Piner's Napa Ambulance Service

PINER’S NAPA AMBULANCE SERVICE 352 NLRB No. 74 609 Napa Ambulance Service, Inc., d/b/a Piner’s Napa Ambulance Service and Rebecca Rosecrans. Case 20–CA–32875 May 30, 2008 DECISION AND ORDER BY CHAIRMAN AND MEMBER LIEBMAN On December 20, 2006, Administrative Law Judge James M. Kennedy issued the attached decision. The General Counsel filed exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief. The National Labor Relations Board1 has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,2 and conclusions and to adopt the recommended Order as modified. 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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. In the absence of exceptions, we adopt the judge’s findings that the Respondent violated Sec. 8(a)(1) of the Act by issuing a written verbal warning to employee Rebecca Rosecrans on August 22, 2005, because of her union activities and because the Respondent equated union talk with activities prohibited by other Federal laws. In adopting the judge’s findings, we find it unnecessary to reach the issue of whether the Respondent’s conduct also violated Sec. 8(a)(3). Finding the 8(a)(3) violation would not materially affect the relief ordered as a result of the 8(a)(1) violation. See, e.g., Industrial Hard Chrome, 352 NLRB No. 47, slip op. 1, fn. 2 (2008). In adopting the judge’s finding that the Respondent did not violate Sec. 8(a)(3) and (1) by issuing Rosecrans a warning on April 4, 2005, for engaging in loud, nonwork-related conversations, we assume ar- guendo that the General Counsel met his Wright Line burden. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Nevertheless, we find that the Respondent would have disciplined Rosencrans in any event, because her loud conversations interfered with the work of other employees. In adopting the judge’s finding that the Respondent did not violate Sec. 8(a)(3) and (1) of the Act by terminating Rosecrans, we do not rely on his statement that “the first crack in [Rosecrans’] reputation” oc- curred in 2004, when she wrongly accused Pruett of lying. That state- ment is not supported by the record. Further, in finding that the termi- nation of Rosecrans did not violate the Act, we do not rely on the judge’s alternative finding that Rosecrans would have been fired even without the Respondent’s rule on honesty. The Respondent did not present this argument before the judge, nor does it ask us to adopt his ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge, as modified below and orders that the Respondent, Napa Ambulance Service, Inc., d/b/a Piner’s Napa Ambulance Service, Napa, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). “(a) Within 14 days from the date of this Order, re- scind and remove from its files any reference to Rebecca Rosecrans’s August 22, 2005 unlawful warning, and within 3 days thereafter, notify her in writing that this has been done and that the warning will not be used against her in any way.” 2. Substitute the attached notice for that of the admin- istrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD And Agency of the United States Government The National Labor Relations Board had 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 a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection finding in this regard. See, e.g., Allied Mechanical Services, 346 NLRB 326, 328 (2006); White Oak Coal Co., 295 NLRB 567, 569–570 (1989). Finally, in adopting the judge’s finding, we have considered the General Counsel’s exception to the judge’s failure to address evi- dence of disparate treatment. The General Counsel argues that the testimony of Valerie Davis, who testified that she received a written verbal warning for dishonesty in 2002, and of Hope Pruett, who testi- fied that she received a written warning for dishonesty in 2004, estab- lishes that Rosecrans’ termination was the result of disparate treatment. We disagree. The record evidence establishes that the Respondent concluded that Pruett had, in fact, not been dishonest. As to Davis, the record evidence establishes that, although Davis may have dishonestly called in sick in 2002, she, unlike Rosecrans, did not abandon her shift. Further, the General Counsel did not establish that the Respondent’s rule on dishonesty (pursuant to which Rosecrans was terminated) or any comparable rule was in place in 2002. Accordingly, we find that the General Counsel has failed to establish that Rosecrans was treated disparately. The judge inadvertently stated that the Respondent terminated Rose- crans on September 30, 2005. The parties agree, and we find, that Rosecrans was terminated on August 30, 2005. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610 Choose not to engage in any of these protected activities. WE WILL NOT issue you warnings because of your ac- tivities on behalf of the National Emergency Medical Services Association or any other labor organization. WE WILL NOT you that protected union activity is pro- hibited by other laws. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL within 14 days, rescind and remove from our files any reference to our August 22, 2005 unlawful warning to Rebecca Rosecrans, and within 3 days there- after, notify her in writing that this has been done and advise her that the warning will not be used against her in any way. NAPA AMBULANCE SERVICE, INC. D/B/A PINER’S NAPA AMBULANCE SERVICE Christy J. Kwon and Cecily A. Vix, for the General Counsel. Patrick W. Jordan (with Nanette Joslyn on brief), San Rafael, California, for Respondent. DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge. This case was tried in San Francisco, California on August 14–18, 2006, based upon a third consolidated complaint issued May 31, 2006, by the Regional Director for Region 20. The original unfair labor practice charge was filed by Rebecca Rosecrans, an individual, on February 2, 2006, and amended on February 22. The case had been consolidated with Cases 20–CA–32497, 20– CA–32693, and 20–CA–32965, all filed by the National Emer- gency Medical Services Association (the Union). On August 18, 2006, the Union withdrew its charges and asked that the corresponding portions of the complaint be dismissed as the parties had signed a collective-bargaining contract. I granted that motion. The remainder of the complaint, based on Rose- crans’ charge, alleges that Napa Ambulance Service, Inc., d/b/a Piner’s Napa Ambulance Service (Respondent) violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act (the Act).1 Respondent’s answer denies the pertinent allegations remaining in the complaint. Issues The principal issues are whether Respondent disciplined and subsequently discharged Rosecrans because she was a Union activist. Warnings were issued to her on April 4, 2005,2 August 22 and 30. She was also discharged on August 30. Respon- dent asserts that the warnings and the discharge were for good 1 The case has therefore been recaptioned. Nothing in the settlement precludes me from utilizing evidence adduced in the course of the hearing even if it was advanced in support or in defense of the other cases, so long as it has relevance to the extant case. 2 All dates are 2005, unless otherwise indicated. cause, i.e., that they were connected to Rosecrans’ behavior as an employee and had nothing to do with the fact that she was a known union activist. The parties were given full opportunity to participate, to in- troduce relevant evidence, to examine and cross-examine wit- nesses, to orally argue and to file briefs. The General Counsel and Respondent have both filed briefs which have been care- fully considered. Based upon the entire record of the case, as well as my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION According to the pleadings, Respondent is a California cor- poration having its headquarters in the city of Napa from which it operates an emergency ambulance and paramedic service in several Napa County communities. It admits that during the calendar year 2004, in the course and conduct of its business, it provided services valued in excess of $50,000 to the United States Government, to the State of California, and to private businesses, which in turn meet one of the Board’s standards for the assertion of jurisdiction on a direct basis. During the same time period its gross volume of business exceeded $500,000. Accordingly, it admits it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It further admits the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Some Preliminary Matters Given the withdrawal of the Union’s charges and the dis- missal of its portion of the complaint, discussion of the Rose- crans matter necessarily reaches back into the organizing drive and shifts those events into background, even if not directly connected to her.3 These include: Rosecrans’ participation in the organizing; preelection warnings to other union activists; an April warning to Rosecrans arising from complaints by co- workers about her; a similar warning in August; some issues arising from a July memo prohibiting Rosecrans and fellow dispatchers from turning off the telephone tape recorders; as well as the events of August 20 which all arose from Rose- crans’ inability that day to come to work, the event which trig- gered her discharge, and an additional issue concerning turning off the tape recorders. 3 Respondent filed a motion to strike portions of the General Coun- sel’s brief as they adverted to matters raised by the Union’s charges. As I am considering those only for purposes of background, the motion is denied. Nevertheless, I am not considering fact patterns previously alleged to be 8(a)(5) violations, such as breaches of unilaterally im- posed rules and subsequent discipline to be evidence of union animus as might support an 8(a)(3) violation. While those changes may have violated the Act had they been litigated, they are based on the breach of a legally imposed duty (i.e., the 8(d) obligation to bargain in good faith). The failure to meet such a requirement is not the same as the deliberate interference with an individual employee’s Sec. 7 rights such that it can be used as an element of Sec. 8(a)(3). In other words, it cannot be used as the sort of animus which can support a discharge independent of Sec. 8(a)(5). PINER’S NAPA AMBULANCE SERVICE 611 Background; Preelection Matters The Union, the National Emergency Medical Services Asso- ciation (NEMSA), began its organizing in early 2005. It filed its NLRB election petition on February 28. The election was conducted on April 15; the Union won, and on May 2 was certi- fied as the exclusive collective-bargaining representative of Respondent’s ambulance drivers and dispatchers. Although the administrative employees worked in close physical proximity to the dispatchers in Respondent’s administrative/accounting of- fice, the administrative employees were excluded from the voting/bargaining unit and were not a part of the organizing. The administrative office is located on the same grounds as several other Piner’s businesses in Napa. These include a nurs- ing home, a retirement residence, a health care supply center, a welding shop, and a bicycle shop. The administrative office, sometimes referred to as the accounting office, is a small struc- ture, a closed-in carport, approximately 17’ x 17,’ adjacent to the nursing home. That small space is further subdivided to house the dispatch office. Dispatch is in a corner behind a two- wall partition which does not extend to the ceiling; its door is always open. The nondispatch portion of the floor is so small that office staff schedules must be staggered so the desks can be shared. There were four full-time dispatchers. Each worked a 12- hour shift. Day dispatchers worked from 7 a.m. to 7 p.m. The night dispatchers worked from 7 p.m. to 7 a.m. Rosecrans, for example, worked the daytime hours on 1 weekend day and Mondays, Tuesdays, and alternate Wednesdays. The other day- shift dispatcher was Donavan Balsley who worked Thursdays, Fridays, 1 weekend day, and the other alternate Wednesdays. The night dispatchers worked similar schedules; they were Hope Pruett and Andrea Gurule. The weekends seemed to vary a little more as relief dispatchers would often take one of those four shifts. A 48-hour workweek was common. Balsley had become lead dispatcher in 2004. As the lead dis- patcher, he was responsible for putting the schedule together for each month, in charge of their training and served as the point man for questions, including equipment repair. There is a small dispute, unnecessary to resolve, concerning whether he was also the person the on-duty dispatcher should notify in the event the arriving shift dispatcher called to advise he or she couldn’t get to work for some reason. There was also a stand- ing procedure whereby open shifts were to be offered to off- duty dispatchers on a seniority basis.4 The office manager and company controller was, and is, Geri Bise. She has worked for the Piner’s companies for almost 20 years. In that capacity she was Balsley’s (and the dispatchers’) direct supervisor, though she did not carry out that responsibil- 4 Balsely is alleged in the complaint to be a supervisor within the meaning of Sec. 2(11) of the Act. As will be seen, it is unnecessary to making any finding about that. His duties, as described do not require a finding that he is a supervisor. See Dean & Deluca New York, Inc., 338 NLRB 1046, 1048 fn. 15, (2003), citing Jordan Marsh Stores Corp., 317 NLRB 460, 467 (1995) (individual who directed, assigned, and made up the work schedules of employees was found not to be statutory supervisor). ity in a hands-on manner. In large part the dispatchers required little oversight. They were a responsible group. Bise came to work each day at 4 a.m. and worked till about 2 p.m. Others who worked in the accounting office were: Cheri Blaylock, the bookkeeper; Ed Herrera, the bill collector; Sherine Purdey, an administrative assistant; and Melanie Go- mez, the ambulance billing clerk. Gomez came to work in the afternoon and worked into the evening; she was, as Purdey observed, a part-time worker. Herrera commonly served as a relief dispatcher. In August, Balsley began training Gomez and Meleah Mahoney to become relief dispatchers.5 Finally, the general manager until midsummer was Chris Piper, a long-term executive. He resigned abruptly and was replaced in July by Jeremy Piner, the owner’s son. Previously the manager of the bicycle shop, Jeremy became both Respondent’s acting general manager and its operations manager. Bise and the other de- partment heads began reporting to him at that point. He still held both jobs when he testified. The corporate president is Gary Piner. Rebecca Rosecrans Rebecca Rosecrans has been a dispatcher for Respondent since 2001. There is no dispute that until April 2005 she had been an excellent employee, even being named employee of the year in 2002. Geri Bise held her in generally high esteem. In 2004, the first crack in that reputation occurred when Rosecrans wrongly accused her friend Pruett of lying about the reason Pruett had given for an absence (car repair issues v. home refi- nance meeting). When Bise issued Pruett a warning about it, she learned that someone had likely misspoken. She didn’t revoke the warning to Pruett, but was nevertheless left to won- der whether Rosecrans had provided accurate information. Despite Rosecrans’ report, Pruett and Rosecrans maintained their personal friendship. In March, or at least “at all material times” according to a stipulation of fact, Respondent became aware of Rosecrans’ organizing activities: “At all material times Respondent had knowledge that Rebecca Rosecrans, Hope Pruett, and Craig Pitcher6 were the leaders of the Union organizing campaign, and Respondent also had knowledge that they were engaged in union activities.” In mid-March, according to Rosecrans, Bise and others who worked in the office began giving her the silent treatment. Bise denies it, saying that on one occasion Rosecrans seemed upset about something and when she inquired, Rosecrans told her she didn’t want to talk to anyone, “. . . [S]he hadn’t slept well. Didn’t feel that good. Just didn’t want to talk. . . .[T]he very next day I went back into the dispatch office with the same comment. And she said she just didn’t want to talk and to leave her alone.” So from then on, Bise did so. Even assuming Rosecrans should be credited over Bise, there is no evidence 5 Gina Peterson (from the ambulance side) and Gloria DeLuna (whose regular job is not clear from the record) also served as relief dispatchers. As with DeLuna, Mahoney’s regular job cannot be deter- mined from the record. Purdey, too, said she had trained as a dis- patcher. 6 Pitcher was an ambulance crewmember. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612 that this silent treatment had anything to do with her union activities. April Warnings In early April, General Manager Chris Piper observed em- ployee Dustin McNabb talking on his cellular phone while driving one of the ambulances in a nonemergency mode. Piper instantly called the ambulance on his Nextel walkie-talkie cell phone, spoke to McNabb’s partner Craig Pitcher and told them to stop it. A few days later he had a conversation with Pitcher to the effect that it was against the rules to have a personal cell phone in the ambulance. Pitcher, who says Piper told him it was a “coach counseling,” did not agree that there is such a rule. The employee manual is subject to different interpreta- tions. At pages. 55–56 it says: “Employees may not carry per- sonal pagers or personal cell phones on their persons while on duty, to prevent interference with patient care or other respon- sibilities. Personal pagers or cellular phones. . . . may be kept in quarters or onboard company vehicles. Cellular phones, either personal or company, may never be used [w]hile driving a company vehicle.” The General Counsel cites this incident as evidence of union animus. And it is true that Pitcher was a union activist. Yet, there is good reason to doubt that this is evidence of animus. First, there is no doubt that it is against the rule to drive an am- bulance while talking on a cellular phone. That is what Piper called about, for he had seen the driver doing it. There is no evidence one way or another regarding whether he had recog- nized the driver as McNabb; he undoubtedly knew he had spo- ken to Pitcher. Second, there is no evidence in Pitcher’s per- sonnel file of any discipline, assuming “coach counseling” is the first step in the progressive disciplinary system.7 It seems to me that if it were a warning of any type which required a record be kept, one would have been. As I view it, this “coach counseling” is nothing more than ordinary supervision— nothing more than a supervisor explaining the proper manner in which an employee is to conduct himself. It is not a warning at all. And certainly some sort of reminder needed to be made, even if Piper cited part of the rule incorrectly or spoke to the wrong employee (and who is to say that McNabb didn’t receive a similar lesson? No party inquired one way or the other). The important thing was to remind ambulance personnel that talking on a cell phone while driving was not allowed. Common sense, even without the rule, dictates the same. Finally, there is no connection whatsoever to Pitcher’s union activities in Piper’s admonishment. It does not constitute evi- dence of union animus and certainly has no bearing on what happened to Rosecrans 6 months later. Not every chewing out, even those which are in part erroneous, is discriminatory. Both Pitcher and McNabb together comprised the ambulance crew. McNabb clearly erred when he spoke on his cell phone while driving. Piper was right to be concerned and to mention it to 7 It is not. The progressive discipline system is found on p. 44 of the employee manual. It describes “verbal counseling” as the first step. The forms used in the system do not include, as an option, “verbal warning”’ The first choice is “warning,” followed by “suspension” and then “dismissal.” Under the rules it would appear that a verbal warning would be recorded and maintained in a file for future reference. the more senior employee. His commentary amounted to noth- ing insofar as the disciplinary system was concerned. Pitcher may have thought the criticism unfair and perhaps it was, but it did not interfere with anyone’s Section 7 rights. It therefore does not qualify as animus which might inform us about what happened later to Rosecrans. On April 4, 10 days before the NLRB election, Bise issued a “white slip” to Rosecrans. None of the “warning” boxes was checked and it may be reasonably assumed that this was a ver- bal warning, rather than a written one. It described Rosecrans’ “ongoing” behavior which had begun on March 18, was re- peated on March 21, and occurred again in early April. Bise cited as witnesses and complainants the three office employees, Blaylock, Herrera, and Gomez. She said: “Complaints have been stated by several employees, these complaints being brought to my attention individually. The statements are of nonwork-related conversations at the dispatch window often loud and very disturbing to their productivity. Also of extreme rudeness when asking a workrelated question.” Rosecrans wrote on the slip: “I do not agree. I have been given the silent treatment for well over 3 weeks now by Geri and most of the acctg office staff.” The mere fact of this warning, supported by the presumably valid complaints of the three office workers does not establish union animus. It is in no way connected to Rosecrans’ union activity. Contrary to Bise’s note, the loudness appears to have been work related—usually shouting through the outside win- dow to drivers, according to Gomez. Bise had reason to believe the three office employees and Rosecrans’ response was not a denial. She offered no contrary version. The “silent treatment” response did not address her coworkers’ complaint. On April 14, the day before the representation election, paramedic, Valerie Davis and her ambulance partner, Steve Dykstra were pulling the 8 a.m. to 8 p.m. shift at the St. Helena station. After performing their routine duties, at about 9:30 that morning Dykstra retired to the back room and took a nap. Similarly, Davis fell asleep in the front room reclining chair while watching television. Both should have remained awake as it was a daytime shift. They were awakened by loud knock- ing. Davis answered the door to find General Manager Piper, accompanied by a female high school student who was partici- pating in a “shadow” program where students follow a worker during their day; this day the student was shadowing Piper. He was discomfited to find Davis, at least, sleeping and wearing her T-shirt, not the company uniform shirt, which was hanging on the recliner. Piper made a short comment to her about being out of uniform, quickly showed the student around the station and then left. On April 17, Ambulance Supervisor Jason Bond, per Piper’s instruction, issued Davis a verbal warning for being out of uniform on April 14. The General Counsel observes that Davis was one of the members of the union organizing committee, but that her part- ner Dykstra was not. Dykstra was not disciplined, but accord- ing to Davis, Dykstra, unlike her, was wearing his uniform shirt, even though it was unbuttoned. From that circumstance the General Counsel asserts that union animus may be inferred. I do not agree. Davis was in fact out of uniform; Dykstra was not. Furthermore, Piper said nothing to her at the time to sug- PINER’S NAPA AMBULANCE SERVICE 613 gest that discipline was forthcoming. The election was sched- uled for the next day. Had Piper wished to coerce Davis, he would have taken steps before the election itself. In any event, it is not a type of animus which suggests that Respondent is willing to discharge an employee for antiunion purposes. Moreover, a postelection warning such as this would not have accomplished such a coercive aim. It was clearly aimed at her appearance, nothing more. Accordingly, I do not find Piper’s verbal warning to be of any significance under the Act.8 I therefore find that the April incidents have no bearing on what occurred in August. July–August; Events Leading to Rosecrans’ Discharge The Union was certified as the exclusive collective- bargaining representative on May 2. Negotiations began on July 20. Rosecrans attended all but one of those meetings and served as the Union’s recording secretary for the purpose of keeping the Union’s negotiation minutes. Similarly, her co- worker and friend, night dispatcher Hope Pruett, also attended the meetings as a bargaining committee member. As co- workers on 12-hour shifts they regularly relieved one another. Usually a shift change involves an update concerning the previ- ous shift’s events and it was not uncommon for them to con- verse about nonbusiness matters of mutual interest. Since both were on the Union’s bargaining committee, one of their usual topics was what had transpired during any negotiation session which both had recently attended. These discussions often took place in the dispatch office or in the doorway leading to it. This meant that their conversation was audible to those ac- counting office employees who happened to be present. Some- times those conversations seemed to disturb those workers, as had occurred in April, resulting in a warning to Rosecrans. At 7 p.m., on August 16, another conversation took place at that location. This resulted in Melanie Gomez complaining to Geri Bise that the conversation had been loud, about the Union, and disruptive to her. Gomez’ complaint asserted that the con- versation was not work related and lasted for some 45 minutes. On August 22 Bice and Jeremy Piner met with Rosecrans. During the meeting, Bice issued a white slip to Rosecrans con- cerning the incident, saying: “[It] has been reported once again that loud & disruptive conversation is taking place in the of- fice/dispatch area. Hope reported to work and punched in at 7 p.m. The conversation unrelated to the shift change began. You punched out at 7:15, creating double time. Melanie was subjected to very uncomfortable non work related conversation. She confronted me on Wed. in tears stating she did not wish to work in the office when only Rebecca was present. This is not acceptable behavior on your part.” Gomez’ handwritten report about the incident focused both on Rosecrans’ voice volume and on the subject matter, the un- ion negotiation meeting: “On Aug. 17 ‘05 I had witnessed an employee Rebecca Rosecrans talking loudly to Hope Pruett 8 That there is testimony that Respondent’s enforcement of the uni- form policy was inconsistent, at least when the drivers were waiting at station, is insignificant. Piper was undoubtedly embarrassed to find one of his drivers out of uniform during the daytime while showing the business off to an outsider, even if it was a high school student. Davis did not present the image Piper expected to see. about the union meetings that had gone on during that day since Hope was one of the attendants. For approximately 45 minutes they proceeded to talk loudly about the union and issues that were discussed during that meeting, making it very uncomfort- able for me. During this 45 minutes I became very uncomfort- able and unproductive, and was ready to walk out early. I fin- ished my shift and the next day in tears spoke to Geri about the situation and how uncomfortable I felt the previous day.” None of the discipline boxes in the August 22 form was checked, and it would appear that this, like the previous one, was regarded as a verbal warning. Pruett, however, was not disciplined for the incident. It would appear that she escaped because Gomez was principally complaining about Rosecrans and Pruett was not implicated in a late punchout resulting in overtime pay. In addition, according to Rosecrans, Jeremy Piner remarked during the meeting that he equated speaking about the Union at work as the equivalent of sexual harassment and he wouldn’t stand for it. Piner did not offer a denial of her evidence. Rose- crans’ testimony: Q. BY MS. KWON: Okay. Tell us what you said to Geri, and what Geri said to you. A. (WITNESS ROSECRANS) I told her that I did not re- member the conversation, but that Hope and I talked on a regular basis at shift change and other times. I did ask to see the supporting document. I asked to have a copy of it, but I was not given a copy of it. At that time Jeremy Piner spoke up and said that talk- ing about sensitive subjects such as the union in the office was distressing to others in the office. That it was the same as sexual harassment. That it was against federal law and they wouldn’t stand for it. I’d already been—I’d already had one warning for this that was not resolved, and here we are with another one. [Emphasis added.] Aside from Piner’s injection, which carries legal conse- quences, there are at least two suspicious factors here. The first is why Gomez made any complaint at all. Gomez says she said nothing to either Rosecrans or Pruett to interdict the situation “Because I know Hope, and I knew that both Hope and Re- becca were big union supporters and they were very intimidat- ing and since it was two of them against just me, I didn’t want to cause any disruption.” Gomez would have us believe that she is easily upset by matters relating to the Union and that her coworkers are intimidating, principally due to their being mid- dle-aged. Why that would be so eludes me. If she had some strong objections to labor unions, e.g., a religious reason or some negative past experience, it seems to me that it would have been presented. Beyond that, the Union’s presence at the Company did not affect her; she was not part of the vot- ing/bargaining unit. It wasn’t her concern. As matters stand, Respondent simply observes that Gomez burst into tears when making her complaint to Bise and was too weak to have taken matters into her own hands by telling the two conversants that they were interfering with her work. It’s a simple matter for one employee to tell another to “keep it down; I’m trying to work here,” yet Gomez, who is 28 years old, somehow couldn’t find the gumption to speak up in her DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614 own interest.9 She became tearful far too readily for an adult. So the question is whether Gomez has made a legitimate com- plaint about disruption (Gomez’ description of a 45-minute conversation, denied by Rosecrans, seems somewhat contrived) or whether she simply can’t abide the Union’s presence even though it will have no impact on her. The second suspicion arises from Bise’s approach to Gomez’ complaint. Bise never asked Rosecrans for her version of what had happened that evening. Her first discussion with Rosecrans about the incident was during the meeting where she gave Rosecrans the warning, nearly a week after it happened. More- over, Bise was very careful to couch her warning to Rosecrans in neutral terms. The subject matter of the Rosecrans-Pruett conversation was what had taken place at the negotiation ses- sion. That, of course, was protected union talk. The warning, supposedly, is not for the discussion’s subject matter, but for the volume of Rosecrans’ voice and for its length as well as the additional pay obligation. Bise knew the exchange was about union business, but focused on Rosecrans’ loudness, not the substance of the discussion. Given the fact that she did not question Rosecrans about the incident, but simply took Gomez’ word, I am uncomfortable with her approach. Rosecrans had generally been an excellent employee and Gomez was known to be hypersensitive. There was good reason for Bise to be more thorough than she was. Even if Bise knew Rosecrans didn’t want to talk about social matters and was reluctant to speak to her, Gomez’ complaint transcended that small hurdle and Bise’s failure to cross it must be a fact-finder’s concern. There is a small discrepancy with dates here. Gomez says the incident occurred on August 17, which was a Wednesday. That would mean it occurred during the 7 p.m. shift change that day. Yet she dates her report August 17, after testifying that she came back to the office early the following morning to complain to Bise—who usually came to work at 4 a.m. Bise gave her the form, so it should have been dated August 18. Curiously, however, the dispatcher work schedule, found in Respondent’s Exhibit 3, shows that Rosecrans did not work on Wednesday that week, probably because it was not her Wednesday. She did work on Tuesday, August 16, which is the date Bise used in the disciplinary report. So when did this inci- dent occur? It was not on August 17 as Gomez says. Did Go- mez wait a full day before reporting it? Or did she mistake the 16th for the 17th? After August 16, Rosecrans was not scheduled to work again until the August 20, the fateful Saturday, so Bise’s seeming delay in delivering the warning is in fact unremarkable. Given Gomez’ peculiar behavior, Bise’s carefully worded warning, both being overlaid by Piner’s comment, I am unim- pressed with the manner in which Respondent handled this warning. Not asking Rosecrans for her version was not entirely 9 Gomez emphasizes her timidity by observing that she usually lis- tened to a portable music player through its earphones, effectively masking any Rosecrans-Pruett conversation. She says that evening she had forgotten to bring it to work. It is not unreasonable to assume that the older women were aware of her earphone listening and therefore were unconcerned about interfering with her. fair to her. It may properly be asked why they did not. Was it because Rosecrans was a known union organizer and/or be- cause she was heavily involved with the Union’s negotiation team? Why did Bise regard Gomez’ complaint as having valid- ity? What of the date inconsistency? Bise knew Gomez was hypersensitive and also knew Gomez used protective ear- phones. Was Respondent attempting to create a paper record of misconduct in order to build it to a discharge? Did Bise legiti- mately regard the matter as a continuation of the nearly identi- cal infraction in April? Did Bise tie it to what had occurred between the talking incident of August 16 and Rosecrans’ fail- ure to report to work on August 20? If she did make that con- nection, was it because of Rosecrans’ union activity or because of her misconduct? Or did it only become important in the context of Rosecrans’ failure to report to work 2 days before and the complications that brought? Finally, what impact does Jeremy Piner’s comment have upon the analysis? August 20—30 Rosecrans was not initially scheduled to work the day shift on Saturday, August 20. It was initially assigned to Donavan Balsley, her day-shift counterpart and lead dispatcher. Balsley had opened the shift to others and, although Rosecrans could have taken the shift outright based on the seniority practice, did not do so right away. Because of that, the shift was given to collections agent Ed Herrera, who served as a relief dispatcher. At some point Rosecrans realized she was able to take the shift and bumped Herrera. The General Counsel observes that on August 20, “a series of unfortunate events occurred.” In my opinion, “unfortunate” significantly underdescribes the scenario. Rosecrans lives in Davis, California, approximately 45 miles from Respondent’s facility in Napa. The commute is principally over Interstate-80 and then about 12 of state highway. Interstate-80 is an ex- tremely busy freeway, serving as the commute route between Sacramento and San Francisco-Oakland. It can be a difficult road at any time of day but is particularly heavy-going during commute hours. Rosecrans normally allows an hour and 15 minutes to get to work. For reasons of the heart, Rosecrans had a late night on the evening of August 19–20. She was to report to work that morn- ing at 7 a.m. She overslept and did not awake until 6:50 a.m. . She had absolutely no chance to get to work on time. Even an hour and 15 minute tardiness, such as this presaged, would put great strain on Respondent’s two-shift system, not to mention the harm to a shift skipped in its entirety. Here, it would leave the night-shift dispatcher on duty without immediate relief in sight. Since it was a Saturday, Rosecrans thought there was no supervisor immediately available for anyone to consult. The only person was night dispatcher Hope Pruett, still on duty. Rosecrans testified that the first thing she did that morning was to telephone Pruett at the dispatch office. She telephoned on her landline cordless telephone. She testified that as she spoke to Pruett, the telephone went dead. She tried again and was able to tell Pruett that she would be late. The phone went dead again. She testified that the instrument had been left off its cradle and had lost its charge. Her telephone bill shows only that one call was made at 6:59 a.m. PINER’S NAPA AMBULANCE SERVICE 615 Rosecrans’ lateness that morning created a problem for Pruett because she had scheduled an 8:30 a.m. test at a commu- nity college in Vallejo, about 14 miles distant. She simply could not stay and cover the shift. Rather than calling Lead Dispatcher Balsley at home or call Bise, who was the direct supervisor for the dispatchers, she began calling other dispatch- ers. She first called Herrera, knowing that Rosecrans had taken the shift from him. By then, Herrera had made other plans and declined. She then called Meleah Mahoney, who was training as a dispatcher. Mahoney told her she had not been released to handle a shift by herself. Pruett knew Gomez had been training on dispatch for a few days and so called her, though she says she did not know Gomez had not been cleared to work by her- self. Gomez lives within walking distance of the office. Pruett told Gomez that she estimated Rosecrans would be about 45 minutes late. She made that estimate even though Rosecrans had said nothing concerning how long it would take her to get from Davis to Napa. Curiously, Pruett contends that there were several telephone calls between her and Rosecrans after the first one about 7 a.m. Respondent’s telephone records do not show any calls during that time frame between the Company and Rosecrans. None- theless, Pruett asserts that they spoke several times and she assured Rosecrans that the shift would be taken by Gomez. Rosecrans agrees, despite the absence of any record proof the call was made. What number would Pruett have called, since the land line was dead and which, according to Rosecrans later, would not ring? Rosecrans’ cell phone? And, what phone did Pruett use? The Company records show no long-distance calls at that time. Did she have a cell phone of her own? If so, those records have not been presented. Moreover, she turned the dispatch tape recorders off while she tried to figure out what to do. Why? Did she think this was not company business? Was she trying to shield her friend Rosecrans by avoiding making a record? Wouldn’t that allow Rosecrans to make up a cover story for her lateness which could not easily be disproven? Having received Pruett’s assurance that she’d only need to work for 45 minutes, Gomez agreed to walk over and begin the shift. In the meantime, Rosecrans was having difficulties of her own making. Once she had spoken to Pruett, she decided that she didn’t need to hurry because she presumed Gomez would want several hours’ work. As a result, she took her time getting ready to leave. She took a shower, had a leisurely breakfast and otherwise readied herself for work. When she was fin- ished, about 8:30 a.m., she began looking for her car keys but could not find them. She said she looked high and low throughout her apartment and out to the car. She even searched her freezer and the planter box outside. She testified that she had panicked, thinking that the Company would use her behav- ior as an excuse to fire her. Having spent much of the previous evening with her boy- friend, she said she went outside her building and, using her cell phone, called him on his, leaving a code (the missed call message) for him to call back. Since it was not a completed call, she explained, her cell phone records do not reflect it. The boyfriend was said to be a power line worker from Southern California who was working temporarily on a project in Yuba City or Marysville, around 50 miles from Davis. She testified that he later called back and told her he had her car keys, prom- ising to return them after work that day. (Presumably, he had driven her car on their date the night before and had neglected to return the keys.) Despite the fact that she says her cell phone worked well enough to call her boyfriend, she did not take any steps to use it to call Respondent. Instead, she let the matter go. To me she testified she had difficulty getting a cellular signal unless she went outside her apartment building. This inconsistency is troubling since she had done that very thing to call the boy- friend. About 10:30 a.m., her cordless phone received a call from Donavan Balsley. She said, while crying, that she had awak- ened late, was unable to find her car keys and she was having a very bad morning. She explained that her keys might be with her boyfriend but she could not leave the house because she couldn’t lock it. Therefore, she testified, she told Balsley she was not coming to work. (Should one infer from that testi- mony, using negative pregnant logic, that while she didn’t have a house key, she did possess a spare set of car keys, yet didn’t want to admit it? Most people do have spare keys; it is foolish not to. Is her explanation concerning securing her front door credible? Modern entry doors can usually be locked without a key upon leaving; only a deadbolt could not be.) Why could she not testify that she did not have any keys at all, and stop there? If she had, that would have rendered her testimony about her inability to secure her door unnecessary. She testified that she behaved in this manner because she panicked. In any event, the communication from Balsley was the first she had had with any individual who held scheduling responsi- bility. It was not until Balsely’s telephone call that anyone at Respondent, beyond Pruett, became aware that Rosecrans was not coming in. The next day Rosecrans wrote an incident re- port (GC Exh. 18), in an attempt to explain what had happened. The report is two paragraphs long: I was unable to get to work on 8/19 [sic] (Day Dis- patch) because my friend inadvertently took my keys to work with him. He was unable to call me until almost 11:00 to let me know he had my keys because he was working on a pole in the Marysville–Yuba City area. To compound the problem, I had overslept and was going to be late, anyway—but then discovered I could not find my keys. My home phone was not working properly because it had been left off the cradle charger for too long. Clearly, this report is far from complete. It does not describe her first telephone call to Pruett; it does not discuss any further conversations she later claimed to have had with Pruett, par- ticularly whether she had knowledge that Pruett had called Gomez in for temporary duty. Furthermore, it omits entirely the fact that she had a working cell phone. Nor does she de- scribe the conversations she had with Balsley. Beyond that, there is no mention of whether she had a spare car key or whether she could not lock her door if she left. Finally, she does not try to excuse herself as having been in a state of panic. Yet all of these things were part of her testimony to me, either direct or implied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616 While this was developing, Gomez had been wondering where Rosecrans was, but had done nothing to get relieved. Pruett completed her business in Vallejo and called Gomez in dispatch to confirm that Rosecrans had arrived. The records show that call was made at 10:28 a.m. When Gomez explained that Rosecrans had not come in, Pruett asked Gomez if she had called Rosecrans for an update. Gomez then called Rosecrans first on her home line, but no one answered. Then she tried Rosecrans’ cell phone and left a voice mail message when no one answered that, either. This failure caused Gomez to call Bise. In tears, she explained that since Pruett had been unable to stay, she had agreed cover the dispatch office to allow Rose- crans time to arrive. Bise told her to call Balsley. She did and in rapid succession Balsley called Herrera, Pruett, and Bice. He then made the previously described called to Rosecrans. Unable to get anyone else to cover for the not-fully-trained Gomez, Balsley with Bise’s concurrence, made arrangements for the ambulance supervisor, whose station was adjacent to the office, to assist Gomez if she needed it. Balsley also told her to call him any time she thought she needed to. Although Gomez successfully completed the shift, Rose- crans’ absence had created a circumstance which was risky and entirely avoidable. Gomez had not been cleared as a trained dispatcher, and although Pruett bears a great deal of responsi- bility,10 the entire incident was triggered by Rosecrans. Fur- thermore, Rosecrans’ honesty in describing the episode in her incident report and in her testimony before me is suspect. As- suming that she was telling the truth about her missing car keys, the fact remains that she never called the Company to tell them of her difficulty. She says she knew Gomez was cover- ing, and also knew that Gomez was untrained. It was her re- sponsibility to notify someone in charge or get to work as promptly as she could. Her explanation for failing to notify the Company that she could not come in at all seems hollow in- deed. She testified that her cell phone worked when she left her apartment building. She had used it to call her boyfriend. Why did she not also call the Company with the cell phone, assum- ing that her cordless home phone was still inoperable? There is no explanation and it would appear to me that she was not deal- ing with the problem in an honest or responsible manner. Moreover, in her incident report she did not mention that she had a cell phone which was working that day. Why did she omit that from the report, but describe it to me? In any event, her testimony does not match the telephone records and her testimony about that morning is farfetched; indeed, extremely implausible. On Sunday, August 21 (the day she wrote her incident re- port), Bise and Balsley sought to speak with Rosecrans, but she declined, saying she wanted union representation. Despite that declination, Respondent permitted her to work her scheduled days, August 21, 22, 23, 27, and 27, 28. During that period management began sorting through the various reports it had obtained about the August 20 incident. As already noted on August 22, she did meet with Bise and Jeremy Piner, by then willing to talk. In that meeting Bise issued her the verbal warn- 10 Pruett did not escape discipline for her role in the incident. See GC Exhs. 31 and 32. ings concerning the August 16 loud talking matter (described in more detail above) and a warning for “shift abandonment” on August 20. According to Bise, Rosecrans told them that her ‘phones were not working.” They asked Rosecrans why she couldn’t have used a pay phone or a neighbor’s phone, but she responded she didn’t know where to find one and for some reason she couldn’t ask her neighbors if she could borrow theirs. Unsurprisingly, that response was viewed as unsatisfac- tory. On Tuesday, Bise and Balsley, apparently based on some- thing Jeremy Piner had said, discussed the August 20 matter a little more, having doubts about the credibility of Rosecrans’ claim that her phone was not working on Saturday morning. They decided to pursue it further. On Wednesday, Respondent’s management conducted a lengthy meeting to discuss with its attorney Patrick Jordan the direction of its ongoing collective bargaining. During that meeting they also discussed the facts, to the extent that they knew them, concerning Rosecrans’ August 20 behavior. It had already issued her the warning for shift abandonment, but in- formation had now developed concerning Rosecrans’ lack of truthfulness. Company president Gary Piner, who apparently had not been involved in issuing the earlier warning(s), but had asked for information concerning what Rosecrans had said and done about the absence itself, had become focused on whether Rosecrans had breached the company rule requiring total hon- esty. The rule, found in the employee handbook, is set forth in the footnote below.11 After the management team had consulted with Jordan concerning the issue, Jordan excused himself while management decided what to do. He was not present during the decision-making process. It is instructive to quote Jeremy Piner at length: WITNESS JEREMY PINER: Yeah, on Monday [August 22], Geri [Bise] and Donavan [Balsley] had come up that they had had a big problem, and they started coming up with facts and we started looking at them. Q. BY MR. JORDAN: And in particular, what was your role in terms of reviewing facts or accumulating same? A. One of the things that had come up is, you know, we could get a record of all this, our tape recording, we figured the tape recording would be working. I went in there personally, got the tape, took it back to my office where I have another recorder that can play these tapes at 11 Honesty—Honesty may be the single most important trait of an employee. Honesty presents itself most often in our communication as well as the security of other people’s property. Piner’s abhors dishonesty and will not tolerate dishonesty among its employees. Furthermore, Piner’s does not believe in degrees of hon- esty or placing a value on the item taken (i.e. ‘a lie is a lie’ and we don’t care whether it is ‘white’ or not and ‘stealing is stealing’ regard- less of the value of the item). If you want minor items such as a copy, a rose, etc., just ask, you may be able to get what you want. When there is a problem, you’ll find that “Honesty” gives manage- ment an opportunity for correction, but “Dishonesty” eliminates the opportunity for management to work with you to correct a situation. Therefore, any employee, against whom there is evidence of the dis- honest act, beyond a reasonable doubt, will be terminated. [Italics in original.] PINER’S NAPA AMBULANCE SERVICE 617 the rate that they need to be played at so, I reviewed the tape and the tape went off that morning12 and so we had no record of what had gone on. Q. That morning being which date? A. The morning of August 20th. Q. On what day did you engage in that activity? A. I believe that, the tape came up, I think it was Wednesday. Q. Directing your attention to that Wednesday, and I’m hoping that it’s August 25th?13 A. That would be about right. Q. Did you meet with me? A. Yes. Q. Was this a prearranged meeting? A. I recall that we were going to discuss Union nego- tiation items, preparing for a negotiation meeting coming up, I believe it was either the end of that week or the first of the next week. Q Without reviewing what we discussed but confin- ing yourself only to a topic, was the Rosecrans issues, as I’ll refer to it, a topic of discussion with me as your coun- sel? A. Yes. Q. For how long a period of time? A. We were in there for five hours. We had an ex- haustive meeting. Q. Independent of communications with me during the course of that day, did you engage in activities relating to the investigation? A. Yes. We had gone over all these details with my father and Geri Bise to try to make a time line out of this make some sense out of it, because the stories were very convoluted and we determined that it became rather unlikely that the facts that were presented to us could be accurate. Q. My question was, independent of being with me, did you engage in activities regarding the investigation on August 25th? A. Physical activities? Q. Yes. A. Yeah, I did inspect the tape that morning. Q. Upon my departure, did you participate in a meet- ing to discuss what would be done with respect to Rebecca Rosecrans? A. Yes, I did. Q. Who else attended that meeting? A. That was Geri Bise and my father, and myself. Q. Where did the meeting take place? A. In my father’s office. Q. How long did the meeting last? A. I don’t think it could have been more than a half hour, maybe an hour but, it definitely wasn’t more than an hour. 12 Meaning that the tape was unreviewable because the machines had been turned off. They had recorded nothing. As noted elsewhere the dispatcher who had turned them off was Hope Pruett. 13 Wednesday was August 24. Q. Do you know what the conclusion was, what was said regarding the decision between the three of you? A. Well, it was said basically— Q. By whom? A. I’m sorry? Q. And by whom? A. And by whom. Well, we all went around and around with the facts, because we wanted to make sure that everything was accurate, we were giving due process here. And it came down that— MS. KWON: Your Honor, objection, not responsive. Q. BY MR. JORDAN: Tell us what was said, not your thought process. A. Okay. I concluded, as others concluded, that this had to violate our policy on line [lying]. Q. I’m sorry? A. It had to violate our policies on line [lying]. Q. And was there some discussion as how that conclu- sion was drawn? A. The phone calls and everything were—I mean we could not, I could not believe that the phone calls that were made, an[d] the omissions that were made, and that the time frame of three and a half hours to search a small apartment, and maybe a path out to the vehicle to find keys and—there were just so many facts that didn’t add up. I mean a dispatcher— Q. Is this being discussed, by the way? A. This was all discussed, all these details, we went over it exhaustively. And I determined there was— [OBJECTION INTERPOSED.] THE WITNESS: My, [pause] [T]he words that I used were that it had to be lying, the facts didn’t work out. It was not really believable that Rebecca, who we all knew or in my opinion I knew that she had [her] head about her, I didn’t believe that she could be panicked and unable to think and unable to respond. I also—I mean I didn’t be- lieve that she couldn’t make the call. Her phone not ring- ing14 while it was charging, I’ve never heard of that. I’ve dealt with electronics a lot and I didn’t believe it at all. She may have not been able to pick it up for an extended period of time— [OBJECTION INTERPOSED.] THE WITNESS: So, anyway, I didn’t believe that the phone would not ring, and I still do not believe the phone would not ring. Q. BY MR. JORDAN: Tell us what you were saying? A. I was saying that the phone would have rang. She may not have been able to pick it up and speak for very long but, the phone would have been ringing. I also didn’t believe she was incapacitated to call in for three and a half hours. That did not make any sense to me either. And I believe that Geri Bise said that she believed it had to be ly- ing also. Q. What about your father? A. There was no doubt in his mind. He stated that this had to be a case of lying. 14 Wednesday was August 24. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618 Q. Was there any discussion about what lying meant in the context of your discussions? [CLARIFICATION TO WITNESS OMITTED.] A. Yes, yes. Q. What was said by who about the impact of lying? A. Well, the impact of this lying? Q. What was said and by whom, if Rosecrans was ly- ing? The impact of her lying, what was said about that, if anything? A. Well, the impact of her lie was I had stated that she had left this position and made a dangerous situation out of it by effectively having an inexperienced person come and replace her. I know that my father stated that, you know, we had a zero tolerance policy on lying and this certainly qualified. Q. Anything else that was discussed by the three of you during the course of this meeting? A. As far as details? Q. Anything else? A. Anything else? I can’t recall anything else at this time. Q. Have you exhausted your recollection? A. Yes. Q. Rebecca Rosecrans was on the Union’s negotiating committee? A. Yes. Q. Was the fact of her Union activities discussed by the three of you during the course of this meeting? A. No. It had no bearing on our decision. Q. Was it discussed? A. Was it discussed? Q. The fact that she was on the committee? A. Yeah, actually I would say that we did discuss it. Q. Was that topic discussed when you met with me for five hours? A. I would say yes. Q. Now, let me ask you this question, did we fire Re- becca Rosecrans because she was on the negotiating committee and was a leader in the Union? A. No. Q. What was she fired for? A. She was fired for lying. On August 28, for reasons not explained in the record, Rose- crans turned off the dispatch tape recorders, including the emer- gency tape recorder required under Respondent’s ambulance contract with the county. On August 30, after a bargaining session where she served as the Union’s note taker, Respondent issued her a suspension notice for having turned off those recorders. In the same mo- ment it gave her a discharge slip, citing lying concerning the previous shift abandonment and for turning off the tape record- ers on August 28. Respondent operates two tape recorders in its dispatch office. It is not entirely clear how they operate, but at least one is voiced-actuated and records office sounds, not just telephone conversations. One is tied to the county’s 911 emergency dis- patcher. Respondent’s contract with the county requires that recorder to be active at all times. The second was Piner’s backup and had the same requirement. It is not entirely clear, but it appears that Respondent’s dispatchers had drifted into a practice which was inconsistent with the contract’s require- ment. In July, Balsley had issued a memo which restated the policy that the tape recorders were to be left on at all times. All the dispatchers, including Rosecrans and Pruett, signed the memo in acknowledgment of its receipt. Despite signing the memo, at least some dispatchers did not take it seriously. Pruett had turned the dispatch tape recorders off during her call to Rosecrans concerning her lateness on August 20. That meant, when Jeremy Piner tried to investigate company records concerning Rosecrans’ August 20 behavior, there was nothing to review. Within a week, Rosecrans turned them off herself. There is employee testimony, to which the General Counsel points, that Respondent had both permitted and trained employ- ees to allow them to turne the recorders off while making per- sonal calls. Balsley denied that he trained dispatchers in such manner. Frankly, I am of the view that neither the employees who gave the testimony nor Balsley are entirely correct; he had been seen turning them off himself. Balsley had not been the lead dispatcher all that long (about a year when the incidents occurred) and the previous lead dispatcher had been a night- shift employee whose command of the situation on other shifts left much to be desired. In my view this is simply a matter of “drift;” over several years it was a practice which, while con- trary to outstanding rules, had taken root without close over- sight. Nevertheless, Respondent had always been bound to the county contract obligating the employees to maintain an audio record. Indeed, a county review would have required corrective measures. Balsley’s July memo was a reasonable remediation as Respondent’s management came to isolate the issue.15 III. ANALYSIS AND CONCLUSIONS Reviewing the remaining complaint and the arguments made by counsel for the General Counsel concerning purported union animus harbored by Respondent, I have come to the conclusion, mentioned somewhat piecemeal in section II, that most of the facts cited in support of the allegations concerning Rosecrans must be rejected. For the most part, they are simply irrelevant. The first, the April warning for repeatedly talking too loudly was clearly not aimed at any union connection. The complaints were entirely valid and reported by every employee who worked in the administrative/accounting office. Rosecrans was being disruptive and the conversations about which the staff was complaining have not been convincingly demonstrated to have been a union activity. It sounds mostly in general boister- ousness, perhaps impelled by a feeling of empowerment as the union drive got off the ground. But there has been no showing that her union activity was the basis of the office employees’ complaints. Similarly, the warning to fellow union activists on the ambu- lance side shortly after the mid-April NLRB election had no bearing on what Respondent was faced with in August when 15 In the settled complaint, Respondent’s issuance of the memo was alleged as an 8(a)(5) unilateral change. That allegation would have been dismissed. In any event it is not evidence of union animus as might support an 8(a)(3) violation. PINER’S NAPA AMBULANCE SERVICE 619 Rosecrans began to pile up her transgressions. The nondisci- plinary admonition to Pitcher concerning cell phone usage in the ambulances and the verbal warning to Davis for being out of uniform offer nothing in support of Rosecrans in August. Neither was aimed at the employee as a response to their union activity. In each case it was simply enforcement of the em- ployee handbook rules. The warning issued to Rosecrans on August 16 following Gomez’ complaint stands on different grounds. The strongest reason to conclude that the warning was discriminatory is Jer- emy Piner’s equating union talk to sexual harassment. This parallel is simply false. Union activity, including union talk, is protected by law—specifically, Section 7 of the Act. That pro- tection is not easily lost. Sexual harassment, on the other hand, is unlawful from the outset. Unwanted and coercive sexual overtures are not protected in the workplace; such conduct is forbidden by law. Here, it is undenied that Jeremy Piner, in discussing with Rosecrans the nature of Gomez’ complaint, acknowledged that he knew the conversation was about the Union and the status of the negotiations. To him, it was harassment of Gomez, though the evidence before him did not, and cannot, support such a conclusion. Under his analysis, the warning, even if it had some nondiscriminatory merit (too loud, too disruptive, etc.), was harassment for it offended Gomez. That shallow, and non- objective approach, does not even take into account Gomez’ hypersensitivity concerning unions. Nor does it account for Gomez’ lack of reasonableness: Why didn’t Gomez just ask Rosecrans and Pruett to pipe down? Union negotiations should have been of no interest, even if offensive, to Gomez who was outside the bargaining unit. If she didn’t want to hear about it, all she had to do was to assert their conversation was disrupting her work. Piner did not understand that Rosecrans’ and Pruett’s talking about the Union was protected and that Gomez was complaining about a subject matter that those two, within rea- son, could talk about. Frankly, Bise’s analysis of the circumstances were far more insightful than Piner’s. She understood that the conversation’s subject matter was off limits, but that interference with an- other’s work was not. And, of course, that is how she wrote the warning. Even so, neither she nor Piner independently inquired about Rosecrans’ perception of what happened that evening. Nor does it appear that they asked Pruett about it. That failure means they simply took Gomez’ tearful word for what hap- pened. Objectively, Gomez’ complaint should have been viewed more skeptically. The fact that she was in tears should have been of little import; she cries far too easily. Her inability to control her tearfulness suggests that she is not seeing things as they are. Besides, leaving aside her minor date discrepancy, what can one make of the fact that she was not in tears at the time of the incident, but had been so reduced some 9 or 10 hours later when she went to Bise? Isn’t her response back- wards? Surely the normal sequence would be reversed: cry first when the incident happens and become cool about it later. As an objective matter, there is much about Gomez’ behavior and report which lends itself to rejection. Skepticism needed to be applied. Yet Bise and Piner accepted it uncritically. Collectively, Piner’s equating (on a logic basis) lawful union talk with unlawful sexual behavior, his and Bise’s failure to recognize the inherent unlikelihood of Gomez’ story, and their failure to ask Rosecrans and/or Pruett their version of what had happened, all lead to the conclusion that the warning was really to interdict lawful employee talk about union affairs. Why else would Piner have made his remark? Accordingly, I find that the August 22 warning is Section 8(a)(1). Although separately alleged as an 8(a)(3) violation, I do not deem it necessary to make such a finding. The remedy would remain the same. Furthermore, that warning, being part of the progressive dis- cipline procedure, can be seen as animus of such a nature as to support the finding of a prima facie case for the 8(a)(3) allega- tion that Respondent suspended and discharged Rosecrans on September 30 because she was a union activist. Indeed, all the elements of a prima facie case are present. Respondent has stipulated that it knew Rosecrans was a union activist and it had, of course, observed her in her duties as the Union’s record- keeper during negotiations. The wrongful warning constitutes union animus and it fired her within a timeframe connected to her union activism. This suggests that a motivating factor in discharging Rosecrans was her union activism. See, e.g., Naomi Knitting Plant, 328 NLRB 1279 (1999) The question at that point, as mandated by Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and approved by NLRB v. Trans- portation Management Corp., 462 U.S. 393 (1983), is whether Respondent has rebutted the prima facie case by demonstrating that it would have suspended and discharged her despite her protected activity. I find that it has met that burden of rebuttal. While the ultimate reason for her discharge, according to Jeremy Piner, was her lying in breach of the company rule re- quiring honesty, that rationale must be viewed in context. Her August 20 behavior is the starting point. Regardless of the reasons why she did not appear for work that day, the fact is that she failed to do so.. In some ways what happened was worse than simply not coming in. After telling Pruett she would be late, she then failed to update any responsible person at work that she had decided not to report all. Of course, Balsley had learned from Pruett that Rosecrans had said she would be late that morning. Yet she never ap- peared. Respondent could certainly view Rosecrans’ statement as a broken promise, if not, upon further examination, a lie. It certainly denied Respondent time to find a proper replacement for Gomez. Next, Rosecrans’ (announced) tardiness resulted in an un- trained person being assigned to work in Respondent’s most sensitive position, emergency ambulance dispatcher. She ac- knowledges Pruett told her Gomez had agreed to come in. That alone should have alerted her to stay in touch with the office until she knew a fully trained person was serving as the dis- patcher. But she decided to take a relaxed approach. We know that she did not call anyone to update her circumstances; in- deed, it was not until Balsley called at 10:43 a.m.that Balsley learned she was not coming in at all, adding that since she didn’t have her keys, she couldn’t leave her house because she couldn’t lock the door. That call occurred 3 hours and 43 min- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620 utes after her expected reporting time. The fact that she had stayed home for that long without notifying anyone meant she knew she was behind the eight ball. She also knew if anyone focused on that fact, she would need a story of some kind to credibly explain why she had not called. The truth would be an admission of misconduct. At that point she had one known warning outstanding, the April white slip concerning talking too loudly. Concern about the impact of that slip would have been present, but not overpowering had she called Dispatch, Balsley or Bise within a reasonable time after her 7 a.m. con- versation with Pruett. But she did nothing until 10:43 a.m., when Balsley called. That eliminated any possibility that she could still provide an acceptable excuse—one that may well have been accurate—the lost key situation. What was difficult to explain was why she hadn’t tele- phoned. If Balsley had not called, it is reasonable for Respon- dent to have concluded that she never would have advised any- one at the Company what was happening and she knew it. She needed an explanation and chose to assert that her cordless phone had been off its charging cradle too long and she couldn’t use it. What she didn’t mention in her incident report was that she possessed a working cell phone. She also didn’t mention that fact during the August 22 meeting with Bise and Jeremy Piner. Instead, she gave what must have been viewed as a cock-and-bull story about an inability to borrow a phone from an apartment neighbor and that she didn’t know where to find a pay phone. This was viewed, when further scrutinized, as a lie to cover up the fact that she had no good reason not to have called. Furthermore, Jeremy Piner could reasonably be- lieve that her cordless phone would ring so long as it was in its charger/cradle, meaning he thought Gomez’ call had been ig- nored. She did have the caller ID feature on her phone. Curi- ously, it was working only a few minutes later when Balsley called and she admits she saw it was he, so she answered. I, too, doubt that her phone would not ring. Nevertheless, that does not answer the question of why she didn’t find another phone somewhere. In addition, why did she tell Balsley about her inability to lock her door? If she didn’t have her keys, she couldn’t drive and therefore had no way to get to work. Why did she add to the mix that she couldn’t se- cure her apartment? Was this embellishment, one which was unnecessary to make herself understood? I make no findings on the point, but Balsley would have been suspicious of that aspect even if he accepted her story about the keys having been taken by the boyfriend. And, he could also have been suspi- cious about the lost keys in another sense. Didn’t she have an extra set somewhere? Common sense would require it and I find that the lost keys story would have created doubt about her credibility as well, particularly since she was, in other respects, a sensible person.16 Certainly her claim that the cordless phone would not ring didn’t sound right to Balsley. 16 The General Counsel adduced from Rosecrans’ testimony which, if credited, describes Rosecrans’ desperation as she looked for her keys that morning, apparently in an effort to gain a favorable determination of her credibility. In fact, that testimony is entirely irrelevant to the issue of either the prima facie case or Respondent’s defense that Rose- crans was fired for lying. At worst it enhances the viability of Respon- dent’s skepticism; at best it can simply be set aside as not tending to And, aside from the story Rosecrans told them, her testimony that she had a working cell phone which she used to signal her boyfriend demonstrates that she was omitting a significant fact when she chose not to mention that second phone in either her incident report or to Bise and Jeremy Piner on August 22. Even if that neglect doesn’t help the Company because they didn’t know about it, the fact is that she has admitted to her omission in her testimony. From that I can reasonably conclude that she was being deceptive to the Company as she reported the facts both in writing and orally on August 22. She was dishonestly trying to cover up her irresponsible behavior. While the full picture was not available to Respondent on August 22, her story still didn’t hold water. As Bise, Jeremy Piner, and Gary Piner began to digest it, running a timeline and considering her story as a whole, they rationally reached the conclusion that she had not been truthful in her explanations. Thus, even if they believed her story about the boyfriend mistakenly taking her keys, as farfetched as it is, that wasn’t the dishonesty they perceived. They saw first her failure to follow through after advising Pruett she’d be late. What they viewed as lying followed. What bothered them initially was her story about the cordless phone not working and her connected, but implausible contention that she couldn’t find a pay phone or call upon a neighbor. They saw it as a transparent effort to cover up her failure to meet her duties as an employee. Their assessment was certainly reasonable and the facts adduced at the hearing bear them out. She clearly provided Respondent with reason to conclude that she had lied to cover up her fail- ure. Because of that, I have no difficulty in determining that the prima facie case proven by the General Counsel has been rebut- ted. See McKesson Drug Co., 337 NLRB 935, 936 fn. 7 (2002), where the Board noted: In order to meet its burden under Wright Line (i.e., to show that it would have discharged the employee even in the ab- sence of protected activity), an employer need not prove that the employee committed the alleged offense. However, the employer must show that it had a reasonable belief that the employee committed the offense, and that it acted on that be- lief when it discharged him. See Yuker Construction, 335 NLRB 1072 (2001) (discharge of employee based on mis- taken belief does not constitute unfair labor practice, as em- ployer may discharge an employee for any reason, whether or not it is just, so long as it is not for protected activity); Affili- ated Foods, 328 NLRB 1107, 1107 and fn. 1 (1999) (it was not necessary for employer to prove that misconduct actually occurred to meet burden and show that it would have dis- charged employees regardless of their protected activities; demonstrating reasonable, good-faith belief that employees had engaged in misconduct was sufficient); and GHR Energy, 294 NLRB 1011, 1012–1013 (1989) (respondent met Wright Line burden by showing that employees would have been suspended even in the absence of their protected activities, because respondent reasonably believed they had engaged in prove or disprove the issue. Her testimony concerning the morning’s troubles, aside from the phone calls or lack of them, is colorful but ultimately of no consequence to the proper legal analysis. PINER’S NAPA AMBULANCE SERVICE 621 serious misconduct endangering other employees and the plant itself). . . . [Chairman Hurtgen’s concurring comment omitted.] See also Jordan Marsh Stores Corp., 317 NLRB 460, 476 (1995), where the Board adopted Judge Michael O. Miller’s statement of the law: “To rebut that prima facie case and show that Ray would have been discharged for the same conduct even in the absence of her union activity, Respondent must only show that it reasonably believed that she had engaged in mis- conduct of a level warranting termination. GHR Energy Corp., 294 NLRB 1011, 1012–013 (1989), enfd. 924 F.2d 1055 (5th Cir. 1991)” Clearly Respondent has met the burden required by McKes- son. Furthermore, I would make this finding even absent Respon- dent’s rule regarding employee honesty. Rosecrans’ reckless- ness put into motion a dangerous circumstance—an untrained emergency dispatcher called to work when she never should have been. The fact that Pruett, not Rosecrans, was the one who put Gomez in the dispatch office is irrelevant. Rosecrans did nothing to alleviate the situation once she told Pruett she was coming in late and Pruett advised her that the untrained Gomez would sit in. She then lied about her role in creating that circumstance. She would have been fired even without the rule no matter what protected conduct she had previously en- gaged in. Accordingly, the allegation concerning Rosecrans’s discharge will be dismissed. This dismissal essentially overrides the 8(a)(3) allegation concerning her simultaneous suspension and it is therefore unnecessary to make any findings about it. Even so, the record shows she had, in July, been instructed not to turn off the tape recorders. She did so anyway. Her misconduct was clear. Suspension was in the offing. 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 affirmative action shall also require Respondent to post a notice to employees announcing the remedial steps it has undertaken. Based upon the foregoing findings of fact, legal analysis, and the record as a whole I hereby make the following CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The National Emergency Medical Services Association is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act on August 22, 2005 when it issued a warning to its employee Rebecca Rosecrans which was, in large part, based upon her union ac- tivities and because it equated activities protected by Section 7 with activities prohibited by other laws. 4. The General Counsel has not proven any other violation of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended17 ORDER The Respondent, Napa Ambulance Service, Inc., d/b/a Piner’s Napa Ambulance Service, Napa, California, its officers, agents, and representatives, shall 1. Cease and desist from (a) Interfering with, restraining and coercing employees who exercise the rights guaranteed them by Section 7 of the Act by issuing them warnings because of their activities on behalf of the National Emergency Medical Services Association or any other labor organization and by wrongfully equating union activity with activity prohibited by other laws. (b) In any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, remove from its files any reference to Rebecca Rosecrans’ August 22, 2005 unlawful warning, and within 3 days thereafter, notify her in writing that this has been done and that the warning will not be used against her in any way. (b) Within 14 days after service by the Region, post at its facilities in Napa County, California copies of the attached notice marked “Appendix.”18 Copies of the notice, on forms provided by the Regional Director for Region 20 after being signed by Respondent’s authorized representative, shall be posted by Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these pro- ceedings, Respondent has gone out of business or closed the facility involved in these proceedings, Respondent shall dupli- cate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since August 22, 2005. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. It is FURTHER ORDERED that any motions outstanding which are inconsistent with this decision are . 17 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 18 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.”