in the practice of emergency medicine in the Tulsa area. A related entity also created by the ordinance is the Emer- gency Physicians Foundation (EPF). Composed of a group of physicians who are on call to provide advice and instruction to Metro paramedics han- dling emergency cases in the field, the EPF's re- sponsibilities include formulating, with PAB ap- proval, medical protocols to be used by Metro em- ployees. These protocols provide written directions for handling various medical emergencies. The or- dinance also requires EMSA to monitor daily the patient care that is administered by Metro employ- ees to Tulsa residents. The EPF is also responsible for testing prospective Metro employees to deter- mine if they are qualified as paramedics. An appli- cant passing the test is then certified as an emer- gency medical technician (EMT). Without this cer- tification, Metro may not hire a person to provide medical care.5 The Employer contends that the Board does not have jurisdiction in this proceeding because the degree of control exercised over its employees by the Tulsa City commission, the EMSA, and the EPF precludes any meaningful collective bargain- ing with the Petitioner. The Employer also asserts that its business affairs are so controlled by the city of Tulsa, and related entities, that it is a joint em- ployer with the city and should share the exemp- tion of a political subdivision within the definition of Section 2(2) of the Act. We find the Employer's position unpersuasive. As indicated, Metro provides all ambulance serv- ices for Tulsa in accordance with its contract with EMSA. This contract was entered into after EMSA determined that tie Employer had submit- ted the best bid proposal in response to the "Bid Package" that EMSA had extended to prospective contractors. The duties, requirements, and responsi- bilities of the prospective contractor-employer which the "Bid Package" describes in detail are in- corporated by reference into the contract signed by EMSA and Metro. In operating its ambulance serv- ice, it is apparent, therefore, that the Employer's relationship with the EMSA and related entities is essentially a contractual one, and their respective 4 Chapter 13, Title 17, of the ulsa Revised Ordinances is entitled "Ambulance System Code' 5 Sec 505 of the ordinance requires that at least two EMTs accompa- ny every ambulance run. METRO AMBULANCE SERVICE, INC. 229 rights and obligations are specified by written agreement. Although the EMSA's trust indenture and the ordinance prescribe necessary guidelines and standards under which the Employer provides its services, it is our judgment that the Employer's control over employees on a day-to-day basis is not significantly affected. The Employer has the authority to hire, fire, and discipline the employees who drive ambulances. Metro alone contacted prospective employees, in- terviewed them, and then offered employment to certain applicants who passed certification tests. 6 Although the EMSA makes general recommenda- tions regarding discipline in certain situations, its primary concern is the quality of patient care. The Employer retains the ultimate authority for deter- mining what disciplinary action will be taken. The Employer also schedules holidays, establishes sick leave policies, and grants time off. Subject only to the contractual provision requiring the minimum manning of ambulances, the Employer schedules hours and work shifts. While the contract specifies certain minimum salary levels and fringe benefits, the actual wage rates and fringes to be paid to em- ployees is solely the Employer's responsibility. 7 In light of the foregoing, we conclude that the role of the EMSA, its allied organizations, and the city of Tulsa in the Employer's operations does not relieve the Employer of its effective control over employment conditions. Rather, it is evident that the Employer has retained virtually full control over matters affecting wages, hours of employ- ment, and working conditions, so that it is capable of engaging in meaningful collective bargaining. 8 6 The "Bid Package" states that it is the responsibility of the employer- contractor to "supply all . . . operational personnel, including drivers, paramedical personnel, control center personnel, and supervisors, as nec- essary to 'get the job done."' I The Employer is paid a monthly fee by EMSA with the city of Tulsa making up any deficit between operating income and EMSA's cost of op- erating. 6 See National Transportation Service. Inc., 240 NLRB No 99 (1979). The parties stipulated that, during the past year, the Employer had gross revenues exceeding $500,000. The Employer also purchased goods valued in excess of $50,000 from suppliers located within the State of Oklahoma who, in turn, pur- chased goods from sources outside of Oklahoma. We find that it will effectuate the purposes of the Act to assert jurisdiction here. 2. The parties stipulated, and we agree, that the Petitioner is a labor organization within the mean- ing of Section 2(5) of the Act. 3. A question affecting commerce exists concern- ing the representation of employees of the Employ- er within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(c) of the Act: All regular full-time, and regular part-time emergency medical technicians and appren- tices who are employed by the Employer in Tulsa, Oklahoma, excluding all other employ- ees, including office clerical employees, guards and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] MEMBER PENELLO, dissenting: I would not assert jurisdiction over this Employ- er because it provides vital municipal ambulance service to the city of Tulsa, Oklahoma. See my dis- sents in National Transportation Service, Inc., 240 NLRB No. 99 (1979), and Nichols Sanitation, Inc., 230 NLRB 834 (1977). The EMSA's executive director, Steve Williamson, admitted that the Employer is responsible for the "personnel function," including the hiring, firing, supervising, and scheduling of its employees