Meda-Care Ambulance, Inc.

MEDA-CARE AMBULANCE 471 Meda-Care Ambulance, Inc:, and 1199W,. National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO and Federation of Emer- gency Medical Technicians, Wisconsin Federa- tion of Nurses and Health Professionals, Ameri- can Federation of Teachers , AFL-CIO. Cases 30-CA-6609, 30-CA-7030, 30-CA-7132, 30- CA-7132-2, 30-CA-7134, 30-CA-7398, 30- CA4648, 30-CA-7672, and 30-CA-7830 31 August 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 21 and 30 December 1983 Administrative Law Judge Joel A. Harmatz issued the attached decisions.' The Respondent filed exceptions and a supporting brief. The General Counsel and one of the Charging Parties also filed exceptions and sup- porting briefs. The National Labor Relations Board has delegat- ed 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,2 and conclusions ,3 to modify the remedy,4 and to adopt the recommended Order5 as modified. The Union wrote a letter to the Respondent dated 23 May 1983 informing the Respondent that the union representative to whom the Respondent objected was no longer involved in negotiations and requesting that bargaining resume. The Re- spondent replied by 25 May 1983 letter. The judge construed the 28 June 1983 complaint in Case 30- CA-7830 to contain the sole allegation that the Re- spondent in its 25 May 1983 letter unlawfully con- ditioned bargaining upon the Union's published re- traction of a Milwaukee Labor Press article critical of the Respondent. The judge dismissed the com- plaint, finding that the 25 May letter merely stated that the Respondent fully expected a retraction and did not deliver an ultimatum concerning the article. The General Counsel excepts to this dismissal on the ground that the judge overlooked the portion of the complaint alleging that by the 25 May letter the Respondent had unlawfully conditioned bar- gaining on the Union's agreement to the inclusion of a loyalty clause in the contract. We find merit in the General Counsel's contention and therefore re- verse the severance and dismissal of the complaint as it pertains to the loyalty-clause allegation.6 I The judge granted the General Counsel's motion to consolidate Case 30-CA-7830 with Cases 30-CA-6609, at al 8 The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive 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), eiifd. 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings 3 The judge declined to reach the merits of the alleged violations of Sec 8(a)(1) in the complaint in Case 30-CA-6609 The charges underly- ing, these allegations had been the subject of an informal settlement agree- ment 'that was set aside by the Regional Director on 1 I February 1983. The General Counsel did not file a formal exception to the judge's treat- ment of the allegations but urges the Board to "review for itself' the judge's "unjustified and improper accusations" and argues that the Re- gional Director'had "every right" to set aside the settlement Although we do not adopt the.judge's characterization of the General Counsel's de- cision to issue a complaint on the previously settled charges, we find in view of the circumstances and disposition of this case that no useful pur- pose would be served by further proceedings on the allegations based on those charges. Accordingly, we affirm the judge's dismissal of the com- plaint in Case 30-CA-6609. The Charging Party has excepted to, inter alia, the judge's conclusion that the discharge of ambulance driver Robert Galewski did not violate Sec 8(a)(3) The judge credited the testimony of the Respondent's gener- al manager Russell Barczak, as to the circumstances of Galewski's dis- charge. Barczak testified that Galewski was discharged for a series of in- cidents reported by coworkers, including most notably Galewski's failure to use red lights and siren on an emergency Code 3 call for a nonrespon- sive patient, parking in a management space, and refusing responsibility for missing equipment. The Charging Party does not except to the judge's finding that the parking and missing equipment incidents were violations of clear work rules The record reveals that Barczak investigat- ed Galewski's excuses, allowed Galewski the opportunity to submit a written explanation for not using red lights and siren on an emergency call, and suggested that Galewski brink; a representative to the first inves- tigatory meeting on that incident Barczak testified that he concluded, after investigation, that Galewski's excuses were not genuine. In addition, Barczak testified that Galewski thwarted management's efforts to resolve charges against him by treating these efforts as a joke and being unrea- sonable. Finally, Barczak testified that he believed at the time that Ga- lewski's attitude and course of conduct was a calculated challenge to Barczak's authority as the new general manager Galewski confirmed that he told Barczak and Company Attorney Peck that he would not neces- sarily use red lights and siren on a Code 3 call even if it were clear com- pany policy to do so. In light of the credited testimony of General Man- ager Barczak, and the record as a whole, we agree with the judge that the Respondent has successfully carried its burden of rebutting the Gen- eral Counsel's prima facie case under Wright Line, 251 NLRB 1083 (1980) ° Interest will be computed in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amend- ment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 5 We agree with the judge's conclusion that Galewski's presence on the Union's bargaining panel while he also holds a position soliciting business for one of the Respondent's competitors creates a disabling con- flict of interest privileging the Respondent's withdrawal from negotia- tions The Respondent's obligation to bargain with the Union resumes if and when Galewski resigns from the bargaining panel or this conflict of interest is otherwise removed The General Counsel moves the Board to reopen the record for receipt of a 30 January 1984 letter from the Union informing the Respondent that Galewski is no longer employed by its competitor. As this matter is more appropriately raised during the com- pliance stage of this proceeding, the motion is denied 5 In dismissing Case 30-CA-7830 the judge concluded, inter alia, that the doctrine of collateral estoppel applied to the complaint allegations based on the Board's prior denial of the General Counsel's request for special permission to appeal the judge's denial of her motion to reopen the record in Cases 30-CA-6609, et al with respect to the Respondent's 25 May 1983 letter to the Union The judge further based his dismissal of Case 30-CA-7830 on the grounds of "administrative convenience " We disagree with both of the judge's conclusions. The Board's denial of the General Counsel's interlocutory request constituted neither a determina- tion on the merits nor a determination that the General Counsel was Continued 285 NLRB No. 50 472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD We agree with the judge that it is unnecessary to direct a hearing on the allegation that the 25 May 1983 letter unlawfully conditions bargaining on the Union's acceptance of the loyalty clause. The Re- spondent does not disavow authorship of the letter in its answer to the complaint in Case 30-CA-7830 and admits that the letter constitutes a continuing refusal to bargain. The letter clearly expresses on its face the Respondent's position that the Union's agreement to a loyalty clause is a condition prece- dent to further negotiations. The loyalty clause proposed by the Respondent, requiring the employees and their representatives to use their best efforts to promote the Respond- ent's interests, is not a mandatory subject of bar- gaining . Cf. Salvation Army of Massachusetts, 271 NLRB 195, 198-199 (1984) (Chairman Dotson dis- senting on other grounds) (religious mission clause does not bear direct relationship to wages, hours, working conditions, thus not a mandatory subject of bargaining); Hall Tank Co., 214 NLRB 995 (1974) (union liability for work stoppage). It is a violation of the duty to bargain in good faith to hold negotiations hostage to a demand for a non- mandatory subject. Operating Engineers Local 542 (York County), 216 NLRB 408, 410 (1975), enfd. 532 F.2d 902 (3d Cir. 1976); Operating Engineers Local 12 (AGC), 187 NLRB 430, 432 (1970). Ac- cordingly, we conclude that the Respondent violat- ed Section 8(a)(5) by its 25 May 1983 letter to the Union, as alleged in the 28 June 1983 complaint.' barred from litigating the matter of the 25 May letter based on the issu- ance of a new complaint and, therefore, the doctrine of collateral estop- pel is inapplicable Further, contrary to the judge, we find that the com- plaint in Case 30-CA-7830, to the extent it involved the portion of the 25 May letter in which the Respondent conditioned further bargaining on the Union's agreement to a loyalty clause, constituted a new cause of action and that there exists no basis for dismissing that portion of the complaint on the grounds of "administrative convenience" Chairman Dotson agrees that the judge erroneously overlooked the portion of the complaint in Case 30-CA-7830 alleging that the Respond- ent unlawfully conditioned bargaining on the Union 's agreement to the inclusion of a loyalty clause in the contract The Chairman finds this error to be sufficient reason in itself to reverse the judge's dismissal of the complaint Therefore, the Chairman finds it unnecessary to join his col- leagues in their discussion of the additional reasons offered by the judge for dismissing the complaint in question ° In the attached decision of 30 December 1983 in Cases 30-CA-6609, et at the judge concluded that the Respondent had unilaterally curtailed negotiations until, inter alia, the Union agreed to a proposed loyalty clause The judge apparently based this conclusion on his finding that during the bargaining session of 20 October 1982, at which the Respond- ent withdrew from negotiations because of employee handbilling and picketing and the Milwaukee Labor Press article, the Respondent also told the Union that it would make no wage proposal until the Union agreed to the inclusion of a loyalty clause in the contract However, as of the 20 October meeting the Respondent had merely proposed the loyalty clause It did not take the position that it would make no wage proposal other than the Federal minimum if the Union did not agree to the clause until bargaining resumed on 20 January 1983 The judge concluded that the Respondent 's position on the clause at the 20 January meeting and until the Respondent 's April 1983 withdrawal from negotiations constitut- ed hard bargaining but was not a violation of the Act We nevertheless adopt the judge's Order requiring the Respondent to cease and desist The judge concluded that the Respondent by Su- pervisor Linda Weidemann interrogated ambulance technician Ralph Lisowe in violation of Section 8(a)(1) of the Act. Weidemann asked Lisowe if he had signed an authorization card and given it to the union representative and what his feelings were about the Union. Interrogation of employees is not unlawful per se. In determining whether or not an interrogation violates Section 8(a)(1), the Board looks at wheth- er, under all the circumstances, the interrogation reasonably tends to interfere with, restrain, or coerce employees in the exercise of Section 7 rights. Rossmore House, 269 NLRB 1176 (1984).8 We do not agree that Weidemann's questioning violated the Act because the surrounding circum- stances indicate that it was not coercive. Weide- mann was an employee working as a dispatcher who assumed supervisory duties only part time. In- plant organizer Galewski testified that he gave Weidemann an authorization card when attempting to organize the dispatchers. Employee Lund testi- fied that she gave Weidemann a union memoran- dum and did not think of Weidemann as a supervi- sor or someone who would report union activity to management. Weidemann's questions arose during an impromptu conversation between Weidemann and Lisowe when they found themselves alone to- gether in the dispatcher's office. To hold that spon- taneous questioning during a casual conversation by a low-level supervisor who has regular work-re- lated contact with employees is unlawful is to ignore the realities of the workplace. See Rossmore House, supra; Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). Accordingly we shall delete the refer- ence to interrogation from the judge's recommend- ed Order.9 from refusing to negotiate until the Union agrees to the loyalty clause because we have found in the consolidated proceeding in Case 30-CA- 7830 that by its 25 May 1983 letter to the Union the Respondent so con- ditioned further bargaining Rossmore House issued subsequent to the judge's decision Contrary to his colleagues, Member Babson would find that Supervi- sor Weideman's interrogation of employee Lisowe violated Sec 8(a)(1) Thus, applying Rossmore House and Sunnyvale, Member Babson con- cludes that under all the circumstances here Weidmann's questioning of Lisowe reasonably tended to interfere with, restrain, or coerce the em- ployee Sec 7 rights In so doing, Member Babson emphasizes the specific nature of Weidemann 's questions and the facts the questioning occurred in the dispatcher's office where Weidemann served in a part-time capac- ity as a supervisor He further notes the absence of evidence that Lisowe was a known and open union adherent or that Lisowe did not consider Weidemann to be a supervisor or someone who would report union ac- tivity to management Given these circumstances, and because he finds none of the other factors relied on by his colleagues sufficient to negate the conclusion that Weidemann's interrogation reasonably tended to be coercive, Member Babson would adopt the judge's finding of a violation MEDA-CARE AMBULANCE ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Meda-Care Ambulance, Inc., Milwaukee, Wisconsin, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(a) and reletter the subse- quent paragraphs. 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities, WE WILL NOT refuse to bargain collectively and in good faith with Federation of Emergency Medi- cal Technicians, Wisconsin Federation of Nurses and Health Professionals, American Federation of Teachers, AFL-CIO as the exclusive statutory col- lective-bargaining representative of our employees in the unit set forth below: All emergency technicians employed by the employer at its facilities located at 9721 W. Greenfield Avenue, W, Allis, Wisconsin and 2515 W. Vliet Street, Milwaukee, Wisconsin; but excluding all guards'and supervisors as de- fined in the Act. WE WILL NOT in derogation of union status as exclusive representative unilaterally alter your terms and conditions of work without first notify- ing and bargaining with the Union. WE WILL NOT refuse, or delay unreasonably, on request of the Union, in submitting information necessary to the performance of that Union's duty to represent you in collective-bargaining negotia- tions, or the administration of any collective-bar- gaining agreement reached. 473 WE WILL NOT terminate or suspend collective- bargaining negotiations because you elect to engage in activity protected by Section 7 of the National Labor Relations Act. WE WILL NOT in like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make you whole for any losses you may have suffered as a result of our change in health and medical benefit carriers, with interest. MEDA-CARE AMBULANCE, INC. DECISION AND ORDER SEVERING CASE AND DISMISSING COMPLAINT JOEL A. HARMATZ, Administrative Law Judge. On August 4, 1983, the complaint dated July 28, 1983, in this proceeding was consolidated by my order with pending Cases 30-CA-6609, 30-CA-7030, 30-CA-7132, 30-CA- 7132-2, 30-CA-7134, 30-CA-7134-2, 30-CA-7398, 30- CA-7648, 30-CA-7672. Contemporaneous therewith, the parties were directed to show cause why the instant complaint should not be severed and dismissed. Thereaf- ter, timely responses were filed on behalf of the General Counsel, the Respondent, and the Charging Party. On the entire record in this proceeding, 2 including the responses to the Order to Show Cause, it is found as fol- lows FINDINGS OF FACT A. The instant complaint represents an additional chapter in a fiercely contested, ongoing labor dispute marred by a crossfire or recrimination dating back to the early summer of 1981 . At least 10 separate unfair labor practice charges have been filed against the Respondent and no less than 4 complaints have issued charging Re- spondent with various unfair labor practices . The issues in two complaints, and portions of a third were the sub- ject of an evidentiary hearing before me in Milwaukee, Wisconsin, on May 9, 10, 11, 12, and 13, 1983.2 Consid- ered therein, inter alia, was a complaint dated April 28, 1983, charging that Respondent violated Section 8(a)(5) and (1) by its failure to bargain in good faith in several particulars, 'including, inter alga, the conditioning of fur- ther bargaining on the Union's agreement to Respond- ent's proposed loyalty clause, and by its refusal to bar- gain until Robert Galewskl's removal as a member of the Union's negotiating team. B. At the threshold of the present controversy is the fact that following close of the aforesaid hearing and on 1 Attached as an Appendix [omitted from publication] is an index of exhibits which constitutes the entire record in Case 30-CA-7830 All constituent documents were either issued by me referred to mutually by the General Counsel and Respondent, or received in due course by me under conditions raising an inference of authenticity sufficiently strong to displace with need for additional hearing Nonprobative hearsay elements within said documents have not been relied on " A fourth Loinpl.unt in Case 30-CA-6746 was recently resolved by the Board Ihiough alfirmative of findings of unlawful dnenmonatious against Respondein. 266 NLRB 1208 (1983) 474 ' DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD May 23, 1983, FEMT, the Charging Party herein, wrote Respondent, addressing one of the aforedescribed condi- tions by indicating that "Mr. Galewski will not be par- ticipating in any contract negotiations, be privy to any information during the negotiations, and will not have any position to set policies or procedures of the local."3 On this basis, the Union requested a resumption of fur- ther contract negotiations, proposing specific meeting dates. (See ALJ Exh. 1.) C. Thereafter on May 25, 1983, Barton M. Peck, Re- spondent's counsel, responded as follows: This will acknowledge receipt of your letter on May 23, 1983 and your expression of interest in continuing negotiations. Your committee has taken issue with our posi- tion, that as a condition precedent to continued ne- gotiations your committee must agree to and be found by the loyalty clause provision 'which we have submitted to you. This issue was, in part, the subject of our May 9- 13 hearing before the NLRB. We will not deviate from this position. We also fully expect that you will be publishing a retraction of the disloyal statements which have ap- peared in the October 14 issue of The Milwaukee Labor Press. When you have demonstrated that you are will- ing to negotiate in a lawful and proper manner, then and only then, will we be in a position to sit down with you at the bargaining table.4 D. In response, on June 6, 1983, FEMT filed a new unfair labor practice charge alleging as follows: Employer has on or about May 25, 1983, refused to bargain by imposition of additional conditions for returning to the bargaining table.5 E. On June 10, 1983, the General Counsel filed with me a motion to reopen the record in Cases 30-CA-6609, 30-CA-7030, 30-CA-7132, 30-CA-7132-2, 30-CA-7134, 30-CA-7134-2, 30-CA-7398, 30-CA-7468, and 30-CA- 7672, which acknowledged the filing of the new unfair labor practice charge mentioned above, and defined the facts to be litigated as follows: By letter dated May 25, 1983, Respondent's counsel, Barton M. Peck, continued to insist that as a condi- tion precedent to continued negotiations, the Union agree to be found by the "loyalty clause," stated that Respondent fully expected a published retrac- tion of the October 14, 1982 Labor Press article, and concluded "when you have demonstrated that you are willing to negotiate in a lawful and proper manner, then and only then, will we be in a position to sit down with you at the bargaining table." [Em- phasis added.] That letter, however, did indicate somewhat curiously that "Mr. Ga- lewski will participate in the Public Relations Committee of the Local " 4 See ALJ Exh 2 6 See ALJ Exh. 3 In support of the motion, the General Counsel argued broadly and somewhat vaguely as follows: General Counsel submits said evidence demon- strates Respondent's reasons for refusing to meet and bargain with the Union constitute a "sham" and that said evidence should be received into the Record so that it may be weighed with the existing Record evidence in determining whether Respond- ent has violated Section 8(a)(1) and (5) of the Act.6 F. On June 14, 1983, the Respondent submitted a state- ment pertaining to the motion to reopen, which included the following declaration: [B]oth parties acknowledge that the Respondent has refused to bargain during the period following the October 7, 1982, bargaining session unless the Union has agreed to a loyalty pledge.7 G. On June 14, 1983, I issued a ruling denying in its entirety the General Counsel's motion to reopen the record, stating as follows: Having duly considered the matter, it is concluded that said offer does not relate to any unfair labor practices on which issue is joined under the plead- ings in this case, that it is in no sense relevant to the assessment of those issues, and that it will have no effect upon any remedy which might be deemed ap- propriate herein.8 H. On June 24, 1983, the General Counsel sought re- versal of said ruling by filing a "Request to the Board for Special Permission to Appeal," stating as grounds therefore, in material part as follows: By letter to the Union dated May 25, 1983, and in direct response to the Union's May 23 letter, Re- spondent continued to refuse to meet and negotiate without the Union first agreeing to the loyalty clause. A new situation has been created. Galewski is no longer president of the Union and has nothing to do with contract negotiations. It strongly appears Re- spondent is refusing to meet and bargain for an un- justifiable reason and the Judge should have the op- portunity to rule with respect to this new situation. Certainly, all the parties should have a ruling which meets the present situation, that is, that the Re- spondent is now refusing to meet and bargain pur- portedly solely because of the refusal of the Union to agree to the loyalty clause. The Region, of course, could issue a new complaint, but such an action would be bureaucratic nonsense.9 By telegraphic order dated July 12, 1983, the Board denied the General Counsel's request for special permis- sion to appeal the above ruling. i o c See ALJ Exh. 4 ' See ALJ Exh. 5. 8 See ALJ Exh 6 9 See ALJ Exh 7 tO See ALJ Exh 8 MEDA-CARE AMBULANCE On July 18, 1983, posthearing briefs were filed by the parties in Cases 30-CA-6609, 30-CA-7030, 30-CA-7132, 30-CA-7132-2, 30-CA-7134, 30-CA-7134-2, 30-CA- 7398, 30-CA-7648, and 30-CA-7672. K. On July 28, 1983, the Regional Director for Region 30 issued a new complaint in Case 30-CA-7830 alleging the following conduct as the sole unfair labor practice under interdict: By letter dated May 25, 1983, and in direct response to FEMT's May 23, 1983 letter . . . Respondent continued in its refusal 1o meet and bargain with FEMT and placed an illegal condition on bargain- ing by demanding a published retraction of the Oc- tober 14, 1982, Labor Press newspaper article. I IL L. On July 29, 1983, the General Counsel filed a motion to reopen record, consolidate cases and schedule hearing, urging consolidation of Case 30-CA-7830 with Cases 30-CA-6609, 30-CA-7030, 30-CA-7132, 30-CA- 7132-2, 30-CA-7134, 30-CA--7134-2, 30-CA-7398, 30- CA-7648, 30-CA-7672; and additional hearing there- on.12 M. On August 1, 1983, Respondent urged denial of the aforesaid motion on the following grounds:13 1. That General Counsel's motion is admittedly pre- mised upon issues which have been litigated previ- ously; hence, a. Litigating a claimed "continuing violation" would result in relitigating the same issues ad in- finitum or as long as the Union keeps reasserting its position prior to Your Honor's decision. b. Such litigation would result in a needless and improper delay of a decision i n a matter in which the General Counsel is asserting two in- stances'of back-pay remedy against the Respond- ent. 3. General Counsel's "new" case is, simply put, not only a malicious abuse of the legal process, but is also a furtherance of his unrelenting harassment of the Respondent. The General Counsel is clearly at- tempting to exploit the vehicle of continuous litiga- tion as a means of forcing his will upon the Re- spondent in order to deprive the Respondent of the benefit of Your Honor's decision in the case which has been closed. 4. There is nothing advanced by General Counsel in his current Motion which has not been considered by your Honor in General Counsel's prior Motion. As General Counsel admits, not only have you re- jected that Motion, but the Board has also rejected it vis a vis its response to General Counsel's effort to appeal your decision. 11 See ALJ Exh 10(a). Note that in its "Request for Special Permis- sion to Appeal," ALJ Exh. 7, the General Counsel placed a different in- terpretation on that letter. It was therein stated that, in view of the May 25 letter, "Respondent is now refusing to meet and bargain . solely because of the refusal of the Union to agree to the loyalty clause." 12 See ALA Exh 11(a). 19 See ALA Exh. 11(b) 475 N. On August 4, 1983, I issued an order consolidating cases and directing parties to show to cause as to why Case 30-CA-7830 should not be servered and dismissed. That document raised two issues concerning propriety of the complaint in Case 30-CA-7830: 1. The first related to the validity-and the General Counsel's request for further hearing in that from all ap- pearences there was no material dispute of fact as the new complaint was based exclusively upon Respondent's letter of May 25, 1983. Indeed, the General Counsel in ALJ Exh. 7 appears to concede that parole testimony, beyond authentication of documents, would not throw light on the issues raised. Nonetheless, the proponents of the complaint were afforded the opportunity to substanti- ate their claim as to need for hearing, with the parties being admonished in that respect by me as follows: Although it should go without saying, my experi- ence in connection with' this proceeding makes it necessary to importune counsel as to accountability for the factual accuracy of representations made in response to this direction to show cause. In order that the issues presented herein be fully and fairly evaluated at a minimum cost to all concerned, it is also found necessary to urge that counsel concen- trate on specifics while avoiding unfair characteriza- tion and misleading generality. 2. The second question posed by the show cause order related to the legal sufficiency of the complaint in Case 30-CA-7830. In that respect, the parties were specifical- ly advised as to my tentative views that the complaint in Case 30-CA-7830 should be served and dismissed on the following reasoning: The processing of the complaint in Case 30-CA- 7830 would countenance a multiplicity of actions which would only serve to forestall an appropriate remedy on any refusal to bargain substantiated by the litigation which has already transpired. Thus, the earlier denial of the General Counsel's motion to reopen was, in part, founded upon the fact that Respondent's May 25 letter ". . . will have no effect upon any remedy which might be deemed ap- propriate herein," or, more specifically, that it is cu- mulative and could have no substantive remedial impact upon the rights and obligations of the par- ties. In other words, if, as tried in the hearing al- ready concluded on May 13, 1983, Respondent is able to maintain, as a matter of law, that it was privileged under N.L.R.B. v. Local Union No. 12129, International Brotherhood of Electrical Workers (Jef- ferson Standard Broadcasting Co.), 346 U.S. 464, to use "self help" to protect itself against disloyal acts and their effects, such a result would validate the stance taken by Respondent on May 25, 1983. On the other hand, if Respondent was not privileged to restrict the bargaining process in this fashion, the appropriate Board remedy based upon already liti- gated events, would redress any related limitations imposed on the bargaining process, including any and all suggested by its letter of May 25, 1983. 476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The complaint in Case No. 30-CA-7830 reminds of the proverbial "second bite of the apple." Quite plainly, while the charge was pending, the General Counsel opted initially against issuance of a com- plaint thereon, electing instead to file a motion to reopen the record. However, only after the parties, including the General Counsel, had filed post-hear- ing briefs, did the Regional Director take steps to render those filings obsolete by an attempt to re- shape the proceeding through belated issuance of a new complaint. The spectre of "sandbagging" clear- ly emerges. For such a course was adopted only after the Board approved the denial of the motion to reopen. Thus, it is not farfetched to conclude that the new complaint merely represents a vehicle for relitigation of matters underlying a prior adverse ruling, a result which raises serious question under the doctrine of collateral estoppel. In sum, the complaint in Case 30-CA-7830, seeks to relitigate existing issues on cumulative facts and its processing would be inimical to statutory poli- cies and purposes in that it would only prolong, through additional hearing and briefing, resolution of the basic underlying dispute, thereby subjecting the parties to a duplication of effort, unnecessary expense and the naturally exascerbating effects of unresolved controversy.14 0. Thereafter, responses to the show cause order were filed on behalf of the General Counse115 the Charging Party,16 and Respondent. i 7 Concluding Findings A. The Need for Further Hearing Even if further action in the instant complaint were warranted, it is clear from the responses of the parties and the entire record herein that Case 30-CA-7830 en- tails no dispute of fact warranting an evidentiary hearing. Thus, there is not merit in the General Counsel's posi- tion that Respondent cannot prevail absent a hearing. In this regard, the General Counsel points to the denial in Respondent's answer to the allegation that "Galewski re- signed his Union presidency, [that he] would participate in any contract negotiations or be privy to any informa- tion during negotiations and [that he] would not have any position to set policy or procedures within the Union.""" The General Counsel goes on to argue that the issue of "whether Respondent commits an unfair labor practice, or is privileged to refuse to bargain on ac- count of Galewski's status depends on the resloution of this fractual issue." This assertion can only be explained as a failure of the General Counsel to grasp the sub- 14 See ALJ Exh 12(a) 15 See ALJ Exh 12(b) 18 See ALJ Exh. 12(c) 17 See ALJ Exh 12(d). 18 Although beside the point, Respondents denial is somewhat under- standable For FEMT's May 23, 1983 letter asserts that Galewski would continue to participate "in the Public Relations Committee of the Local " This rightfully would raise suspicion as to how Galewski would have utility in that capacity while remaining insulated from the single-most mi- portant issue facing the Local, namely, the contract negotiations. stance of its own complaint. By virtue thereof, the unfair labor practice under scrunity is narrowly circumscribed. No material issue whatever is raised with respect to Re- spondent's position concerning Galewski. Instead the complaint in Case 30-CA-7830 is limited to an allegation that Respondent violated Section 8(a)(5) by placing an il- legal condition on bargaining "by demanding a published retraction of the October 14, 1982 Labor Press newspa- per article." Neither this, nor any other view advanced by the General Counsel supports necessity for hearing on this proceeding. The Charging Party in furtherance of the request for hearing takes an entirely different, but equally distorted, view of the issue raised by the instant complaint. It labors under the misapprehension that Respondent's in- sistence on a loyalty clause is under attack and then pro- ceeds to argue that new factual issues are raised by Re- spondent's May 25 letter in that respect. In this connec- tion, the Charging Party observes that there was no evi- dence at the concluded hearing in Case 30-CA-6609, etc., that Respondent refused to meet because FEMT re- fused to accept its loyalty proposals. Contrary to the Charging Party, the latter was the subject of allegations in both complaints in Case 30-CA-6609, etc. It was in fact litigated at the closed hearing wherein testimony re- vealed and Respondent now concedes that "the Re- spondent has refused to bargain during the period fol- lowing the October 7, 1982 bargaining session unless the Union has agreed to a loyalty pledge."19 Thus any new factual issue arising from the May 25 letter at best would be cumulative to evidence heretofore developed. Since June 10, 1983, when the General Counsel first sought to reopen the record on the basis of the May 25 letter, not a single rational ground has been advanced for assembling the parties in Milwaukee for further hearing. B. The Merits Although hearing is palpably unnecessary, it is my fur- ther conclusion the that complaint in Case 30 -CA-7830, on at least three separate and distinct grounds, fails to state a cause of action on which relief under the Act might be granted. 1. First, it will be recalled that the show cause order herein was addressed to the single allegation of unlawful conduct herein; namely, that Respondent violated Sec- tion 8(a)(5) and (1) by conditioning bargaining upon the Union's retraction of the October 14, 1982 article in the Milwaukee Labor Press. Through that mechanism the parties were given the opportunity to address the proce- dural and substantive deficiencies underlying that allega- tion. All were informed that tentatively it was, my view that the complaint, on indisputable fact, lacked factual substantiation. In this connection , the show cause order recited as follows: The complaint in Case 30-CA-7830 is rooted in the position taken by Respondent in its letter of May 25, 1983. 19 See ALJ Exh 5 MEDA-CARE AMBULANCE 477 That letter merely reiterates Respondent's posi- tion based on its conduct since March 9, 1983, that further bargaining would be conditioned upon the Union's acceptance of Respondent's proposed "loy- alty clause"-matter which is numbered among the allegations in the existing consolidated- compolaint issued on April 28, 1983, which is not subject to any material conflict in testimony . . . and which has been fully litigated. Said letter does not substantiate that, as of May 25, 1983, Respondent was insisting, as a pre-condi- tion for the resumption of bargaining, that the Union publish a retraction of the disloyal statements which appeared in the October 14 issue of the Milwaukee Labor Press.20 The General Counsel now disputes the foregoing, ar- guing that this was not the case, as the Employer, on the face of the pleadings, admitted to the illegal condition. This, according _ to the General Counsel, was evident from Respondent's answer wherein the critical "retrac- tion" allegation was countered by the following: [Respondent] admits that . . . [it] . . . has contin- ued to refuse to bargain with FEMT as set forth in the complaint, but denies that the "condition" was illegal or, for that matter, unalterable. From this, the General Counsel theorizes that "Re- spondent's answer does not deny that it is a condition, only that it is not an illegal condition." The General Counsel reinforces this view by the further assertion that the answer admits that Respondent's position on "retrac- tion" was "unalterable." I cannot agree with that inter- pretation. According to a fair reading, the answer on its face, denies any unalterable demand. I subscribe to the more balanced and accurate definition of the pleadings expressed by the Respondent as follows: [W]e dispute General Counsel's self-serving inter- pretation of Respondent's answer Implicit in the Respondent's reference to the General Counsel's use of the term "condition," which was deliberately stated in quotes, is the fact that Respondent did not necessarily adopt this interpretation as his own. Moreover, a condition by definition is unalterable. If subject to alteration or withdrawn, it 'becomes a mere proposal. Hence by stating that the "condi- tion" was not unalterable, Respondent was clearly denying that the General Counsel's interpretation of Respondent's May 25 letter was correct.2 i Accord- ingly, there is no merit in the General Counsel's claim that the answer included a concession that Respondent, on May 25, 1983, conditioned resump- tion of bargaining upon retraction of the news arti- cle, or any issue which has not been litigated previ- ously under prior complaints in Cases No. 30-CA- 6609, etc. The Charging Party seeks to salvage the instant com- plaint on grounds quite distinct from any raised by the General Counsel in the complaint or elsewhere . In this respect, Respondent's letter of July 28 , 1983,22 is claimed to be indicative of the fact on May 25 , 1983, the latter engaged in "escalation" of unlawful conduct. In this re- spect, the Charging Party points to a statement in the May 25 letter as follows: Your committee has taken issue with our position, that ,as a condition precedent to continued negotia- tions, your committee must agree to and be bound by the loyalty clause provision which we have sub- mitted . . . . This issue was, in part, the subject of our May 9-13 hearing before the NLRB. We will not deviate from this position. The Charging Party argues that there is a difference be- tween what has heretofore been litigated fully at the hearing in Case 30-CA-6690, etc., and the above-cited statement by Respondent . As the argument goes, the ear- lier issue related to Respondent's insistence "on the Union's prior agreement" to the loyalty clause and its "enshrinement in a collective-bargaining agreement." From the above quote, the Charging Party argues that Respondent now insists that "members of the negotiating committee themselves, agree to and be bound by the clause, independent of the existence or nonexistence of a collective-bargaining agreement." The Charging Party's interpretation to the effect that Respondent now seeks an independent side , agreement is allegedly substantiated by Respondent's July 28, 1983 letter, insofar as it states "if, of course, reliable assurances from the Union of a type which are enforceable in a Court are forthcoming; then and only then will we bargain with the Union, 'bargain- ing' by definition being a mutual function ." Here again, an attentuated and self-serving construction is placed upon correspondence in quest of needless litigation.23 The quoted excerpt with other references on the July 28 letter in no way alter the position communicated by Re- spondent on May 25. The statement that there would be no bargaining at that juncture of the committee 's failure to agree with loyalty assurances paralleled and was sub- stantively indistinct from the issue previously litigated in Case 30-CA-6609, etc. Contrary to the Charging Party, the cited correspondence furnishes no reasonable basis for concluding that Respondent after close of the hearing in said case escalated the terms under which it would return to the bargaining table. To recapitulate, one need not go beyond the pleadings to discern that the alleged unfair labor practice in Case 30-CA-7830 derived exclusively from Respondent's May 25 letter. No parole testimony has been uncovered that might throw light on the intent underlying that docu- ment. Contrary to the proponents of the complaint, I find that it merely served as a reminder that the Ga- lewski matter was not the sole basis for Respondent's re- 20 See ALT Exh 12(a) 21 See AL.I Exh 13 Whether or not Respondent's counsel deliberately placed quotes around the term "condition" is a matter on which no opin- ion is voiced 22 See ALJ Exh 9 23 Even were I to agree to with the Charging Party's characterization, it would be of no moment , inasmuch as the complaint lays no challenge to Respondent's insistence on a loyalty pledge 478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fusal to bargain, but that its position in that regard was also predicated on the other contingencies litigated at the May 9-13 hearing in Case 30-CA-6609, etc., namely, FEMT's failure to agree to the loyalty proposal. In any event, since the May 25 matter simply urged the Charg- ing Party to retract the Labor Press article, and did so employing the language of request and exception, rather than ultimatum or condition, facts negate the 8(a)(5) and (1) allegation, dismissal of Case 30-CA-7830 is warrant- ed on that ground alone. Accordingly, it is concluded that no conduct constituting an actionable violation of Section 8(a)(5) and (1) has been shown. 2. Beyond the foregoing is the question of collateral estoppel. The initial unfair labor practice charge based on the Respondent's May 25 letter was filed on June 6, 1983.24 While that charge was pending, on June 10, 1983, the General Counsel filed a motion to reopen the record.25 When I denied that motion on June 14, 1983, the General Counsel filed, a request for special permis- sion to appeal with the Board.26 Through said appeal the misconduct attributed to Respondent was described as follows: By letter to the Union dated May 25, 1983, and in direct response to the Union's May 23 letter; Re- spondent continued to refuse to meet and negotiate without the Union first agreeing to the' loyalty clause. Thus, the General Counsel then characterized the letter as manifesting " that the Respondent is now refusing to meet and bargain purportedly solely because of the refus- al of the Union to agree to the loyalty clause." (Empha- sis added.)27 At that point, the Board was advised by the General Counsel as follows: The Region of course, could issue a new com- plaint but such an action would be bureaucratic non- sense. [Emphasis added.]28 The Board on July 12, 1983, issued a telegraphic order denying the General Counsel's request for special per- mission to appeal. Apparently, this led to a rethinking of the matter and 2 weeks later, on July 28 , 1983, the Gen- eral Counsel issued the complaint in Case 30-CA-7830, alleging, the following as the sole unfair labor practice involved: Respondent continued in its refusal to meet and bar- gain' with FEMT and placed an illegal condition on bargaining by demanding a published retraction of the October 14, 1982, Labor Press newspaper arti- cle. Having been subjected to litigation of the May 25 letter through a motion to reopen the record, on resolution that issue against the General Counsel, Respondent right- fully could assume that issues generated thereby had been disposed of with finality. Since a charge was pend- ing in this case at all times material, the General Counsel enjoyed an election as to the appropriate, course of attack, and having opted against issuing,a new complaint, is bound by that choice. Judicial safeguards designed to avoid duplicate, litigation as well as a wasteful and abu- sive invocation of administrative processes ought to pre- vail over the fact that the complaint in Case 30-CA- 7820 adopted a new and variant interpretation of Re- spondent's letter. 3. Quite independent of the issue of estoppel is the question of administrative convenience. For the substan- tive equivalent of the 8(a)(5) and (1) allegation herein has already been litigated and is awaiting decision in Case 30-CA-6609, etc. At stake in that proceeding is Re- spondent's contention that it was privileged to use "self help," including suspension and disruptions of bargaining to protect itself against "disloyal act" and their effects. Among the "disloyal acts" under scrunity in that case was the "October 14, 1982 Labor Press newspaper arti- cle." Thus, it was plainly forseeable that Case 30-CA- 7830 presented no new situation, not subject to resolu- tion under the prior complaints. For if, in consequence of Cases 30-CA-6609, etc., Respondent should maintain that, as a matter of law, it was privileged under NLRB v. Electrical Workers IBEW Local 1229 (Jefferson Standard Broadcasting Co.), 346 U.S. 464 (1953), and related cases, to use "self help". to counter media attacks by its em- ployees such a result would validate the stance taken by Respondent on May 25, 1983. On the other hand, if Re- spondent was not privileged to restrict the bargaining process in this fashion, an unfair labor practice would be found, warranting a remedy, that would-redress any re- lated limitations imposed on the bargaining process in- cluding any and all implied in Respondent's letter of May 25, 1983. Accordingly, to sustain the instant com- plaint would countenance a multiplicity of, actions, lack- ing in rational foundation and contrary to interests to be perserved under the Act. In concluding, it is noted that Respondent has ob- served that the maintenance of this new cause of action is no more than "a furtherance of . . . unrelenting har- assment of the Respondent." While doubtful of many of the charges and countercharges uttered to date on behalf of Respondent, the latter has not been taken lightly. For, in all fairness, it was predictably clear from the outset that further action on Respondent's May 25 letter would' accomplish nothing other than a needless waste of re- sources and prolongation of decision on important issues already litigated and awaiting decision. In the total cir- cumstances, including the' overall bent toward litigious excess already exhibited in connection with this ongoing labor dispute, the shifting and boorish insistence on fur- ther proceedings herein 'only has served to elevate Re- spond'ent's claim of harassment from the outlandish to the possible. Upon the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, I issue the following rec- ommended29 24 See ALJ Exh 3 25 See ALJ Exh. 4 26 See ALJ Exh 7 29 If no exceptions are filed as provided by Sec 102 46 of the Board's 27 See ALJ Exh. 7, p. 3 Rules and Regulations, the findings, conclusions, and recommended 28 Ibtd Continued MEDA-CARE AMBULANCE 479 ORDER It is hereby ordered that Case 30-CA-7830 be ser- vered from Cases 30-CA-66D9, 30-CA-7030, 30-CA- 7132, 30-CA-7132-2, 30-CA--7134, 30-CA-7134-2, 30- CA-7398, 30-CA-7648, and 30-CA-7672. IT IS FURTHER ORDERED that the complaint in Case 30-CA-7830 is dismissed in its entirety.' 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 pur- poses Gerald McKlnny, Esq., for the General Counsel. Barton M, Peck, Esq., of Milwaukee, Wisconsin, for the Respondent. Dean Dreiblatt, Field Representative, of Milwaukee, Wis- consin, for the Charging Party, Federation of Emer- gency Medical Technicians. during initial contract negotiations by failing to provide the certified Union with requested information; by refus- ing to meet until the alleged discriminatee, Robert Ga- lewski, ceased to act as the Union's designated agent for purposes of collective bargaining; by withdrawing a final offer and refusing to negotiate further because employees had engaged in protected concerted activity; and by con- ditioning any and all bargaining on the Union's accept- ance of its proposed loyalty clause. In its duly filed an- swers, Respondent denied that any unfair labor practices were committed. Following close of the hearing briefs were filed on behalf of the Respondent and the General Counsel. On the entire record in this proceeding,3 including my opportunity directly to observe the witnesses while testi- fying -and their demeanor4 and consideration of the posthearing briefs, it is found as follows: FINDINGS OF FACT DECISION STATEMENT OF; THE CASE JOEL A. HARMATZ, Administrative Law Judge. This proceeding was heard on consecutive days between May 9 and 13, 1983, in Milwaukee, Wisconsin, on an initial unfair labor practice charge filled on July 14, 1981, and separate consolidated complaints that issued on February 11 and .April 28, 1983, respectively. i The complaints al- leged that Respondent independently violated Section 8(a)(1) of the Act by coercive interrogation, actual sur- veillance, creating the impression of surveillance, threats of reprisals, and urging employees to form a committee as an alternative to activity on behalf of an outside union.2 The compliants further alleged that Respondent violated Section 8(a)(4), (3), and (1) of the Act by, on three separate occasions, suspending and finally discharg- ing its employee Robert Galewski, and similarly violated Section 8(a)(4), (3), and (1) by discharging another em- ployee Ralph Lisowe, all because of their having en- gaged in activity protected by the Act. Finally, it is al- leged that Respondent violated Section 8(a)(5) and (1) i A third complaint was issued, following close of the hearing, in Case 30-CA-7830 on July 28, 1983. By decision dated December 21, 1983 (JD-549-83), I severed and dismissed that proceeding 2 In the main, the independent 8(a)(1) allegations stem from an unfair labor practice charge filed on July 14, 1981, in Case 30-CA-6609, and a complaint issued on August 18, 1981 That complaint also included 8(a)(3) allegations based on the dischaiges of employees James K. Lund and Gary Cleven and the impaired job status of Bonnie Lund. The issues initially were resolved by informal settlement on February 19, 1982. In the instant proceeding, the segment of the settlement agreement pertain- ing to the 8(a)(l) allegations was set aside by the Regional Director. However, the terms thereof were not disturbed insofar as the 8(a)(3) alle- gations were concerned. Contrary to assertions by the General 'Counsel, the settlement did not fully remedy these latter allegations because the backpay accommodation did not include interest Serious questions exists in my mind as to whether the General Counsel, absent rational justifica- tion, is privileged to "pick and choose" between allegations in setting aside a Board settlement Apparently, through inadvertence, the General Counsel neglected to include the complaint in Case 30-CA-6609 in the formal exhibits, It being a self-authenticating document, the record is re- opened for the limited purposes of receiving that document as ALJ Exh 2 1. JURISDICTION Respondent, a Wisconsin corporation, is engaged, from its offices and places of business in Milwaukee and West Allis, Wisconsin, in the interstate and intrastate transpor- tation of persons by ambulance. In the course of said op- eration, during the calendar year ending December 31, 1982, a representative period, Respondent derived gross revenues exceeding $500,000 and received products, goods, and materials valued in excess of $50,000 from other enterprises, which received said products directly from points located outside the State of Wisconsin. The complaints allege, the answers admit, and I find that Respondent is now, and has been at all times materi- al herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaints allege, the answers admit, and I find that 1199W, National Union of Hospitals and Health Care Employees, RWDSU, AFL-CIO (1199W) and the Federation of Emergency Medical Technicians, Wiscon- sin Federation of Nurses and Health Professionals, American Federation of Teachers, AFL-CIO (FEMT) are now, and have been at all times material, labor orga- nizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues of practical remedial concern in this pro- ceeding are limited to questions whether during the course of negotiations with a newly certified labor orga- S Errors disclosed in examination of the official transcript of proceed- ing are corrected in Appendix B [omitted from publication) 4 Credibility rulings made hereinafter, from time to time, are accompa- nied by objective rationale. Such references merely serve to reenforce and should not be construted as discounting my impressions gained from first-hand observation of the witnesses. Furthermore, although it should go without saying, testimony, whether or not contradicted, is rejected by implication to the extent that it includes matters that might not be recon- ciled with expressly credited evidence Cf. Herbert F. Darling, Inc, 267 NLRB 476 (1983). 480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nization, Respondent engaged in acts of intimidation, in- cluding the discriminatory discharges of two employees, Robert Galewski and Ralph Lisowe. Also of major import are allegations that Respondent engaged in an un- lawful refusal to bargain by withholding requested infor- mation of a nature relevant to the bargaining process, by conditioning its willingness to participate in good-faith bargaining on the Union's suspension of protected activi- ty and acceptance of a loyalty clause and by suspending' negotiations until such time as the Union removed Robert Galewski from the position of union president and representative on the Union's bargaining team. An important procedural issue is generated by the General Counsel's attempt to relitigate, on a segmented basis, por- tions of a previously settled complaint. B. Factual Overview This proceeding is central to an ongoing labor dispute involving Respondent and its employees. The litigation between Respondent and Region 30 of the National Labor Relations Board involves unfair labor practice charges filed by two distinct labor organizations. My own experience with the parties has left me with the solid impression that it will take more than remedies available under this Act to cool down the hostilities manifested by the parties through their courtroom de- portment, the quality of testimony offered from the wit- ness stand,5 and the vituperation evident in posthearing submissions. Basically, the three complaints and the nine separate unfair labor practice charges that lend structure to the instant proceeding stem from disenchantment with work- ing conditions first manifested by Respondent's emergen- cy medical technicians (EMTs) in 1981.6 In June of that year an employee meeting, attended by a union official, was held at the home of Bonnie Lund. A second contact between Respondent's employees and an affiliated labor organization took place on June 28, 1981, when a meet- ing was held at the office of 1199W. The latter filed unfair labor practice charges in Case 30-CA-6609 on July 14, 1981. Thereafter, on July 22, 1981, at a meeting sponsored by the Respondent, employees shelved their interest in 1199W, by expressing a will to meet with the Employer through an internal committee. For the next month, the employee committee met with the Company for the purpose of negotiating conditions of work. On August 18, 1981, the complaint in Case 30-CA-6609 issued. On August 31, 1981, 2 weeks later, the employee 5 It was my distinct impression at the hearing, and after studying the transcript, that the ill will between the Employer, certain employees, and the Union in this proceeding was not only marked by a maelstrom of petty accusations and counteraccusations, but that the deeply held hostil- ities on both sides allowed prejudicies to influence testimony and adher- ence to the oath In the critical areas, neither the witnesses for the Gener- al Counsel nor those presented by the Respondent were beyond suspi- cion In the final analysis, the critical issues of credibility have been re- solved in the light of overall impressions as to probabilities derived from objective and indisputable facts,, and other matters that I directly ob- served while presiding over this hearing. 5 EMTs are certified by the State of Wisconsin and operate Respond- ent's emergency vehicles as two-person teams. They are primarily en- gaged in transport of the elderly by ambulance to various locations within the environs of Milwaukee, Wisconsin committee distributed a written letter to employees stat- ing as follows: It is the recommendation of the committee to affili- ate with 1199W, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, be- cause it is in the best interest and advantage to the employees of Meda-Care Ambulance.7 The notice in question also indicated that employees could reg- ister their votes for affiliation and receive additional information at a meeting to be held on September 9, 1981, at the Union hall. Despite the foregoing, the committee continued to ne- gotiate with Respondent. On October 19, 1981, it adopt- ed a formal name "Professional Emergency Medical Technicians Employees" (PEMTE). Eventually, Local 1199W disclaimed an interest in Respondent's employees in November 1981. The employees, through PEMTE continued to negotiate with the Respondent through Jan- uary 1982. In that month, Robert Galewski, an alleged discriminatee in this proceeding, contacted FEMT. On January 27, 1982, FEMT filed a representation-pe- tition seeking a unit of Respondent's employees. On February 19, 1982, a settlement agreement was en- tered in Case 30-CA-6609. On March 5 and 9, 1982, a settlement was conducted on the FEMT petition with the latter being designated by a vote of 19 for, and 4 against. Later, on March 17, 1982, FEMT was certified as the exclusive representative of a unit of Respondent's EMTs. On May 5, 1982, FEMT requested negotiations. On May 25, 1982, Respondent discharged Galewski, who had served as a union observer during the March election. Galewski also had been a principal spokesman for the employee committee dating back to September 1981, and was one of the main protagonists for affiliation with FEMT. He appeared as a witness for the General Counsel in another unfair labor practice case against Re- spondent in March 1982. Also on May 25, 1982, Ralph Lisowe, a discriminatee under the instant complaint, was terminated. Thereafter, on June 10, 1982, negotiations between Re- spondent and FEMT commenced. Galewski, though, no longer on Respondent's payroll, continued as a member of the Union's negotiating team. At a negotiating session held on June 15, 1982, FEMT orally requested a copy of the Company's malpractice policy. This was followed by additional, requests for that same document registered by FEMT on July 21, 1981, and August 5, 1982, and a'written request on December 7, 1982. On October 6, 1982, the Union sought to publicize the unresolved contract dispute by handbilling and picketing at one of the Respondent's two stations. At a bargaining session on October 7, 1982, Respondent registered a strong protest of the handbilling and picketing, charac- terizing said activity as "infantile," "counterproductive," and "untruthful." The Company offered to present a ' See G C Exh 5 MEDA-CARE AMBULANCE - 481 final offer at that time in order to put an end to the handbilling and picketing. On October 14, 1982, an article appeared in the Mil- waukee Labor Press quoting Galeski and reproducing one of the Union's handbills, which criticized the Respond- ent's position in the negotiations. On October 19, 1982, the Union again engaged in pick- eting. At a bargaining session on October 20, 1982, Respond- ent indicated that its final offer would be retracted be- cause of the aformentioned activites, including he article that appeared in the Milwaukee Labor Press, as well as the resumption of picketing on October 19. At'that ses- sion, Respondent indicated that no final proposal would be forthcoming in that the proposal mentioned on Octo- ber 7 was designed to prevent the Union from engaging in the very activity that subsequently took place. Re- spondent added that the Company would make no wage proposal until the Union agreed to Respondent's --pro- posed loyalty clause. For this reason, bargaining was suspended by Re- spondent between October 20, 1982, and January 20, 1983. On February 9, 1983, FEMT was finally given a copy of the repeatedly requested malpractice policy. In a subsequent session on March 9, 1983, Respondent demanded a clause whereby employees and their repre- sentatives would be subject to an expanded loyalty clause.8 It was indicated that if the Union agreed to this proposal, Respondent would maintain its current wage rate, but if violated, all wage rates would be reduced to the Federal minimum. On April 20, 1983, Respondent, on the basis of infor- mation assertedly within its possession, charged that Ga- lewski was employed by a competitor and in that capac- ity had actively solicited accounts of the Respondent. The Union was informed that Respondent would refuse to negotiate until Galewski had been removed as a union officer and bargaining committee member. Prior to close of the hearing, FEMT had refused to honor that demand and the parties have not met since April 20. C. The Presettlement Conduct (Case 30-CA-6609) In the complaint issued by the Regional Director for Region 30 on February 11, 1983, a settlement agreement in Case 30-CA-6609 was set aside insofar as it alleged that Respondent had engaged in certain independent vio- lations of Section 8(a)(1) during the 3-week period be- tween June 15, 1981, and July 3, 1981.9 Ordinarily, the action by the General Counsel in coun- termanding a settlement argument will receive the appro- bation of the Board if it be shown that a respondent en- gaged in postsettlement unfair labor practices. (See, e.g., Laborers Local 185 (Joseph's Landscaping), 154 NLRB 1384 (1965)). Despite the latitude extended in such mat- ters, I know of no precedent holding that such an exer- 8 See G C Exh. 38 o On the face of the complaint it is alleged that the settlement agree, ment was set aside because, by virtue of the postsettlement conduct set forth therein, Respondent "has violated the terms of the aforementioned settlement agreement." See G.C Exh 1(t). cise of discretion is conclusive and nonreviewable in cir- cumstances where rehtigation of settled allegations will produce results inimical to statutory interests. As hereto- fore indicated, the settlement involved here not only called for notice posting and a full conventional remedy with respect to independent 8(a)(1) allegations, but also adjusted allegations of discrimination involving three em- ployees. The General Counsel has declined to set aside these 8(a)(3) allegations, now stating that such a course would have been "frivilous [sic]; to say nothing of the needless additional litigation expenses to Respondent." 1° In fair- ness, however, if relitigation of the 8(a)(3) allegations might be dubbed "frivolous," for the reasons stated below, further delibrrations with respect to the stale and once litigated independent 8(a)(1) allegations smacks of the inane.' 1. From the standpoint of background, the scotched 8(a)(3) allegations would prove far more valuable than any findings of coercive interrogation or creating the im- pression of surveillance. Unlike the latter, which would violate the Act irrespective of motive, any presettlement acts of discrimination would weigh ,heavily in the deter- mination of whether Respondent harbored a continuing proclivity to invoke discipline as means of discouraging union activity. 2. The utility of the presettlement 8(a)(1) allegations is diminished by their staleness. They relate to a timeframe during which neither Robert' Galewksl nor Ralph Lisowe, the alleged discriminatees in the present case, were engaged in activity of a protected nature. A differ- ent labor organization was involved and there is no sug- gestion in the record, whatever, that FEMT had any knowledge that employees of Respondent were then in- terested in representation. Moreover, the presettlement allegations, with a, single exception, involved 8(a)(1) con- duct attributable to Jonathan Kostreva and Charles Fiast. Fiast, who formerly served as Respondent's general man- ager, terminated his employment in January 1982 and it does not appear that Kostreva remained in the Respond- ent's employ at any time during the period in which postsettlement unfair labor practices allegedly occurred. Io This assertion is among several by the General Counsel that were shifting and inconsistent For during the hearing, the General Counsel did attempt to litigate the settled 8(a)(3) allegations. I foreclosed him from pursuing the matter. A further contradiction is evinced through the Gen- eral Counsel's explanation at the hearing for refusal to set aside the settle- ment agreement with respect to the issues of discrimination . It was then explained that said action would be "frivolous" inasmuch as "the Region has a full remedy, with respect to those matters." The exact opposite proved to be true ,For, when the General Counsel was subsequently probed as to the extent of compliance with the settlement, he conceded that all of the independent 8(a)(1) allegations on Case 30-CA-6609 were incorporated in a conventional notice, and that said notice had been posted for the required 60-day period This full remedy of the 8(a)(1) conduct was complimented by only partial relief for the discrimmatees in that the backpay awarded was compromised to the extent that interest was excluded I I I would note in this regard that at the hearing, my expressed admo- nition to the General Counsel that certain of the presettlement conduct would not persuasively support a finding of union animus and my efforts to dissuade litigation of those stale matters was met tersely by the Gener- al Counsel's comment- "I'll put the evidence in." 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. The utter waste in rehtigating the presettlement 8(a)(1) is demonstrated by the further fact that this will not be the first climbing of the ladder with respect to this subject matter. In a complaint issued on November 20, 1981, in Case 30-CA-6746, Respondent was charged with violations of Section 8(a)(4), (3), and (1) by conduct that included its termination of Bonnie M. Lund. A trial was conducted thereon by Administrative Law Judge Irwin H. Socoloff on March 15 through 18, 1982, who later issued his decision sustaining each and every allega- tion of that complaint on January 11, 1983.12 It is appar- ent from Judge Socoloff's decision that the precise inde- pendent allegations of Section 8(a)(1) attributed to Fiast, Kostreva, and Respondent's co-owner, Darwin Larsen, were litigated and the subject of specific findings in that proceeding. The salient aspects of the testimony before Judge Socoloff was uncontradicted, and thus there was little chance of modification of his findings on review. Nonetheless, on February 11, 1983, a month after issu- ance of Judge Socoloffs decision, the General Counsel again sought relitigation of these settled and once litigat- ed issues by the complaint in Case 30-CA-7030, et al.13 To say the least, it should have been apparent, in any event, that animus reflected in these outdated independ- ent 8(a)(1) allegations would certainly be eclipsed and re- duced to the cumulative by the propensity to discrimi- nate, which emerges from the finding by Judge Socoloff that Respondent terminated Bonnie Lund in violation of Section 8(a)(3). Under established precedent, a prior unfair labor practice finding is relevent to the evaluation of the lawfulness of subsequent discharges of union pro- tagonists. See, e.g., Southern Paint & Waterproofing Co., 255 NLRB 125, 129 (1978). In the circumstances, it is concluded that relitigation on a piecemeal basis of the previously settled independ- ent 8(a)(1) allegations involved arbitrary action by the Regional Director, patently lacking in good sense. Mean- ingless, cumulative litigation against private citizens is never in the interest of the Act and might only serve to reduce public confidence in the mission of the National Labor Relations Board. Moreover, where, as here, cur- rent, viable unfair labor practice allegations seek a remedy in the face of a curtailed bargaining relationship, litigation of surplusage serves merely to prolong the availability of appropriate relief and thereby tends strongly to frustrate, rather than enhance statutory ob- jectives. For these reasons, I shall dismiss the presettle- ment 8(a)(1) allegations as failing to raise issues warrant- ing relief under the Act. D. The Alleged Discrimination 1. The union activity of the alleged discriminatees a. Robert Galewski The complaint alleges that Respondent violated Sec- tion 8(a)(1), (3), and (4) of the Act by disciplinary sus- pensions given to Galewski on February 5, March 3, and May 20, 1982, and finally, by discharging him on May 25, 1982.14 Galewski was hired on February 12, 1981. After a brief stint as a supervisor, he served as a full-time EMT. He did not join in the early effort by his coworkers to bargain collectively with the Respondent. It was not until after the termination of Bonnie Lund in September 6, 1981 that his interest in protected activity commenced. About September 6, he became a member of the employ- ee committee and was soon to become its spokesman. With his leadership, the committee adopted the name PEMTE, and his home became PEMTE headquarters. He made it clear that employees felt strongly about the claims they made in negotiations and that they would be pursued vigorously. Later, he contacted FEMT and was the driving force behind designation of FEMT as the employee representative. His role in this regard was evi- denced by his having been the employee who initially contacted FEMT, as well as his distribution of authoriza- tion cards on behalf of that Union, and his serving as union observer at the election of March 5 and 9. He tes- tified on behalf of the General' Counsel at the hearing later in March conducted before Judge Socoloff in the Bonnie Lund case. On May 5, Respondent was formally notified that the elected officers and other officials of FEMT, included Robert Galewski as its newly designat- ed president. 1 s b. Ralph Lisowe The complaint alleges that Lisowe was terminated on May 25 in violation of Section 8(a)(1), (3), and (4) of the Act. Lisowe was hired on January 19, 1981, and was em- ployed as an EMT. His union activity appeared limited and he was not among the principal protagonists of the Union. However, though off sick, he presented himself at the polls and voted in the March election. In early April, Lisowe was assigned to work as Galewski's crew part- ner. He claims that later, when Galewski became presi- dent of the Union, he discussed the Union with Galewski who encouraged him to talk to other employees and so- licit their support of the Union. Lisowe claims to have obliged. Nonetheless, he at no time participated in the distribution cards or union literature; it does not appear that he engaged in any organizational activity prior to the designation of Galewski as president. Lisowe was subpoenaed by the General Counsel and did attend the March 19 hearing before Judge Socoloff but did not tes- tify.16 Although the matter is not free from doubt, because uncontradicted, I am willing to credit Lisowe's testimo- ny that at some time between March 15 and the end of March 1982 he had a conversation with Supervisor Linda Wiedemann in the dispatcher's office, described by Lisowe as follows: Linda asked me if I received a union card; and I re- plied, yes. she asked me if I signed it; and I said, 12 See G.C. Exh 3. Subsequently, on August 3, 1983, the decision of Judge Socoloff was adopted by the Board. 266 NLRB 1208. 13 See G.C. Exh 1(t) 14 All dates refer to 1982 unless otherwise indicated. 1s See G C Exh. 23 , 16 See G.C. Exh. 2. MEDA-CARE AMBULANCE yes, I did And she asked ine if I turned it into the Union representative; and I said yes, I did. And she asked me what my feelings were on the Union; and I said, well, the employees need to benefit for the wages and try to have better working conditions and so forth for the employee's position.17 2. The Galewski suspension of February 5, 1982 On January 27, FEMT filed an election petition in Case 30-RC-4111. By letter dated January 30, Galewski informed the Regional Director in connection with the aforesaid election petition that: While the PEMTE collective bargaining committee is interested in this matter for the benefit of our membership, it is our decision not to intervene, de- cline the right of representation and not be consid- ered a party in these procedures. is About 2 weeks earlier, in mid-January, Russell Barczak had been named to replace Fiast as Respondent's general Manager; Galewski personally delivered a copy of the above letter to Barczak in addition to posting another on the bulletin boards.19 This posting was accompanied by a copy of a memorandum entitled "Sunset Edition," stat- ing that PEMTE had declined to support FEMT while urging employee to vote "yes" for FEMT in the upcom- ing election. During the next week on February 5, Barczak tele- phoned Galweski and informed him that he would be suspended for 8 hours without pay effective February 8 because he allegedly parked his personal automobile in a spot reserved for management in violation of company policy. The General Counsel contends that this was "the first illegal step in [a] thinly veiled attempt to establish a case of progressive discipline against Galewski." I dis- agree. There is no dispute that prior thereto on January 29, Barczak posted a notice to employees stating as fol- lows: The parking places directly across from the offices between Monday thru Friday are to be used ONLY BY MANAGEMENT AND SUPERVISORY PERSONNEL .20 Also beyond controversy is the fact that at 6:30 a.m. on Thursday, February 4, after Russell Barczak reported for work, Galewski's car was parked in a management park- ing space. It was not removed until 8:30 a.m., the end of Galewski's shift that morning. The General Counsel seeks to excuse this clear viola- tion of Respondent's policy on the ground that Galewski 14 The complaint alleges that Respondent violated Sec. 8(a)(1) on the basis of this incident Having credited Lisowe's undenied testimony, and as the questioning was not shown to,have been accompamed by protec- tive safeguards, and apparently failed to serve any recognizable legitimate employer interest, I find that it tended to impede Lisowe in the exercise of his Sec 7 nights and violated Sec 8(a)(f) of the Act is See G C. Exh 15(b). 19 Although Galewski testified otherwise, it was my impression that he and Barczak shared a personal dislike for each other. I also sensed that Galewski labored under an attitude of rivalry with Barczak that probably predated the latter's elevation to the position of general manager 20 See R Exh 9 483 had obtained permission" from Mary Jane Barczak to park in the management spot. The latter is the wife of Russell Barczak and a dispatcher and supervisor. Whether or not permission was granted gives rise to a critical issue of credibility derived from a telephone con- versation at approximately 11 p.m. on February 3 be- tween Galewski and Mrs. Barczak. According to Ga- lewski in that conversation, he informed Barczak that there was no other place for him to park his car and therefore he requested permission to park in a manage- ment space. To this, Barczak allegedly responded, "I suppose you'll have to." Galewski asserts that she then stated, "Russ is going to be in between 6 and 6:30, is there room to park his car?" According to Galewskt the conversation ended when she responded, "Yes, the two adjacent [sic] spaces are open." Galewski went on to testify that he was dispatched on a call the next morning at approximately 6:30 a.m., and that he observed Russell Barczak's car in the garage on his departure. Galewski related that at approximately 8 a.m., he went to Barczak's office to obtain his paycheck, which was personally delivered by Barczak without comment. Galewski related further that the next day, February 5, 1982, Barczak telephoned him advising of the suspension for the parking in the management space. Galewski claims to have protested, indicating "No, I asked permis- sion." Barczak allegedly said, "You did not ask permis- sion, you just went ahead and parked there." Galewski inquired whether he would get a letter for his file, to which Barczak responded in the affirmative. On Febru- ary 12, 1982, Galewski claims that in obtaining his pay- check from Barczak he inquired about the whereabouts of his suspension letter. Barczak allegedly responded that it had been drafted, but it had not been typed and cor- rected as yet. The letter was delivered to Galewski on February 17, 1982.21 Galewski's account of the salient aspects of the con- versation was as follows: When I had talked to him [Galewski], I said "Oh incidentally", I said, "if you hear the garage door going up, early in the morning, I said that it's Russ, he said he's going to be in around '6 or 6:30 so don't be alarmed. And Mr. Galewski asked, at that time said well, "I am parked in a management spot, I 21 Gary Hansen, an EMT, who allegedly worked with Galewski on February 3, testified that he overheard the telephone conversation be- tween Galewski and Mary Jane Barczak He claims to have heard Ga- lewski request permission to park his vehicle in the management area and to have overheard Barczak state "they will have to, or words to that effect." Hansen was one of several witnesses for the General Counsel who astonished me with their attentiveness to matters that at the time would hardly have stirred one's interest, to say nothing of their remarka- ble capacity to recall the details of those incidents The conversation in question appeared to be of a routine nature. Just why Hansen would have eavesdropped remains a mystery Needless to say Hansen's testimony both that he was aware that Galewski was talking with Barczak because of the tense tone in Galewski's voice and that he could overhear state-, ments made by Barczak on the telephone struck as contrived and unbe- lievable It is true that Hansen is an incumbent employee who ostensibly had nothing to gain by violating the oath Nonetheless, my disbelief of his testimony is so strong as to arouse curiosity about to just what or who could have provoked false testimony of this sort. 484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD suppose I am going to have to move it." I told him, "yes, I suppose you're going to have to move your car there. 1122 She also related that after she hung up, she informed Russ Barczak, that Galewski was parked in a manage- ment spot and that she told him the car would have to be moved.23 Russell Barczak testified that the next morning when he reported to station 1 he observed Galewski's car in the management parking area. He explained that he elected to do nothing about the incident at that time be- cause he first wished to consult with Respondent's attor- ney. He offered that he felt discipline was in order be- cause of the attitude reflected by Galewski in defying the parking policy that had been stapled to paychecks on January 29, and the instruction given by Barczak's wife the night before. His testimony was to the the effect that he acted on his impression that Galewski had deliberate- ly defied one of the first authoritative acts by Barczak following his advancement to general manager. The testimony of Mrs. Barczak struck as entirely more probable than that of Galewski. I find it difficult to be- lieve that she would have accepted his representation that the management space represented the only accepta- ble place for Galewski to park within the vicinity of sta- tion 1 throughout that night.24 Her version that she simply agreed with Galewski's indication that it would be necessary for him to remove his car seemed the more believable. As for Galewski himself, my own impression of him, suggested accuracy in Barczak's characerteriza- tion concerning his rebellious instinct toward authority, an opinion confirmed by a number of factors evident on this record. Barczak rightfully assumed that Galewski had deliberately ignored its parking policy as well as a direction by a supervisor consistent with that policy. Having credited the testimony of Barczak, I find that Galewski in this instance, engaged in-conduct that made him a proper subject for legitimate discipline. 3. The Galewski suspension of March 3, 1982 It will be recalled that on February 17, Galewski re- ceived a warning letter based on his violation of Re- spondent's parking policy. That day Galewski's partner was Sean Kleatsch. At approximately 6:37 p.m. that day 22 In his brief, the General Counsel represents that Barczak did not deny giving Galewski permission to park in the management spot at that time This characterization is totally inconsistent with the plain import of Barczak's account of what transpired in the course of this telephone con- versation 22 Russ Barczak allegedly was in the same room during the phone con- versation He indicated that he did not pay much attention to what was being said , until his wife in a raised tone of voice stated "I guess you'll have to " He claimed that he did not learn what this meant until after she hung up, whereupon she explained that Galewski had informed her that he was in management parking space and had stated , "I suppose I'm going to have to move " His wife allegedly went on to explain that it was to this that she responded, "Well, I guess you're going to have to " 24 Galewski explained that he sought to park indoors that evening be- cause his car had been vandalized previously, because it was very cold that night, and because the area proximate to station 1 was less than de- sirable While this supports the reasonableness of Galewski's preference, nothing in them suggests that conditions existed that evening so unusual for February downtown Milwaukee as to warrant his alleged statement to Mrs Barczak "there is no other place for me to park my car " they received an emergency, or "Code 3," call to Mt. Carmel Nursing Home. Galewski drove. The crew ar- rived at the nursing home at 6:49 p.m.25 Galewski con- cedes that he at no time used his red lights and siren in responding to Mt. Carmel. He also acknowledges that on their arrival they were approached by a nurse who asked, "What took you so long," and then sought the driver's identity. The patient was then prepared and transported to St. Luke's Hospital. Galewski did use the emergency alerts on the final leg of the dispatch from Mt. Carmel to St. Luke's Hospital. From the hospital, Galewski telephoned the dispatcher on duty, Clarence Huttle, and informed him that the nurse had complained about their response time.26 When he asked Huttle what the response times were, Huttle re- plied "there is nothing wrong with that response time, it's a great response time." Galewski acknowledge that in a second telephone conversation with Huttle, the latter inquired whether the nurse was "irate" and that both Kleatsch and Galewski informed him that she was. On February 18, Barczak telephoned Galewski indicat- ing that he wanted to meet with him the next day con- cerning the Mt. Carmel run. He suggested that Galewski bring a representative of his choosing. On February 19, a meeting was held at station 1.27 Respondent's counsel, Barton Peck, Barczak, and Huttle were present for the Company. Dean Dreiblatt, a repre- sentative of FEMT, accompanied Galewski. The meeting was opened with Peck indicating that the format would be "investigatory" and that no charges had been filed nor had there been any formal complaint from the nurs- ing home. There was some discussion concerning the re- sponse time and inquiry about why Galewski had not used red lights and sirens. To this latter inquiry, Ga- lewski responded, "I did not see any -reason to use them." When asked by Peck to explain further, accord- ing to Galewski, he explained that the vehicle's steering had been acting improperly,28 that the road was wet and 2s The run from station 2 to Mt . Carmel traverses some 6 to 7 miles, most of which is expressway There is no dispute that the lapsed time experienced by Galewski -Kleatsch on that run was 12 minutes 2 6 Huttle did not testify Barczak testified that on the same morning, Huttle explained the incident to him , reporting that he informed Ga- lewski that he had a very good time from station 2 to Mt Carmel . Hattie told Barczak that, in making this statement to Galewski , he had assumed that the crew had responded with red lights and siren 27 It will be recalled that a settlement stipulation was executed on this date in Case 30-CA-6609 28 The vehicle in question was unit 70 Galewski testified that this ve- hicle had previously been serviced because of a steering problem He claims several weeks earlier he had picked it up from the service facility and in driving it back to the station, detected nothing improper in its han- dling He claims that he first became aware of a continued malfunction on February 17 in the course of the Mt Carmel run In this connection, another EMT, James Lund , who was Galewski's partner earlier that day, testified that another supervisor , Kenneth Mohr, approached him on Feb- ruary 17 and asked how the vehicle was running. Lund claims to have responded, "I thought it was running fine other than i thought it might have a problem with the steering " From all appearances , the steering reference was nothing more than argumentative excuse It failed to fur- nish rational explanation for Galewski's failure to use emergency equip- ment at any time during the run Any impairment in the steering would hardly have been noticeable at the slow speeds to be encountered before the vehicle would have reached the expressway MEDA-CARE AMBULANCE icy,29 that there was a lot of tral'fic,30 and that he had green lights or arrows through the intersections. 31 He indicated that most of the route was on the expressway, and that the speed limit on the expressway was fast enough.32 There was conversation between Peck and Dreiblatt as to the existence of a company policy concerning the use of red lights and siren and according to Galewski, Peck responded that there was such a policy "in the company rules and regulations."33 Dreiblatt and Galewski insisted that the policy be produced, while Barczak attempted to explain that the policy had always existed in practice. In this latter regard, it is not without significance that Ga- lewski's own testimony at one point indicated that Code 3 was synonymous with operating red, lights and siren in- sofar as he testified that, "I have been assigned by dis- patchers, on Code 2 calls to run Code 3," a colloquialism that in the context could only have meant that red lights and siren are an inherent adjunct of a Code 3 response. Barczak scheduled a second meeting for March 2, and requested Galewski to at that time express his position in writing.34 In a letter dated February 25, Galewski ap- pealed to Barczak to postpone that meeting on grounds that he had a prior commitment, and also enclosed a memorandum, together with statements of six EMTs as to their views on whether the use of red lights an sirens during emergency calls was mandatory or discretionary with the driver.35 Galewski 's memorandum was aggres- sively termed, starting with the declaration that manage- ment had failed to produce evidence of an existing policy concerning the use of red lights and sirens, and going, on to charge that the existence of such a policy would be "inherently unreasonable." It went on to remind Re- spondent of Galewski's participation in activity protected 19 Under the scenario depicted by Galewski he would not have known of any icing he described until well after he made the initial judgment not to use red"lights and siren, In any event, I see nothing incompatible in the use of red lights and siren and the need to proceed cautiously at slow speeds, 30 Under Wisconsin law an emergency vehicle is not entitled to right of way unless operating with red lights and siren Thus, the failure to use such equipment might well expose the operator to liability for negligence in the event of collision, a result that would not obtain had emergency signals been utilized " Here again, even if true, Galewski could not have known of the green lights until well after his approach to the first intersection and his having already determined not to use red lights and siren. 32 Although the testimony of Galewski and certain other witnesses of the General Counsel suggested otherwise, the use of red lights and siren are often effective and necessary even at low speeds, 33 The General Counsel claims that a letter dated September 28, 1978, to Meda-Care from the Superintendent of the Milwaukee Health Depart- ment supports Galewski's position See G C Exh. 17 However, that letter deals with "excessive and unnecessary siren noise " On its face, it has no application where emergency alert systems are "necessary to produce safety of operation and clear paths for delivery." Furthermore, it expresses no need for regulation of the use of red lights While Galewski claims to have referred to this document in explaining his action to Peck and Braczak at the February 19 meeting, no reference to this letter was made in Galewski's written statement of position, which was dated Feb- ruary 25 See G.C Exh 18(b). I have my doubts as to the accuracy of Galewski's testimony in this latter respect. 34 See G C Exh. 18(a) 35 See G C Exhs 18(b) and 18(1) inclusive In essence, these state- ments are addressed to the discretion available to the EMTs while driv- ing on freeways They do not address, however, the fact that the Mt Carmel run of February 17 was not confined to freeways, but in advance thereof, required Galewski's unit to traverse heavily traveled streets 485 by Section 7 of the Act, and charged that this, together with the absence of a prior policy of discipline of em- ployees for not running red lights and sirens "continu- ously through a Code 3," suggested that . . . Galewski is being singled out for his protected activity." Along this same line, it argued, in reference to the meeting of Feb- ruary 19, "that the line of questioning engaged in by the employer resembled more an attempt to entrap and get Galewski than a genuine investigatory interview."36 Fi- nally, the statement warned that any discipline imposed in this case would be followed by charges of 8(a)(1) and (3) violations under the National Labor Relations Act.37 On March 1, Galewski told Barczak that the meeting would be held on March 2 as scheduled. When Galewski indicated that he had a conflict and would prefer to have it changed, Barczak stated, "Bob, if you're concerned about your job, you'll be there." Galewski indicated that that sounded like a threat, whereupon Barczak allegedly stated, "Bob, I'm on your side," repeating, "If you are concerned about your job, you'll be there."38 According to Galewski, that same day he and his part- ner Jim Lund were given a written dispatch hand deliv- ered by Supervisor Brenda Weidemann. The call card defined the dispatch as the 1600 block on North 24th Street. When they arrived, they found no such address. When they called back, they found that the correct loca- tion was the 600 block of North 24th Street. Also that day at 7 p.m., Galewski received a telephone dispatch from another supervisor, Bonnie Edwards. Ac- cording to Galewski, Edwards informed him that he had .,an emergency call to Marian Catholic Home," indicat- ing that the patient was going to County General Hospi- tal. However, the crew arrived at the Marian' Catholic Home only to learn that there had been no call at that location. Galewski checked with Bonnie Edwards, who indicated, "I did not say Marian Catholic Home, I said Marina View Manor [sic]." They then went to the proper location and completed the call without inci- dent.39 In the meantime, the March 2 meeting was held as scheduled. Referring to Galewski's written statement of position, Attorney Peck accused the Union of preparing that document, while indicating that Galewski "was being a political martyr for the Union," and that he was being "used for the Union's own interest." According to Galewski, Peck also charged Galewski with having co- erced coworkers and other people to write letters con- cerning their perception of the red lights and siren 36 It was my impression that the opposite was true Indisputable evi- dence points to that fact that Galewski and Dreiblatt were the source, rather than victims, of bullying style 3' See G C Exh 18(b) et seq 38 Galewski testified that Barczak chuckled as he made this statement 39 Galewski testified that since his hire in 1979 he had received errone- ous dispatches on only about six occasions He could not recall having ever received two erroneous dispatches on the same day The most recent prior incident was about a year earlier He had never been criti- cized by management for responding to the wrong location Although the matter is suspicious, responsibility for the errors, such as the Marina View Manor incident, is virtually impossible to assess At the same time, I believe it a bit farfetched 'to assume that Respondent's agents would de- liberately delay emergency runs in order to build a case against Ga- lewski 486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD policy. Peck is asserted to have called'Galewski a liar and also to have indicated that two who had submitted letters on his behalf, John Howe and Jim Lund, were also liars.40 Peck went on toAndicate to Galewski that the Compa- ny had rules and regulations and that he wanted Ga- lewski to understand their content. He then asked Ga- lewski whether, given the same circumstances in a Code 3 situation, he would run red lights and siren. Galewski's admitted response was "not necessarily." Indeed, Ga- lewski admitted when I questioned him that it was his position that his personal discretion should take prece- dence over any management policy that required red lights and sirens in a Code 3 situation. Shortly after the meeting, Galewski had a chance en- counter with Barczak and Peck. Peck inquired whether Galewski had learned anything from the meeting. Ga- lewski indicated that he refused to answer outside the presence of his representative and that he thought the meeting was over. Peck angrily responded: "Damit, the meeting is on when I say so, and you will answer my questions." Peck then confronted Galewski only a few inches away stating, "Did you learn anything?" Galewski answered, "Yes . . . I learned a little bit more about dealing with people." The next day, March 3, Barczak telephoned Galewski and advised him that he had been suspended for 24 hours because of the Mt. Caramel incident and that there would be a letter in Galewski's file to that effect. In ad- dition, Barczak indicated that as a condition for Galews- ki's return to work, he write a letter to the Company stressing two points: the first dealing with Galewski's recognition of the extreme responsibility of an EMT, and the second relating to how Galewski would conform his attitude and actions to such responsibility. Galewski indi- cated that his first comment to Barczak was to inform him that he had been supoenaed for the hearing concern- ing the Bonnie Lund discharge scheduled for hearing before Administrative Law Judge Irwin Socoloff on March 15. Subsequently, the representation election was conduct- ed on March 5 and 9. Galewski served as union observer on both days. On March 9, Gerald McKinney, counsel for the Gen- eral Counsel, notified the Respondent that five employ- ees were being subpoenaed in connection with the trial scheduled in Case 30-CA-6746 involving the discharge of Bonnie Lund. Included in that group were Robert Ga- lewski and Ralph Lisowe. Lisowe appeared at the hear- ing but did not testify.41 On March 11, Galewski deliv- ered the letter requested by Barczak.42 40 According to Galewski, Peck did say that he had used good judg- ment in not using red lights and siren on the expressway. This testimony is difficult to reconcile with the overall portrayal of Peck's stance at this meeting, which Galewski himself described as that of "ranting and raving " It is also difficult to believe that Peck would have made such a concession while attacking the coworkers and the statements they submit- ted to that very same effect 41 See G C Exh 2 42 See G C Exh. 20 On March 15 Galewski testified at the Bonnie Lund trial43 and also several days later appeared at the hearing as an observer. The promised warning letter concerning the March 4 suspension was given to Galewski on March 19, 1982. That letter informed Galewski that "the Company will not tolerate your attitude, your evasiveness and your dis- concern of Company policies, rules and regulations." Reference was made to the fact that when given the op- portunity to justify his failure to run Code 3 of the Mt. Carmel run, he responded solely by: "challenging the Code-3 policy and citing other problems . . . experi- enced with other employees and [threatening] us in the form' of a dare if we take disciplinary action." The letter closed with the following: "We expect that this construc- tive discipline will alert you to your responsibilities and the fact that the Company will fully enforce its rules and policies, regarding resonable [sic] standards of perform- ance of its employees." 4. The May 19 suspension and the May 25 discharges of Galewski and Lisowe On May 5, 1982, Respondent was formally notified that the elected officials of FEMT included Robert Ga- lewski as its newly designated president.44 It will be recalled that since early April, Lisowe and Galewski had been assigned to work as a team. On May 10 they were ordered to report to Barczak's office. Su- pervisor Clarence Huttle was in attendance. Lisowe and Galewski were informed that a "bag mask resuscitator" was missing from a vehicle they had worked on a previ- ous shift.45 In this connection, it is noted that the Com- pany's rules and regulations explicitly provide as follows: If equipment on a vehicle is discovered missing and unaccountable during a shift of a crew who checked that or those item(s) present on the vehicle checklist at the beginning of their shift, then each member of that crew shall be assessed half the cost of replacement of that/those item(s).46 Consistent with the above policy, Barczak indicated to Lisowe and Galewski that the cost of replacement would be approximately $9 each. Galewski protested: "there, wasn't any evidence that we had lost it." Barczak then asked whether the mask had been used. Lisowe acknowl- edged that on a call to DePaul-Bellevue, he removed the mask but believed he had returned it subsequently to its box. Barczak indicated that he would provide the crew a week or so to locate the mask, while offering the use of a company ambulance and telephone. 43 Galewski's testimony was corroborative of background testimony relating to 8(a)(l)-type conduct Respondent elected not to contradict him 44 See G C Exh 23 45 EMT John Howe confirmed that at the start of the shift in question he had been informed by the outgoing crew that all equipment was present in the unit. However, after checking, Howe discovered that the facepiece, a life-critical item, was missing Also acknowledged that he subsequently discussed the incident with Barczak. 4s See R Exh 5 MEDA-CARE AMBULANCE - In the meantime at some time during the course of the day on May 10 Barczak took a step calculated , by indi- rection, to disqualify Galewski from employment. This was accomplished by a report filed by Barczak with Stewart Burdick, an official of the Wisconsin State au- thority, which is responsible for licensing EMTs.47 That document urged removal of Galewski from the EMT system. It included detailed allegations against Galewski based on his conduct before and after the February 17 Mt. Carmel run, mentioning that Respondent had arrived- at a decision to terminate Galewski because the serious- ness of that incident but that of, because of his Union ac- tivity and organizing, he was given a 2-day suspension. The letter also indicated that despite this leniency, Ga- lewski filed NLRB charges challenging the suspension, a tact, which, according to Barczak, reflected adversely on Galewski's character . The letter went on to indicate that Galewski had a history of interpreting company policy the way he saw fit and that he had been terminated from prior employment with another ambulance service for that very reason. Galewski was also declared culpable in responding to the wrong nursing home, an incident that Barczak attributed to Galewski's attitude and total dis- concern for the life and safety of others, rather than a breakdown in communication. The next incident involving Galewski and Lisowe oc- curred about May 14, when another question was raised to Barczak as to the stocking of an - ambulance. Thus, EMTs Howe and Mary Jorin on reporting to work on May 13 inquired of Lisowe and Galewski if equipment or the unit was in order and were told "everything was there." In fact the unit lacked disinfectant, nasal cannu- las, an emesis basin, and a stethoscope. Howe who claimed to have been upset at this second incident re- ported the matter to Barczak. On May 18, Barczak consulted Attorney Peck. They discussed a local law that precluded employers from forcing employees to pay for lost equipment.48 It was agreed between them that this restriction could be skirt- ed by proposing to Lisowe and Galewski that they had a choice between discipline or paying for the missing face- piece. Following this conversation , on May 19, Barczak again met with Galewski and Lisdwe . The facepiece had not been located . Galewski denied responsibility, arguing that there was no conclusive evidence that his crew had lost the facepiece. Barczak indicated that the facepiece was missing and that they were to pay for it. He asked Galewski if he would do so . Galewski responded in the negative. He then addressed Lisowe who also expressed his intent not to pay. Barczak gave them the option of either sharing the cost or accepting discipline. Lisowe re- ferred to a past occasion when a sum of money had been deducted from his paycheck because of a missing item, and opined that this violated Wisconsin law. Barczak re- sponded by reinding Lisowe that he had been implica- 47 See R. Exh. 2(a). 4a The exact nature of this law is undefined by credible evidence on the record. I certainly mistrust the interpretations thereof by Lisowe and Galewski It is possible that it merely restrains employers from withhold- ing such sums from pay, while leaving other means of collection unregu- lated. 487 taed in an act of misconduct involving the use of Meda- Care's name in effecting personal purchases of nitrus oxide, a "high"-inducing chemical. Galewski interjected that it -sounded like Barczak was blackmailing Lisowe, whereupon Bardzak indicated, "Yes it does, doesn't it." In addition to the nitrous oxide charge, Barczak ques- tioned the veracity of the two EMTs suggesting that they had lied when on May 16 they had reported me- chanical difficulties with unit 70.49 Barczak also referred to the fact that other EMTs had reported the missing cannualas, emesis, disinfectants, and a stethoscope. In this connection Barczak accused Lisowe and Galewski of fal- sifying their checkoff sheet. He offered Galewski his telephone inquiring whether he wished to talk to an agent of the NLRB. Galewski then inquired as to wheth- er the articles found missing on May 17 would be includ- ed in the discipline or whether the offense would be sep- arate. Barczak indicated that he had not yet decided. At the close of the meeting Barczak informed Galewski and Lisowe that, having declined to pay for the facepiece, they would be suspended for an 8-hour period.50 At that juncture, Barczak allegedly took the telephone and slammed it down on the desk stating that if they did not like this treatment, they could call an agent of Region 30 of the National Labor Relations Board.si After the May 19 meeting according to Barczak's testi, mony Supervisor Huttle reported to him that Galewski was observed singing a tune with lyrics to the effect "We take our job seriously at Fisher Nut factory," con- duct taken by supervision as a gesture of ridicule toward Meda-Care. 49 That day Lisowe and Galewski were running the air conditioner in unit 70 when in the midst of a call the engine failed, and would not turn over even when the air conditioner was shut off Galewskt notified the dispatcher and another unit was sent to transfer the patient to the hospi- tal so Only the imposition of the suspension against Galewski is chal- lenged by the General Counsel as illegal. There is no allegation that the discipline meted out to Lisowe was unlawful Nonetheless, the General Counsel contends that Lisowe and Galewski were engaged in concerted activity protected by Section 7 of the Act when the concertedly ex- pressed their determination not to pay for the missing facepiece. Whether or not legal under Wisconsin law, an issue that has not been conclusively litigated in this proceeding, Respondent's established work rules provide that when items are missing and unaccounted for, the crew that checked those items present at the beginning of their shift will be assessed half the replacement cost See R Exh 5 This is not a situation in which unaffect- ed employees gathered to protest employment policy as an abstraction, or sought change therein through the process of collective bargaining. Here, extant policy was violated Sec 7 of the Act does not serve to insulate employees from discipline for noncompliance with established employ- ment policies, whether the misconduct is waged singularly or in concert. 51 During the course of this conversation Barczak also charged Lisowe and Galewski with an excessive response time on a May 17 call. Howev- er, after Galewski asked that the logs be checked, Barczak acknowledged his error The General Counsel indicates that the accusation by Barczak, considered in the context, indicates that he was searching "frantically" for a reason to get rid of Galewski Anything is within the realm of pos- sibility However, considering the baseless accusations made throughout this proceeding on all sides, and the deteriorating relationship between Barczak and Galewski dating back to January, it is just as possible that this and other examples of overreaching were provoked by the combat- ive stance of Galewski and his resistance to Barczak's authority, rather than any activity protected by the Act At least, Barczak was not so car- ried away as to hold firm with this accusation without investigating the facts. Indeed, Barczak did back off after determining from the logs that the particular time was acceptable. 488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Also on May 19, Galewski was dispatched by Mary Jane Barczak to an address on Pierce Street. Later Rus- sell Barczak, himself, received a telephone call from Ga- lewski seeking verification in that no address correspond- ed with the designated location. Barczak provided the address that his wife had logged in writing which proved to be correct.52 Barczak then called Attorney Peck. The events of May 19 were reviewed, including what had transpired at the meeting concerning the missing equip- ment and materials, and the response by Galewski to the wrong location. The decision was made to put him on indefinite suspension. On Saturday, May 20, in a telephone conversation with Barczak, Galewski was informed that he would be suspended indefintely. Barczak testified credibly that when he informed Galewski of the suspension and at- tempted to communicate the reasons, his efforts were frustrated because Galewski simply laughed at him. According to Barczak, about May 24 he, together with Peck, decided to discharge Galewski on the basis of the "entire file," including the suspension for the red lights and sirens and the suspension for his parking in a man- agement spot. Also involved was the fact that though Galewski in March had provided a letter noting what was expected of him, his conduct in May violated those standards, by manifesting a "total disregard for rules and regulations." On May 25, Galewski received another telephone call from Barczak who indicated "as of this date, you're ter- minated." According to Galewski, the reasons afforded by Barczak were "the missing face piece, checkoff list, past performance and present attitude."53 Barczak again credibly claimed that he had difficulty reciting all the reasons for the discharge because Galewski reacted as if the matter were a "big joke."54 Respondent's case against Lisowe opened in early May, when the latter was late by some 11 minutes on May 1 and some 14 minutes on May 4. Subsequently, on May 14, Barczak inquired of Lisowe as to the reasons for the lateness. Lisowe testified to having explained that there was construction work on the route he normally takes to work, and that this was the reason for the delay on both dates. On May 17, Lisowe was given a warning by Barczak, which stated as follows: 52 Barczak testified that he was in the kitchen when Mrs Barczak dis- patched the crew and that he observed her reading from the call sheet in making the dispatch to the crew Although Barczak opined that Ga- lewski was responsible, he conceded that he could not be certain of this fact, and that it remained possible that his wife may have misread the ad- dress n Barczak, on inquiry by Galewski, indicated that a termination letter would be provided However, Respondent did not oblige in this respect 54 Although I have many doubts about much of the testimony that was given on both sides in this case, it was my impression that Galewski con- ducted himself as if immune from any form of legitimate discipline and licensed for disobedience by the Act At least in connection with the Mt Carmel incident, documentary evidence establishes that Galewski dared management to invoke discipline in connection with what Barczak and Peck believed legitimately to have been a disregard of Galewski's respon- sibility as an EMT. Barczak's testimony that Galewski manifested arro- gance by laughing at management efforts to invoke discipline struck me as entirely probable and in keeping with tendencies manifested in other respects by Galewski Although we value you as a Company employee we cannot tolerate tardiness without good reason. The importance of being on time is imperitive [sic] to servicing our customers not to mention the incln- veince [sic] to your fellow employees for having to stay over to cover for your abtentce [sic] and possi- ble overtime cost. Discipline including suspension will result the next time you are tardy without an exceptable [sic] excuse.55 According to Barczak, when he met with Lisowe on May 14 and inquired as to the reasons for Lisowe's late- ness, Lisowe simply said, "I just did not leave early enough." Barczak denied that Lisowe mentioned a con- struction project or any' other problem he experienced en route to work. Barczak related that had Lisowe asserted any justification, 56 no formal warning would have ensued.57 Following the 8-hour suspension of May 19, "for the failure to pay for the face mask," Lisowe, on May 23, received a dispatch to St. Luke's Hospital. The call was transmitted to Lisowe by Russ Werner, a part-time dis- patcher and EMT. According to Werner, Lisowe was in- formed that it was an emergency transfer and that he would need to take a portable EKG monitor on the run. He was also informed that oxygen would be required, and that a nurse would accompany him on the trip be- cause the patient would be on IVs. Lisowe was also told that he might possibly need a bag mask unit to use in transporting the patient to the unit.58 According to Lisowe during the course of his conversation with Werner, there were two interruptions by another phone, which Werner answered. Other than that there is no conflict as to the salient aspects of what was said during the course of this dispatch. Lisowe and his partner Tim Brege responded to the call. Lisowe, however, forgot the EKG. On the arrival at St. Luke's Hospital, Lisowe telephoned Werner, who sent the EKG machine with another crew. According to Lisowe the EKG machine arrived approximately 10 min- utes later,59 and the balance of the run was handled by a second crew. Lisowe conceded that his partner would not have heard Werner's instruction that he take the EKG machine. Werner first reported the incident to Assistant Manag- er Huttle. The next day he met with Huttle directly. Huttle then reported the incident, to Barczak who re- quested that Werner provide a written statement.60 55 See G C Exh 26 56 I credit Barczak's testimony, which conforms with the Company's statement of position appearing in G C Exh 26 Lisowe signed that state- ment indicating that he concurred with the Company's position in that respect 57 There was no allegation challenging the legitimacy of this warning 58 Werner testified that while he-told Lisowe that he was not absolute- ly certain that the bag mask would be necessary, he did instruct that the EKG machine would definitely be used Werner also explained to Lisowe that the EKG machine could be broken down in to components for ease of transport He estimated the conversation to have taken 5 min- utes at most. He could not recall that Lisowe asked him any questions. 59 Lisowe explained that the matter was without consequence in that the patient was not ready for transport prior to the second crew's arrival. 60 See R Exh 10 MEDA-CARE AMBULANCE After receiving the report, Barczak reviewed the entire matter with Attorney Peck. According to Barc- zak, no decision was made at that time concerning the discipline of Lisowe but it was agreed that if further a justification were developed in his meeting with Lisowe he would discuss the matter further with Peck .61 How- ever, in the meeting with Lisowe, Barczak stated that Lisowe could give no reason., but simply stated, "I forgot." From this Barczak concluded that Lisowe simply did not care .6 2 Lisowe contradicts Barczak's testimony that he gave no reason. According to' Lisowe, when asked why he forgot the EKG machine, he indicated that because of the number of directions given to him by Werner and the length of the telephone call he became confused. Lisowe also claims to have observed that others had for- gotten EKG machines under previous management. To this, Barczak allegedly responded, "Well, just because management has changed, it doesn't mean that the rules have changed." Barczak testified that it was in the course of this May 25 interview that he decided to discharge Lisowe be- cause acceptable justification for forgetting the EKG ma- chine was not forthcoming. The fact that Galewski had also been terminated that day was discounted by Barczak as sheer coincidence. Barczak told Lisowe that he had been given many chances in the past and that he was now terminated because his attitude towards Barczak had changed drastically during the last month . Included in the reasons given were Lisowe's refusal to pay for the facepiece, his "tardies," and his having forgotten the EKG machine. By letter dated June 6, 1982, Barczak wrote Lisowe, de- tailing the reasons for the decision to terminate.63 5. Conclusions concerning the issues of discrimination The General Counsel has represented a strong prima facie case. That Respondent might well have singled out Galewski for unlawful dsicrimination , and taken similar action against Lisowe as a means of giving credibility the elimination of Galewski is readily inferrable . Respond- ent's hostility to the assertion of rights guaranteed by the Act is amply chronicled. Dating back to the summer of 1981 when employees first - found a need for collective action, Darwin Larsen, Respondent's co-owner, informed employees "if union activities continued, he would close the Company down . . . [and] that he might take certain privileges away from them."64 And beyond that Bonnie 61 Just what Barczak expected of Lisowe is a mystery Werner had reported that Lisowe failed to offer any excuse other than having forgo- ten then the EKG, and he testified that Lisowe did not attribute the inci- dent to the number of instructions given or any confusion on his part. 62 Barczak claims to have been instructed by Attorney Peck that he was to use extreme fairness in dealing with employees . However, to equate the absence of justification with a lack of concern is hardly sug- gestive of the open-mindedness of one having any deep commitment toward fair dealing as See G C Exh 26 It is noted that though the letter was dated June 6, the envelope carried a postmark of June 25 64 266 NLRB 1208, 1210 489 Lund, an EMT-dispatcher in June 1981, hosted a meet- ing of employees attended by a union official. In connec- tion with that meeting Yvonne Larsen , a co-owner of the Respondent, questioned James and Bonnie Lund con- cerning the purpose of the meeting and who would attend. Managment's curiosity was extended when, later, on June 28; Jonathan Kostreva, Respondent's personnel manager, engaged in surveillance of employees as they attended a meeting at the offices of 1199W.65 On July 22, 1981, Barton Peck, Respondent's attorney addressed a meeting of employees held at Respondent's station 1 . He spoke concerning the pros and cons of having a union and offered that an employee committee presented an alternative to outside representation. At some point, Peck requested that the employees discuss the matter among themselves, and the management offi- cials left. The employees conducted a vote and elected to form an internal committee . Peck indicated that if em- ployees were to become dissatisfied after 3 or 4 weeks of negotiations, they could form an outside union.66 Bonnie Lund was a key spokesman for that committee. According to findings by the Judge Scocoloff "on August 31, September 1 and September 2 . . . Bonnie Lund distributed copies of a letter from the committee to the employees stating that the committee had not achieved progress in bargaining and, therefore , recom- mended affiliation with the Union." The committee asked for affirmative votes for that action on September 4, 7, 8, and 9.67 On September 4, Bonnie Lund was un- lawfully terminated.68 Notwithstanding the union animus evident from its past dealings with employees and Galewski's activity on behalf of the employee committee and FEMT, the Re- spondent contends that Galewski was terminated for le- gitimate reasons based on a series of incidents commenc- ing in early February 1982. I am convinced that Ga- lewski extended his adversary posture beyond the role of a union representative and into his job performance and that he thereby reflected an attitude in discharging his employment duties, which was resistive of management, its policies, and authority. In short, credible evidence tends to establish that Galewski engaged in a type of misconduct that would have rendered future employ- ment intolerable, and signaled persuasively that he would have been discharged even had he not engaged in con- certed protected activity. See, e.g., Wright Line, 251 NLRB 1083 (1980). Prior to his hire by Respondent, Ga- lewski had been terminated involuntarily by two other ambulance services operating in the Milwaukee metro- politan area. One discharge admittedly was on the stated ground that Galewski was "constantly causing problems; and . . . [his] association with others was difficult, and . . . [he] did not follow orders." Galewski's problems with others continued while in the employ of the Respondent prior to his involvement in union activity . Thus, early in his employment with Meda-Care, Galewski held a supervisory position but 65 Ibid. 66 Ibid 67 Ibid 66 Ibid 490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was removed by ultimatum and resignation because he was unable to get along with personnel due to a demand- ing, stubborn, and in flexible disposition.69 Later, his confrontational stance with General Manager Barczak and Attorney Peck developed into a continuing phe- nomenon. It began shortly after Barczak was elevated to general manager. Galewski was quick to to serve notice that Barczak was to be engaged in a struggle for his au- thority. I am convinced that notwithstanding Barczak's posting of notice restricting EMT access to management parking spaces, on February 4 Galewski balked when Mrs. Barczak denied his request, and deliberately parked in a prohibited spot as a defiant gesture of pique.? Galewski's arrogance toward management was again made evident in connection with the Mt. Carmel inci- dent. It is indisputable that during that entire run, an emergency at that, Galweski elected not to use red lights and siren. It is also clear that a representative of the nursing home was displeased with his response time. In my opinion, having heard all the evidence, I am con- vinced that his failure to use either lights or siren, at least during the nonfreeway stages of the run was incom- prehensible.7 i Although one might speculate as to his motivation from the outset of this incident, it subsequent- ly became clear that Galewski would seize on the after- math of this incident as a forum for elevating his own point of view over management's authority. I believe the testimony of Barczak that during the course of Respond- ent's efforts to deal with the issue, Galewski and his rep- resentative, Drieblatt, repeatedly ridiculed Barczak and Respondent's attorney, Barton Peck. The heavy-handed- ness of Galewski's position was marked by the declara- tion that "a clear policy on running red lights and siren at all times during a code 3 . . . would be inherently un- reasonable." And when questioned by Attorney Peck as to whether he would run a Code 3 emergency in the future with red lights and siren, Galewski admittedly re- 69 The foregoing is based on the credited, uncontradicted testimony of Russell Barczak. 70 Galewski while on the stand professed his innocence of all miscon- duct charges levied by the Respondent He seemed to have an excuse for everything. My belief that he and Gary Hansen afforded false accounts of the parking incident was so strong as to suggest that Galewski himself was highly sensitive to his callous disregard of published employment policy on the occasion in question 71 To the extent that the testimony of Galewski and Kleatsch are in conflict, the description of traffic conditions by the latter is preferred as the more reliable Thus, at the outset of this run, the unit had to ap- proach and enter a protected boulevard, then make a left turn through traffic and pace through two traffic lights before reaching the access to the expressway. It is understandable that Respondent's officials were dis- turbed by Galewski's failure to assert the right of way under the traffic conditions that existed on this leg of the run, and Galewski's response that they were wrong and he was right I would note in this connection, that although Galewski and several of the General Counsel's witnesses attempted to persuade me that red light and siren are inextricably linked with the operation of emergency vehicles at high speed, this quite clearly is not the case, Only with the use of red lights and siren does an emer- gency vehicle have the right of way. The use of visual and audible alerts at even the slowest speeds , including a standing position , in emergency situations is suitable to secure right of way through traffic and to insulate the emergency vehicle from liability should the right of way be withheld by motorists. Argumentative testimony was also adduced by the General Counsel that red lights and siren ought not be used to clear traffic be- cause certain drivers might panic This proves too much For it relates to a possibility that will always exist, and if honored, would foreclose use of red lights and siren altogether sponded "not necessarily." Indeed, Galewski's misguided view that driver discretion takes precedence over any management policy72 caused him to inform Peck direct- ly that there were situations where he would not go red lights and siren "even though . . . specifically told to do so . . . by a company official." This commitment to con- tumacy was backed by Galewski's warning to manage- ment that any discipline invoked in connection with the Mt. Carmel run would result in the filing of unfair labor practice charges with the National Labor Relations Board. Respondent's reaction was perfectly understandable. Conduct that it viewed rightfully as irresponsible was met with a defiant counterchange that management could not impose its will on this employee. In short, Ga- lewski created a situation whereby management author- ity, if to survive with any degree of credibility, impelled discipline in consequence of this incident. Accordingly, the suspension meted out in this case was perfectly legiti- mate. The final incident leading to the discharge involved another clear attempt on the part of, Galewski to frus- trate Barczak's attempt to enforce an employment policy Galewski's rejection and declared refusal to abide by Re- spondent's written policy concerning equipment and ma- terials was expressed repeatedly prior to his suspension and discharge. In sum, I am convinced based on the credited evi- dence and the most probable inferences that Barczak was provoked by Galewski into a struggle for authority during this entire period between February 4 and the in- definite suspension of May 20. There is no question that Barczak from time to time during this period criticized Galewski for improper performance under exaggerated or highly speculative circumstances in which no miscon- duct could be substantiated. 73 And the issue of motiva- tion can never be free from doubt when a key protago- nist is repeatedly disciplined and then terminated under timing that is suspicious. This is particularly so when much action occurs against a background evidencing that unlawful discrimination is not without precedent in the employer's dealings with statutory rights of its employ- ees. Here, however, the traditional indicia of proscribed motivation are overcome by a discriminatee who could 72 There is not a scintilla of evidence in this record suggesting that management in the emergency transport industry is required by any rec- ognizable authority to allow EMTs such discretion From all appear- ances, subject to limitations not relevant here, the matter is committed to traditional prerogatives of management. 73 In this category are accusations concerning Galewski's having made runs to the wrong location In their mutual eforts to portray the oppo- nent in the most undesirable light, cross-accusations made by the parties include references to these incidents Thus, the General Counsel insmu- ates that erroneous locations were deliberately provided Galewski by dis- patches in order to set him up On the other hand, Respondent's wit- nesses would have me believe that responsibility for these misadventures lie in Galewski's shortcomings In this regard , although hostilities in this case appear to have been at feverish pitch dating back to February, I doubt ill will would have provoked a dispatcher to deliberately give an erroneous address on an emergency call nor do I believe that an ambu- lance driver would have deliberately driven his unit to the wrong loca- tion The cross-accusations involved here are of no greater relevance in assessing the ultimate issue than other examples of overreaching by both the General Counsel and the Respondent MEDA-CARE AMBULANCE not draw the line between the protected status he held as a union representative and an adversary of employee in- terests, and his time-honored responsibility to his Em- ployer while performing on the job. Galewski's rejection of managerial authority and his challenge to established employment policy developed within the spectrum of re- sponsibility imposed on him as an employee. It was a course of conduct alien to his role as an employee repre- sentative or any form of activity protected by the Act. Despite the abounding union animus, timing, and the fact that in other respects the dischargee had shown himself to be a capable employee, credible evidence persuades that Respondent suspended Galewski on February 5, March 3, and May 20, and then discharged him on May 25, 1982, on the basis of his overall behavior pattern, which would have inspired like disciplinary action had Galewski not engaged in a single act protected by Sec- tion 7. The 8(a)(1), (3), and (4) allegations in this respect shall be dismissed.74 Having concluded that Galewski was terminated for legitimate cause, the case against Respondent concerning the treatment of Lisowe stands essentially upon an inde- pendent challenge to the propriety of Respondent's rea- sons for terminating the latter. For unlike Galewski, there is little basis for suspicion that Lisowe would have been singled out for proscribed discrimination. Thus, it does not appear that he had engaged in any activity pro- tected by the Act prior to the Union's sweeping victory by a vote of 17 for, and 4 against in the Board election- of March 5 and 9, Lisowe's own testimony reveals that after April 1 he discussed the Union with Galewski and acted as a conduct between Galiewski and nonmembers to encourage them to attend union meetings at Galews- ki's home, where they might voice their opinions con- cerning the Union and determine the benefits they could derive therefrom., Apart from his alleged execution of an authorization card, there is no other evidence of union activity on his part. Although Lisowe had been subject- ed to unlawful interrogation following the March elec- tion,75 on the basis of the' record as a whole any infer- ence that Respondent would have singled out Lisowe for discriminatory discharge is unwarranted. Contrary to the General Counsel's challenge, on balance, I credit Barc- zak's testimony that Lisowe was terminated for legiti- mate reasons, consisting of his unexplained latenesses on May 2 and 4, the attitude manifested in his resistance to management's policy concerning the employee account- ability for lost materials and equipment, as well as his negligence in connection with the EKG machine on the, emergency dispatch to St. Luke's Hospital.76 According- 74 There is no evidence to support the allegation in the complaint that prior to the February 5 and March 3 suspensions, Galewski "gave testi- mony to the Board in Cases 30-CA-6609, 30-CA-6746, and 30-CA- 7030 " 75 Though Lisowe was not a highly convincing witness, I have accept- ed his uncontradicted testimony concerning his involvement in union acitvny. 76 The General Counsel's challenge to the grounds assigned for termi- nation of Lisowe included testimony that another EMT went undisci- plined for forgetting an EKG machine Thus EMT Thomas Durley testi- fied, in response to prejudicially leading questions, that, although he could not recall the timeframe, he too had been instructed to carry an EKG machine on a run, but forgot. The probative value of this testimony 491 ly, I shall dismiss the allegations that Lisowe was termi- nated in violation of Section 8(a)(1), (3 ), and (4) of the Act. E. The Alleged Refusal to Bargain 1. The refusal to provide information It is alleged that Respondent violated Section 8(a)(5) and (1) of the Act by its -refusal pursuant to FEMT's re- quest since June 15, 1982, to provide the latter a copy of its malpractice insurance policy. Respondent acknowledges that on June 15, 1982, the Union first requested a copy of the aforementioned insur- ance policy. Oral requests were again made on July 21, August 5, and finally a written request was made on De- cember 7, 1982.77 The requested information was not de- livered to the Union until February 9, 1983. Respondent does not contest the assertion on behalf of the General Counsel that such information was necessary and rele- vant to the Union's performance of its function as collec- tive-bargaining representative. In agreement with the General Counsel, it is concluded that the 8-month delay in providing information highly relevant to the bargain- ing process was unreasonable. See, e.g., Unoco Apparel, 208 NLRB 601, 610 (1974)., Respondent's effort to excuse this response on the basis of alleged union misconduct in connection with the October picketing and handbilling was unpersuasive., First, it is noted that Respondent's ter- mination of negotiations based on such conduct did not occur until October 20, 1982, some 4 months after the Union's request. Thus, even were I to find that the Union's effort to publicize its dispute transcended the bounds of protected activity, the delay of 4 months was unreasonable and inconsistent with the demands imposed by good-faith collective bargaining. Accordingly it is found that Respondent violated Section 8(a)(5) and (1) of the Act by refusing on request to furnish relevant infor- mation regarding a condition of work on a timely basis. 2. The unilateral change in health insurance There is no dispute that following the certification, about December 25, 1982, Respondent- switched insur- ance carriers and did so without prior notice to or af- fording the Union an opportunity to bargain. There can be no dispute that the health insurance program covering the EMTs was a mandatory subject of collective bar- gaining. See, e.g., W W. Cross & Co. v. NLRB, 174 F.2d 875 (1st Cir. 1949). 'Supporting this allegation further is the fact that major medical features of the old and new was weakened not only by the "leading" nature of the critical examina- tion but by the further fact that Durley could not remember whether he or fellow EMT Steve Johnson took the call Johnson did not testify and hence a critical segment of Durley's testimony appears to have been founded on hearsay. Moreover, his testimony does not reveal that this was an emergency call. In any event, in this instance the crew was to meet an airplane, which turned out to be 30 or 40 minutes late For this reason, dispatcher Huttle gave permission for the crew to return and pick up the EKG. They did so and returned to the airport before the plane arrived. Barczak credibly testified that he was unware of the incident and I am not conviced that in this respect Lisowe was victimized by disparate treatment 77 See G.C. Exh 36. 492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD policies reflect substantial differences in deductible amounts,78 coinsurance features, procedures for cover- age of dependents, and benefits available for treatment of mental, psycho-neurotic, or personality disorders, includ- ing outpatient expenses for drug addiction and alcohol- ism. Obviously, such a shift in features would impact dif- ferently depending on individual needs of employees, and Respondent's failure to provide their designated repre- sentative the opportunity to discuss and make proposals with respect to this important issue violated Section 8(a)(5) and (1) of the Act. See, e.g., NLRB v. Keystone Consolidated Industries, 653 F.2d 304 (7th Cir. 1981). 3. Respondent's withdrawal of its final offer and curtailment of negotiations based on alleged disloyalty The complaint issued on February 11, 1983, alleged that Respondent violated Section 8(a)(5) and (1) of the Act by conditioning a final offer on October,7, 1982, on the Union's cessation of protected concerted activity, and by, on October 20, 1982, withdrawing its final offer and thereafter refusing to meet with the Union because of the aforesaid protected concerted activity. Respondent's position in this regard derives from the handbilling79 and picketing that began on October 6. At a negotiating meeting on October 7, Respondent's coun- sel 'expressed outrage at the message conveyed to the public by this action, describing it as "infantile," "counter productive," and "untruthful." He indicated that he would attempt to put an end to such activity by making the Union a final contract offer, if the Union agreed that all would act to promote the Company's in- terests. There was some indication by `the Union that it had every intention to "work together" with the Compa- ny. Thereafter, on October 14, a news item appeared in the AFL-CIO Labor Press,80 propagandizing against the Company's posture in the negotiations. On October 19, the employees resumed picketing and handbilling.111 On October 20, a further bargaining session was held. In the course of that meeting Peck informed the Union to the effect that no final proposal would be forthcoming, inas- much as it had been proposed on October 7 as a means of curtailing the Union's publicity efforts, a purpose that the Union had frustrated. Also during the, course of that session, when Peck was asked his position on wages, he responded that he would not provide a wage proposal until the Union agreed in advance to Respondent's pro- posed loyalty clause, and that if the Union did not agree, the Company would pay no more than the "minimum 78 The deductible figure under the canceled policy was $100, Al- though there was testimony by Barczak to the contrary, as I read the new policy, the major medical deductible under the new policy appears to have been $500 Barczak testified that, pursuant to an arrangement with the insurance company, Respondent planned to reimburse employ- ees for the differences in the coinsurance features of the two plans The nature of this arrangement was undisclosed and hence no basis is fur- nished by Respondent for concluding that employees under the new plan would be the beneficiaries of enforceable guarantees with respect to the differences in coverage. 79 See G C Exh 35(a) 80 See G C Exh 35(c) 81 See G C Exh 35(b) wage " The so-called loyalty clause was first proposed by Respondent in a letter dated July 16, 1982,82 from Peck to Dreiblatt. It provided as follows: Employees will individually and collectively per- form their work and fulfill their duties in a loyal, prompt and efficient manner, and they will use their influence and best efforts at all times to protect the property of the Company and to protect and pro- mote the Company's best interest . Employees will co-operate with the Company and with our other employees of the Company. Consistent with the testimony of Barczak , Respondent concedes that as of October 20, it terminated negotia- tions indefinitely because of the aforedescribed handbill- ing and picketing.83 By way of defense, Respondent contends that the handbills distributed on October 6, and the article ap- pearing in the AFL-CIO Labor Press on October 14, 1982, were manifestations of disloyalty unprotected by the Act. First, the publicity is challenged as having false- ly accused the Company of progressively reducing its wage proposals despite the Company's expansion and prosperity . In this respect, the handbill, as reprinted in the AFL-CIO Labor Press, stated as follows: . . . we are paid only $4.16 to $5.23 an hour. (Meda-Care Ambulance service gets $75 per call). We have not received any wage increase for three years, despite the Company's expanding and getting new business. That's why we organized, in March 1982, as Local 5060, The Federation of Emergency Medical Technicians, AFT, AFL-CIO, and are now negotiating for first contract. The employer's response? He's gone from an ini- tial "status quo" position to one of a 3-1/2 percent -wage decrease. Now he's talking about a 5 percent wage decrease. Contrary to the Respondent, there is no evidence to sub- stantiate that the aforesaid references were less than ob- jective or untrue. Indeed, there is every reason to believe that the charges levied constituted fair comment con- cerning the Company's wage position. Beyond the foregoing, Respondent cites the following quotation of Galewski, which was set forth in the Mil- waukee 'Labor Press as a further example of malicious union literature: . . . the Company has been less than responsive to the basic needs of its employees and to working conditions of EMTs, which have direct impact of the service given to the public . . . . . . . the employer refused to grant a demand for basic sanitary facilities such as showers . . . . 82 See G C. Exh 33 83 Respondent did agree to a- resumption of negotiations ultimately, and the parties again met on January 20, 1983 , MEDA-CARE AMBULANCE 493 Respondent makes similar - claim with respect to the fol- lowing excerpt from the handbill: He's refused showers, pooh-poohed sanitary wash- up facilities for EMT's who, after all, deal with vomit and other nasty bodily emissions. . . . It is possible to profitably serve the public, rather than to profit at the expense of employees and the public. Here again, the Union's publicity did not entail departure from the truth. Respondent had no shower facilities for employees, and at station 1, men and women shared the same restroom facility. Pending at the time of these pub- licity efforts was a union proposal urging Respondent to "provide proper facilities for employees' personal hy- giene-including showers." 84 There is no evidence that Respondent at any time agreed to that, or a similar pro- posal. Finally, Respondent objects to the reference in the handbill on the newspaper article that the employer "doesn't want to use seniority for layoff and recall," but just wants to "choose" who is retained and let go . In this respect, Respondent argues that this characterization is false in that the Company had .accepted seniority as a consideration in both layoff and recall situations through a written proposal. However, the only written proposal appearing in the record is that provided to the Union on July 16, 1982.85 From examination of that,proposal, it is apparent that seniority was not accepted as the universal criterion for layoff or recall. 86 Contrary to the Respondent, the references in the union literature involved propaganda patently linked with negotiations and its progress. Assertions contained therein were not untrue to the point of exceeding fair comment. Any impact on the quality of service provided by the Employer was plainly incidental and subordinate to the effort to publicize a basic labor dispute. The com- mentaries were 'neither disloyal, malicious, nor in pursuit of any objective other than to force concessions at the negotiating table. The content of the handbills and the news article were readily identifiable as an appeal for public support in an ongoing labor dispute, rather than a separable, gratutous attack in disparagement of the Em- ployer's service or product. Cf. NLRB v. Electrical Workers IBE W Local 1229 (Jefferson Standard Broadcast- ing), 346 U.S. 464, 476 (1953). Such being the case, the protection accorded by Section 7 of the Act is not re- moved on the basis of the employer's sensitivity or sub- jective reaction to the employees airing of "what may be highly sensitive issues." See Allied Aviation Service Co., 248 NLRB 229, 231 ( 1980). Nor does it appear that the statute imposes broader constraits on public criticism by 84 See G.C Exh 31,p15 85 See G C Exh 33, p 4 86 Pursuant thereto, Respondent in the event of layoff, was free to select at its discretion from among temporary , probationary and part-time employees Full-time employees would only be protected by seniority to the extent that in the Company's opinion "the remaining employees have their skills and can perform properly the work of the employee to be re- leased." With respect to recall, although seniority was a criterion, it was conditioned on " the opinion of Management [that] the employee has the skills and can properly perform the available work to which assigned by the Company " employees in the health care industry than in other in- dustries. See, e.g., Community Hospital of Roanoke Valley, 220 NLRB 217, 223 (1975). In sum, it is concluded that the employee conduct in question was protected by Sec- tion 7 of the Act and, hence, Respondent violated Sec- tion 8(a)(5) and (1) of the Act by withdrawing a contem- plated final offer and then curtailing negotiations because employees persisted in such conduct. 4. Insistence on loyalty clause during 1983 negotiations In addition to the foregoing , the complaint which issued on April 28, 1983, alleged that Respondent further violated Section 8(a)(5) and (1) of the Act by between January 20, 1983 and March 9, 1983, conditioning "any and all" bargaining on the Union's agreement to Re- spondent's proposed loyalty clause. This allegation tele- scopes and is remedially cumulative to claims of illegal- ity emanating from Respondent 's demands in October 1982. Nonetheless, it appears that when negotiations re- sumed on January 20, 1983, Dreiblatt asked Peck for his position on wages. According to Dreiblatt's uncontra- dicted testimony, Peck indicated that a wage proposal would not be forthcoming until the Union agreed to the loyalty clause, and that should the latter fail to agree, the Company's wage proposal would be limited to the Fed- erally guaranteed minimum. Furthermore, during a sub- sequent negotiating session on March 9, 1983, Peck re- ferred to the fact that the Supreme Court had condoned an employer's right to fire disloyal employees and that arbitrators generally had recognized disloyalty as "just cause" for discharge. He indicated that he wanted a clause in' the contract that would permit the Company to bring a cause of action against nonemployee union repre- sentatives, and therefore proposed the following: Employees will individually and collectively per- form their work and fulfill their duties in a safe, prompt and efficient manner and they and their rep- resentatives will use their influence and best efforts at all times to protect the property and reputation of the Company and consistent with Federal and State laws to protect and promote the Company's best interest. [Emphasis added.] 87 Peck indicated that if the Union would agree to the above, the current wage rate would be maintained, but that he also wanted language to the effect that if the loy- alty clause were violated, all wage rates would be re- duced to the Federally guaranteed minimum. Contrary to the allegation in question, there is no evi- dence to substantiate that Respondent in 1983 impeded bargaining unlawfully by conditioning further negotia- tions on union acceptance of its loyalty clause. The ex- pression of any such condition was unsubstantiated factu- ally, All that appears is that Respondent indicated that it would not come forth with wage proposals until the Union agreed to the loyalty clause. In this posture of the case, even assuming that the loyalty proposal was a non- 87 See G C Exh. 38. 494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mandatory subject of bargaining, the attempt at segment- ed horse trading that occurred neither took place in the context of impasse nor contributed to any impasse. Thus, the testimony simply does not confirm that Respondent indulged in the degree of "insistence" contemplated by NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958). That case does not authorize the Board, under the guise of Section 8(d) of the Act, to censor the give-and-take dia- logue of negotiations and to make unfair labor practice findings on every abstract ambiguity that may evolve in that process. The mere fact that an employer desires a provision and expresses a will to hold-up concessions in limited areas, such as wages, until his proposal is accept- ed, is not the equivalent of evidence that no agreement would be, entered without such provision. Borg- Warner, supra, merely condemns a party's insistence to impasse on a nonmandatory subject of bargaining. What had transpired here falls short of any such showing and, ac- cordingly, it is concluded that Respondent did not vio- late Section 8(a)(5) and (1) of the Act between January 20 and March 9, 1983, in this respect. 5. The refusal to bargain based on Galeski's participation in negotiations Despite his discharge on May 25, 1982, Galewski con- tinued as president of FEMT Local 5060, and as a member of the Union's negotiating team. At the same time, Galewski later obtained employment with a com- petitor of the Respondent, Cross Ambulance Service. With Cross, Galewski served as an EMT as well as in public relations capacity. Part of his duties included gen- erating new accounts. In April 1983, Barczak learned that Galewski had solicited Sacred Heart, a customer of the Respondent, for the purpose of obtaining business for Cross Ambulance. On April 20, 1983, Peck wrote Dreiblatt asserting that Galewski being employed by a competitor, had sought to obtain business from one of Respondent's accounts. That letter stated in material part as follows: ... be advised that until Mr. Galewski has been re- moved as Union ' officer and bargaining committee member, we will exercise our right to refuse to ne- gotiate with your Union further,88 Dreiblatt, by letter dated April 26, 1983, responded to the charges by Attorney Peck as follows: Galewski: We are unaware of any campaign of "active solicit[ation]" of Meda-Care accounts alleged in your letter, let alone how Mr. Galewski "would personally benefit." Parenthetically, it is noted that Galewski admitted both to having solicited Sacred Heart on behalf of Cross and as having serviced that facility when an EMT in Re- spondent's employ. By letter dated April 29, 1983, Peck reinforced his po- sition to Dreiblatt as follows: If Mr. Galewski's representing the Company's em- ployees, while at the same time soliciting the Com- pany's accounts and prospective customers is, as the Regional Office claims, not a violation of the Act . . . . then the only resource for the Company is to refuse to bargain with the Union until assurance is provided that Mr. Galewski is not in a position to be privy to information which would benefit him and his present Company as competitors. Obviously, there is no obligation morally or legally for the Company to provide Cross Ambulance with information regarding its labor cost, numbers of runs, etc. when the Company has no access to simi- lar information from Cross Ambulance or other competitors. Although we recognize that we have an obligation to negotiate with your organization and wish to do so, we, consistent with a multitude of laws prohibit- ing unfair competition as well as conspiracies to re- strain trade, need not to do so at the expense of our providing another with competitior advantages which are not availble to us. Unless and until we have received assurances from you that you are willing to negotiate properly .. . further negotiations are cancelled.89 ''Section 7 of the National Labor Relations Act guaran- tees employees the right "to bargain collectively through representatives of their own choosing." Under the statu- tory scheme, "[i]n general, either side can choose as it sees fit and can control the other's selection there have been exceptions to the general rule that either side can choose its bargaining representatives freely, but they have been rare and confined to situations so infected with ill-will, usually personal, or conflict of interest as to make good-faith bargaining impractical."90 "There Js a considerable burden on a nonconsenting employer, in such a situation as this, to come forward with a showing that danger of a conflict of interest interfering with the collective bargaining process is clear and present."9 i I am convinced that this burden has been met in this case. We are here concerned with a business enterprise whose services are made available within a narrow geo- graphical area. In Milwaukee County similar services are provided by only six competing firms. It does not appear that FEMT Local 5060 or Galewski served in a repre- sentative capacity with respect to employees other than those of Respondent. Galewski had previously been discharged because of his hostile resistence toward employment policies and management's efforts to maintain discipline through the enforcement of those policies. Nonetheless, Respondent continued to bargain with FEMT despite Galewski's em- ployment with a competitor in this localized market. Re- spondent drew the line only after it discovered that its own customers were being solicited on behalf of the new employer. Although representatives of the Respondent 89 See G C. Exh 40(1). 9° General Electric Ca v NLRB, 412 F 2d 512, 516-517 (2d Cir. 1969). 88 See G.C. Exh. 40(d) 91 NLRB v. David Buttrrck Co, 399 F 2d 505, 507 (Ist Cir. 1968). MEDA-CARE AMBULANCE have "cried wolf" unjustifiably in many stages of this overall conflict, in this instance their sensitivity was rightfully placed. Galewski's employment by a competi- tor in a public relations capacity, which included respon- sibility for developing broadened sales, and his having pursued his responsibility in this latter regard by solicit- ing an account he had serviced in the past while em- ployed by the Respondent gave rise to a disqualifying disability. Objectively viewed, it is difficult to imagine how Respondent, in the light of this discovery and past recriminations, could have confidence or ever be certain whether Galewski's participation was oriented to the in- terest of Respondent's employees, or ulterior to his sepa- rate and personally held duty to further the economic posture and public image of a competitor. The appear- ence is strong, if not overwhelming, that Galewski occu- pied a position of divided loyalty that could only serve to hinder the negotiating process and, there being no overriding compelling justification for his presence at the bargaing table, it is concluded that Respondent had a le- gitimate right to demand his exclusion from the Union's negotiating team and to insist that further negotiations be conducted only after Galewski had been removed from any positions that would afford him an opportunity to formulate bargaining policy or strategy or access to any information that might be useful to a competitor of the Respondent. Accordingly, it is concluded that Respond- ent did not violate Section 8(a)(5) and (1) of the Act by terminating negotiations "unless and until Robert Ga- lewski ceased to act as the Union's designated agent for such purpose." CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. FEMT and 1199W are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent independently violated Section 8(a)(1) of the Act by coercively interrogating an employee con- cerning his union activity. 4. Respondent did not violate Section 8(a)(1), (3), and (4) of the Act by suspending Robert Galewski on Febru- ary 5, March 3, and May 20, 1982, or by discharging Robert Galewski and Ralph Lisowe on May 25, 1982. 5. Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide FENI[T requested information relevant to the performance of its role as exclusive col- lective-bargaining representative; by unilaterally chang- ing its health insurance carrier, without first notifying the Union and extending it an opportunity to bargain; and'by unilaterally curtailing negotiations until such time as employees agreed to terminate their participation in activity protected by Section 7 of the Act or until their representative agreed to a proposed "loyalty clause." 6. Respondent did not engage in any unfair labor prac- tices not expressly found herein. 7. The unfair labor practices described in paragraphs 3 and 5, above, are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY 495 Having concluded that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirm- ative action. It having been concluded that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally discon- tinuing an existing health and welfare program and by instituting a new health benefits program, it will be rec- ommended that Respondent make all employees whole for any financial loss they mave have suffered by reason of said unilateral change during the timeframe commenc- ing on December 24, 1982, and continuing until such time as Respondent negotiates with the Union in good faith to an agreement or impasse with respect to such coverage. See East Belden Corp., 239 NLRB 776, 797 (1978). Said reimbursement shall include interest as pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977).92 On the basis of the foregoing findings of fact, conclu- sions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I issue the following recom- mended93 ORDER The Respondent, Meda-Care Ambulance, Inc., Mil- waukee, Wisconsin, its officers agents, successors, and as- signs, shall 1. Cease and desist from (a) Coercively interrogating employees concerning their union activity. (b) Refusing to bargain collectively with FEMT as the exclusive collective bargaining agent of employees in the following appropriate unit: All emergency medical technicians employed by the Employer at its facilities located at 9721 West Greenfield Avenue, West Allis,, Wisconsin, and 2515 W. Vliet Street, Milwaukee, Wisconsin; but exclud- ing all guards and supervisors as defined in the Act. (c) Refusing to bargain in good faith with the exclu- sive collective-bargaining representative of said employ- ees by effecting unilateral changes in terms and condi- tions of work without first notifying and bargaining with the employee representatives; by refusing on request of the employee representative to provide, on timely basis, information relevant and necessary to the performance of its duties as collective-bargaining agent for the aforesaid employees; and by curtailing collective-bargaining nego- tiations because said employees engaged in concerted ac- tivity protected by Section 7 of the Act or because their representative refused to agree to a proposed loyalty clause. 92 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 93 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 .48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole employees in the appropriate unit for any loss of pay or other benefits they may have suffered in consequence of the termination of an existing health benefits plan and substitution of a new plan, and continue such payments until the Respondent negoitates in good faith with the Union to agreement or to geniune impasse, with interest, in accordance with the terms set forth in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the value of benefits due under the terms of this Order. (c) Post at its stations in West Allis and Milwaukee, Wisconsin, copies of the attached notice marked "Ap- pendix A."94 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or coverd by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaints are dis- missed insofar as they allege that Respondent violated the Act other than as specifically found herein. 94 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "