Future Ambulette, Inc

884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Future Ambulette, Inc and Local 1034, Internation- al Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO Cases 2-CA-22232, 2-CA-22232-2, and 2- CA-22312-2 April 28, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 27, 1988, Administrative Law Judge James F Morton issued the attached deci sion The General Counsel filed exceptions and a supporting brief and a brief in answer to the Re- spondent's exceptions, the Respondent filed excep- tions and a supporting brief, and the Charging Party filed cross-exceptions and a supporting brief 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, i and conclusions, to modify the remedy, and to adopt the recommended Order as modified AMENDED REMEDY We do not agree with the judge's recommended remedy regarding discriminatees Anthony Williams and Jeffrey Howell The judge found that it would be inappropriate to order the Respondent to rein- state them to their former jobs as drivers because neither has a valid driver's license The judge rec- ommended that their reinstatement offers be kept "open" and that they be paid backpay "so long as [the Respondent] has one or more drivers on its payroll with suspended or otherwise invalid li- censes " The record shows that Williams' license was re- instated on June 1, 1987 He is thus entitled to an unconditional offer of full reinstatement and back- pay Jeffrey Howell's driver's license had not been re- instated as of the date of the unfair labor practice hearing We note that the record supports the Gen eral Counsel's argument that Howell's lack of a valid license resulted from his lack of financial re- sources to pay outstanding traffic fines, rather than from any incapacity that would preclude his ob- 1 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings taining a license Howell shall be paid backpay from the date of his discharge but he is entitled to an offer of full reinstatement to his former position only when he shows the Respondent that he has a valid driver's license If Howell is unable to obtain a valid license within a reasonable period of time from the date of this Decision and Order, the Re- spondent shall offer to reinstate him to a substan- tially equivalent position If no such position exists, the Respondent shall make Howell whole until such time that he obtains substantially equivalent employment elsewhere See Overseas Motors, 260 NLRB 810, 814-815 (1982), enfd 721 F 2d 570 (6th Cir 1983), Overseas Motors, 277 NLRB 552, 556- 557 (1985) Backpay for all discriminatees shall be computed in accordance with F W Woolworth Co, 90 NLRB 289 (1950), with interest computed as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987) ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, Future Ambulette, Inc, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi feed I Substitute the following for paragraph 2(a) `(a) Offer Anthony Williams, Tomas Gaton, Raymond Rodriguez, and Jose Cintron immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay and other benefits result ing from their discharges, including moneys due Anthony Williams and Raymond Rodriguez for losses incurred by them for reduction in working hours and vacation pay, respectively Backpay shall be computed in the manner set forth in the amend- ed remedy section of this Decision and Order " 2 Insert the following as paragraph 2(b) and re letter the subsequent paragraph "(b) Offer Jeffrey Howell full reinstatement to his former job on the presentation to the Respond- ent of a valid driver's license If Howell is unable to obtain a valid license within a reasonable period of time from the date of this Decision and Order, the Respondent shall offer to reinstate him to a substantially equivalent position Reinstatement shall be without prejudice to his seniority and other rights and privileges The Respondent shall make Howell whole for any loss of pay and other benefits resulting from his discharge, with backpay 293 NLRB No 108 FUTURE AMBULETTE to be computed in the manner set forth in the amended remedy section of this Decision and Order " 3 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 coercively question our employ- ees as to their support for Local 1034, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO WE WILL NOT tell our employees that there will be no Union at our facility WE WILL NOT threaten to reduce wages, to make conditions worse for employees, or to take unspeci- fied reprisals against employees to undermine their support for the Union WE WILL NOT warn employees that they can be discharged for supporting the Union WE WILL NOT impliedly promise employees ben- efits by soliciting grievances from them for the purpose of discouraging support for the Union WE WILL NOT make disparaging and misleading remarks to employees about union officials in order to induce them to abandon their support of the Union WE WILL NOT threaten that we will close down our facility to induce employees to withdraw their support of the Union WE WILL NOT discharge employees in order to discourage membership in the Union WE WILL NOT reduce the working hours or va cation pay of any of our employees in order to dis courage membership in the Union WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act 885 WE WILL offer Anthony Williams, Tomas Gaton, Raymond Rodriguez, and Jose Cintron im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges, and WE WILL make them whole for any loss of pay and other benefits resulting from their discharges, with interest thereon, including moneys due Antho- ny Williams and Raymond Rodriguez for losses in- curred by them for reduction in working hours and vacation pay, respectively WE WILL offer Jeffrey Howell full reinstatement to his former job upon the presentation to us of a valid driver's license If Howell is unable to obtain a valid license within a reasonable period of time from the date of the Board's decision, WE WILL offer to reinstate him to a substantially equivalent position, without prejudice to his seniority and other rights and privileges WE WILL make Howell whole for any loss of pay and other benefits result ing from his discharge, with interest thereon WE WILL remove from our files all references to the discriminatory discharge of these five employ- ees and to the discriminatory reduction in working hours and vacation pay of Anthony Williams and Raymond Rodriguez and WE WILL notify each of these five employees in writing that this has been done and that evidence of unlawful conduct will not be a basis for future personnel action against them FUTURE AMBULETTE, INC Richard De Steno and Ruth Weinreb Esqs, for the Gen eral Counsel Stuart Kirshenbaum Esq (Pollack & Kirshenbaum PC), of Valley Stream, New York, for the Respondent Lewis Goldberg Esq, of New York City, New York for the Charging Party DECISION STATEMENT OF THE CASE JAMES F MORTON, Administrative Law Judge The pleadings in these consolidated cases, as amended by stipulations received at the hearing, raised issues whether Future Ambulette, Inc (Respondent) unlawfully sought to discourage its employees from becoming members of or from supporting Local 1034, International Brother hood of Teamsters Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) by coer cively questioning employees regarding their support for the Union, by threatening them with discharge to dis courage membership in the Union, and by other acts, in cluding discharging six employees because they support ed the Union By those alleged unlawful acts the Gener a] Counsel contends that Respondent has committed 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unfair labor practices proscribed by Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) The hearing was held in New York City in February and March 1988 On the entire record, including my ob servation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION STATUS Based on stipulations received at the hearing, I find that Respondent s annual operations meet the Board s ju nsdictional retail standard and that the Union is a labor organization as defined in Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background Respondent transports infirm patients between their homes and hospitals or health care facilities located in New York City In the spring of 1987 it employed 20 to 25 drivers who were then unrepresented for purposes of collective bargaining In early April 1987, the Union began an organizing drive among these drivers (All dates hereafter are for 1987 unless stated differently) On April 28, the Union filed a petition in Case 2-RC-20306 for an election Pur suant to an agreement between Respondent and the Union, which was approved by the Regional Director for Region 2 an election was held on June 5 The Union received a majority of the valid votes cast and on August 20, was certified as the exclusive collective bar gaining representative of those drivers The unfair labor practices at issue before me are al leged to have occurred between about April 11 and June 12 B Alleged Unlawful Statements or Inquiries 1 The evidence The testimony offered by the General Counsel as to al leged unlawful statements and questioning by Respond ent is essentially uncontroverted Respondent did not, in its posthearing brief contest the accounts of the General Counsels witnesses regarding such statements Those ac counts reveal that the following events occurred On April 9, driver Anthony Williams met with a union representative, signed a union authorization card and passed out cards to about six of his coworkers On April 11 Charles Dippolito Respondents general manager who is also its secretary treasurer broadcast a message via a two way radio which is used to dispatch vans In that message he said that if Williams did not turn in cash receipts he had collected the Union would not be able to help him When Williams reported back to the office later that day Dippolito told him that he, Dippolito, had heard that Williams was passing out cards for the Union He asked Williams what was going on He also told Wil hams that there had been an earlier attempt by a union to get in and that he, Dippolito, threw them out Dippo lito further stated that there would be no union and that if the Union did get in he would reduce the employees wage rate from $6 to $4 per hour He also said that the employees would have to pay the Union $800 In mid April, Dippolito told Williams that he was not to miss a beat and that he would get something on him to get rid of him Later in April, Dippolito told another driver, Jeffrey Howell, that he was going to get Wil Hams In that conversation, Dippolito also had asked Howell if he supported the Union Dippolito used the two way radio on several occasions to tell the drivers that those who vote for the Union would be sucking wind and that the Union would only make things worse for them On about May 1, Dippolito again asked Howell how he and each of the other drivers felt about the Union Dippolito named the drivers and, as Howell responded as to each one, Dippolito made a note on a card that he had taken from his back pocket Dippolito, with Howell still present, took a trip sheet listing clients recently driven by Anthony Williams and using the telephone, made inquiries to clients asking them whether Williams had driven recklessly whether he used seatbelts, and whether he was courteous After completing the calls, Dippolito slammed the phone down and said, 111 get that fucking Williams Dippolito told Howell that, if he can get complaints on Williams he can get rid of him The incident ended when Dippolito asked Howell to pass the word around that the Union was trying to buy them off On May 3, Dippolito telephoned Howell at his home and asked whose side he was on and if he had Howell s vote Then Dippolito stated that Howell did not need a union He asked Howell if he thought that Respondent would fire a guy like him who gets along with every body On May 7, Dippolito telephoned Ralph Cordero one of the dispatchers and told him that he had gotten rid of two guys (referring to Williams and Howell who had been discharged on May 6) and that he did not need two guys like that who try to separate our company Dippolito then wanted Cordero to assure him that he still had his vote Cordero assured him that he was still on Dippolito s side In mid April, Dippolito asked Jose Cintron a driver then on disability leave of absence from work if he had heard that the fellas are starting a union ' In mid May Dippolito, while driving another driver Fred Cordero home, asked him if he was for the Union and when Cordero responded that he was not, Dippolito said that he wanted Cordero to vote for him Dippolito told the employees that there would be a company meeting to find out why they wanted a union The meeting was held at a diner on May 12 There Dip polito told the drivers that there was a possibility that Respondent could get them a benefits package for less than that offered by the Union and that there were alter nate health plans that could be looked into He informed them that any benefits the Union could get them would come out of their incentive pay because Respondent did not have the money to pay them higher wages, and that the Union would have to negotiate based on the avail FUTURE AMBULETTE 887 able funds Dippolito further told the drivers that, if they did not vote for the Union, Respondent would work to gether with them to get the benefits they wanted Dippolito told the drivers that the Union s business agent cannot be much of a representative as he had been discharged for having stolen money while working for another labor organization as a business agent On sever al occasions while talking with drivers, Dippolito re ferred to the Union s representative, Thomas Gioia, as Goya bean Raymond Rodriguez, a driver, was asked several times by Dippolito if he was going to vote for the Union or for him (Dippolito) In one of those discussions, Dippo lito told Rodriguez that if the Union came in he would turn the plant over to a friend who would make it harder for Rodriguez Dippolito also told him that , if the Union came in, he would deduct $20 from Rodriguez pay and give this money to the Union Rodriguez responded that he needed benefits to protect him if he was injured Dip polito responded that Respondent could bring in speak ers to talk about different benefit plans On the day of the election, Respondents president, Joseph Benevenuto stated in the presence of employees that if the Union wins the election he would close down the shop At the conclusion of the voting, the tally of ballots disclosed that the Union had won Benevenuto became furious and went about the plant screaming that he was closing down the business Dippolito told the drivers then that the shop was closed and that they were not to bother coming in 2 Analysis Dippolito s interrogation of Williams on April 11 was unlawful as it was accompanied by coercive statements, discussed further below, as Williams had not openly de Glared his support for the Union and as the information sought was specific, not general In Angelica Healthcare Services Group, 284 NLRB 844 (1987), the Board held that analogous conduct interfered with , restrained, and coerced employees in the exercise of their rights under Section 7 of the Act For substantially the same reasons, Dippolito s questioning of Cintron in mid April, his ques tioning Howell in late April and again on May 1 and 3 his questioning of Ralph Cordero on May 7 his question ing Fred Cordero in mid May, and his interrogations of Raymond Rodriguez-all tended to coerce them to vote against the Union See Structural Finishing 284 NLRB 981 (1987) Respondent, by Dippolito s having informed Williams on April 11 that there would be no union at its facility, conveyed to its employees its view that it was futile for them to seek representation by a labor organization Re spondent thereby unlawfully interfered with employees rights under Section 7 of the Act See Rood Industries, 278 NLRB 160 (1986) By the statements of Dippolito to Williams on April 11 that, if the Union got in, drivers wages would be cut $2 an hour and that the drivers would have to pay $80 to the Union, by Dippolito's informing the drivers that they would be sucking wind if they vote for the Union and that the Union would only make things worse for them, by telling Raymond Rodriguez that if the employees vote for the Union, he would turn the plant over to a friend who would make things worse for them, and that Rodriguez pay would be reduced by $20 which would be given to the Union-Respondent, by those statements threatened its employees with reprisals to discourage them from supporting the Union and thereby coerced them respecting the exercise of their rights under Section 7 of the Act See Bay State Ambulance Rental 280 NLRB 1079 at fn 3 (1986) The comments by Dippolito to Williams that he was not to miss a beat and that he would get something on him to get rid of him Dippolito s remark to Howell that he was going to get Williams in context with his ques tioning Howell then regarding his support of the Union, Dippolito s asking Howell on May 3 if he thought he would be fired, in the context of being asked if he was on Respondents side, and Dippolito s statement to Ralph Cordero that he had just discharged two employees be cause they were trying to separate our company, in context with his asking Cordero to give him assurance that he, Cordero, would vote against the Union-all these instances constituted coercive warnings by Re spondent that it would discharge employees if they sup ported the Union See Ryder/PIE Nationwide, 278 NLRB 713, 720 (1986) Respondent, by having notified its drivers that it would hold a meeting with them to find out why they wanted the Union, thereby solicited grievances from them This conduct constitutes an implied promise to re solve their problems and was undertaken in order to un dermine the Union s organizing effort Respondent thus interfered with employee rights under Section 7 of the Act See Gerber Co, 270 NLRB 1235, 1240 (1984) Respondent by the statements Dippolito made at a meeting of employees on May 12, sought to induce them into withdrawing their support for the Union by indicat ing to them that Respondent would provide them with a better benefit package than the Union could obtain for them, interfered with and restrained them respecting their Section 7 rights See Wilshire Foam Products 282 NLRB 1137 at 1158-1160 (1987) The General Counsel contends that Dippolito s derog atory comments regarding the Union s business agent s honesty and competence unlawfully disparaged the Union s organizing effort and thereby interfered with the employees Section 7 rights The Board cases are not clear in this area In Newsday Inc, 274 NLRB 86, 95 (1985), the Board adopted the judges finding that Sec tion 8(c) protected a remark that the president of the labor organization involved therein was corrupt as there was no evidence to the contrary In Southland Knitwear 260 NLRB 642 , 655 (1982), the Board adopted the judge's finding that the employer there violated the Act by stating that the president of the union involved in that case belonged to the mafia In Kawasaki Motors Corp 257 NLRB 502, 510-511 (1981), the Board of firmed a finding that the employer there violated the Act by telling employees that the labor organization in that case was responsible for making bomb threats as that em ployer had not shown a linkage of the threat to the Union None of these cases set out the rationale upon 888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD which disparagement of a union official can unlawfully impact on employees Section 7 rights In the case before me, it seems clear that Respondents employees would reasonably be expected to accept Dippolito s statements as accurate in view of his position as general manager and as one who has access to better sources than they Dippolito showed them no document that Gioia was ever convicted of a crime In effect I find he made a misleading statement that unwarrantedly impaired their free choice as to the selection of a bargaining representa tive It is reasonable also to infer that these dnvers con strued Dippolito s defamatory remarks about Gioia as a clear statement that they should have nothing to do with the Union which employed Gioia and that he Dippolito, certainly would not deal with it In the context of the other coercive remarks, particularly those which were found above to have conveyed the futility of the employ ees effort to have the Union as their collective bargain ing representative, I find that Respondent interfered with their Section 7 rights by its disparagement of Gioia when it had not offered its employees any documentation to show that Gioia was guilty of the wrongdoing it charged him with The General Counsel contends that when Dippolito told Howell on May 3 that he would get Williams and questioned Howell regarding his support for the Union (as discussed above), Respondent not only unlawfully in terrogated and warned Howell, but also unlawfully cre ated the impression that it engaged in surveillance on Williams activities for the Union I find no merit in that contention Howell could gust as easily infer that another employee had volunteered to Dippolito that Williams was assisting the Union as he could infer that Dippolito had arranged to have Williams observed sureptitiously Generalized statements that are not directed at a specific incident of union activity are insufficient to create the impression of surveillance See Palby Lingerie and Argers Lingerie Corp 252 NLRB 176 (1980) See also Premiere Maintenance 282 NLRB 10 at 13 (1986) Lastly I find that the threats to close by Benevenuto and Dippolito on the day of the election coerced Re spondent s employees as to their rights under Section 7 See Cartridge Actuated Device 282 NLRB 426 (1986) C Alleged Discriminatory Changes in Williams Working Hours and his Alleged Discriminatory Discharge 1 The testimony The Union's organizing campaign began when Wil liams met with a union representative on April 9 and passed out union authorization cards Williams was sub jected on April 11 to an interrogation by Dippolito re specting his passing out those cards and to related coer cive conduct Dippolito unlawfully warned Williams in mid April not to miss a beat" and, on several other oc casions expressed his intention in no uncertain language to find a reason to discharge Williams because of his ac tivities on behalf of the Union Dippolito even sought to solicit complaints from Respondents clients regarding the type of service Williams had rendered to them as a basis upon which Williams could be discharged Dippo lito in talking with employees, referred to Williams as the delegate Shortly after Williams initiated the Union s campaign, his working hours were changed from 8a in -5 30p in to 10a in -7 p in and changed again to 9a in -7p in No ex planation was given him He had been employed by Re spondent for about 6 months and had never had his schedule of working hours so revised At the hearing, Respondent proferred no explanation for revising Wil liams schedule The extent of Williams activities for the Union, Re spondent s patent hostility towards him because of those activities the timing of the changes in his working schedule relative to the start of the Unions organizing effort and Respondents failure to offer Williams a reason for changing his working hours-all warrant a clear inference that Respondent was retaliating against Williams to discourage support for the Union I find that the General Counsel has made out a prima facie showing of unlawful discrimination in effecting those changes It was then incumbent upon Respondent to demonstrate that it would have made those same changes regardless of Williams activities for the Union See St Paul s Church Home 275 NLRB 1242, 1253 (1985) As noted, Respondent tendered no evidence there I thus conclude that the General Counsel has sustained the burden of es tablishing that Williams working hours were changed in April in order to discourage him from continuing his of forts on behalf of the Union towards organizing the driv ers Williams and another driver, Jeffrey Howell (whose alleged unlawful discharge is discussed in the next sec tion) were the ones whom the Union used to communi cate with the drivers The Union scheduled a meeting for April 22 at a nearby diner which was attended by Williams and Howell along with Fred Cordero Ralph Cordero Tomas Gaton, Jack Randolph and Raymond Rodriguez and his wife On April 28, the Union filed its petition in Case 2-RC-20306 On May 5, the Union held a meeting at Pelham Bay Diner that was attended by about 16 drivers, virtually the full complement Dippolito s testimony reveals that he knew that a meeting was held at the Pelham Bay Diner A driver Joe Rodriquez told him later that same night the names of the drivers present at a union meet ing including himself and several others who had not been present at the April 22 meeting I infer from the foregoing that Dippolito on the night of May 5 was made cognizant of the union meeting held earlier that night On May 6 Williams reported for work He was met by Dippolito who told him he was fired Williams testi feed that he asked for a reason and that Dippolito did not respond Instead Williams testified Dippolito told him to pick up his check and to turn in his uniforms On a later date, according to Williams, Dippolito stated that Williams was discharged because a patient complained but when Williams asked for details of the complaint, Dippolito did not answer FUTURE AMBULETTE 889 2 Analysis In view of Williams activities for the Union Respond ent s union animus Dippolito s repeated statements that he would find an excuse to discharge Williams his of forts there which included his telephoning clients to learn of any complaints they might have against Wil hams, and Dippolito s failure to afford Williams the op portunity to answer a complaint purportedly lodged against him I find that the General Counsel has made out a prima facie showing that Respondent discharged Williams in retaliation for his helping the Union in its or ganizational effort The burden is then on Respondent to show that it would have discharged Williams, regardless of his activities on behalf of the Union Wright Line, 251 NLRB 1083 (1980) See also NLRB v Transportation Management Corp , 462 U S 393 (1983) 3 Respondents defense At the outset of Respondents cross examination of Williams, he was asked about whether his license was suspended, his accident record as a driver before he began working for Respondent, and regarding his appli cation for a job he held before coming to work for Re spondent The General Counsel objected to these ques tions as irrelevant Respondent argued then that Williams had been discharged by his previous employer for rea sons that parallel the reasons for which Respondent let him go Respondents counsel was asked what those rea sons were He responded that he wanted to explore the matter and he observed that he was not entitled to pretrial discovery I sustained the objection Respondent then went on to examine Williams regarding his accident record while in its employ and , in that connection, asked about an accident that occurred in April 1987 involving a Spanish speaking gentleman When the General Counsel objected as to relevancy, Respondent's counsel replied that this is why [Respondent] fired [Williams] and on that representation , he was allowed to proceed in that area Respondents counsel later stated that Williams was discharged for having been engaged in three acct dents that he did not timely report to Respondent and for the reckless manner in which he operated a van while transporting a client Williams testified that he had only two accidents while in Respondents employ-one in March and a second in April He testified that he reported the first one immedi ately to Respondents dispatcher by way of the two way radio and that, as he had no radio in his van at the time of the second accident , he could not report it immediate ly Williams recited that he left the second accident with out getting the other driver's license and that he received a 1 day suspension for not having secured that informa tion Dippolito testified as follows respecting the reasons for terminating Williams' employment Williams was dis charged because he failed to report three accidents in a timely manner and because of a complaint letter written by a patient Dippolito had learned of two of the acci dents when he received letters about them from his in surance broker (One such letter was placed in evidence by Respondent It was a form letter dated September 21 it referred to an accident on January 9 and asked only as to how Williams was connected with Respondent) Re garding a second accident , Williams did not tell Dippo lito about it until several days later and Williams had failed to obtain the name and address of the driver of the other vehicle Dippolito suspended Williams for 1 day because he had failed to get the other driver s license data The third accident must have occurred on a Friday night Dippolito drew that conclusion from the fact that on the following morning , he observed that a van was damaged and from the fact that Williams had been as signed to drive that van on the previous day Although Williams denied having caused the damage , Dippolito did not believe him Regarding the complaint letter, Dip polito received a letter dated May 3 from a patient, Bob Gaioni In that letter, Gaioni wrote that Williams when he transported him on April 29 and 30, drove danger ously fast despite being asked to drive at a moderate rate Gaioni wrote also that as he is a quadriplegic, any sudden stop could injure his neck The letter concluded with a request to Respondent that it should not send Williams to pick him up in the future Dippolito dis charged Williams the very next time he saw Williams telling him this was the last straw and that he could not work for [Respondent] anymore that he couldn t tol erate any more of this reckless driving damaging my equipment and abusing my patients Dippolito did not solicit Gaioni's letter Gaioni had asked him in a tele phone conversation, not to send Williams to pick him up Dippolito informed Gaioni in that conversation that he could not do anything about the request until Gaioni put it in writing Gaioni then documented his request in writ ing Dippohto concluded his direct examination regarding Williams discharge by stating that Williams had been fired because of his driving record and series of com plaints culminating with the complaint that was docu mented by Mr Bob Gaioni In a prehearing affidavit Dippolito stated that he had informed Respondent s president Benevenuto that Williams was fired as a result of a complaint letter " 4 Further analysis As is apparent from the above the accounts of Wil Hams and Dippolito differ as to what was said at the time of Williams discharge Williams testified that he had then asked for a reason and that Dippolrto did not give him one that day Dippolito s testimony is that he told Williams he could not tolerate Williams' reckless driving, his damaging equipment, and his abusing patients I credit Williams version Dippolito's testimony seems to conflict with his earlier stated reason for discharging Williams, i e, that Williams had failed to make timely re ports of the accidents Moreover, Dippolito did not deny Williams' testimony that, at a later date when Williams was told he was discharged because a patient complained about him he asked Dippolrto for details but got no re sponse Further I am not disposed to credit Dippolito s account in view of the unpersuasive nature of other as pects of his account as discussed next 890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In the course of cross examining Dippolito the Gener al Counsel placed in evidence reports obtained from Re spondent s files concerning accidents in which other drivers of Respondent were involved One of those driv ers, Alvin Wade, came to a sudden stop on one occasion while transporting a patient and this resulted in the pa tient sliding out of her wheelchair She sued Respondent for 1 million Wade was not discharged then although, as the General Counsel notes, Wade apparently had not se cured her properly with a seatbelt Wade, while working for Respondent, had four other serious accidents In one, a patient had slipped out of a wheelchair when Wade stopped his van suddenly, and on another occasion, a pa tient fell from his seat when Wade came to a sudden stop and this resulted in the patient suffering a dislocated arm When Dippolito was asked why he did not discharge Wade for that accident in which a patient sued Re spondent for $1 million when she slipped from under her seatbelt that she contended had been improperly secured by Wade, Dippolito answered After the accident we did not immediately re ceive the law suit but I didn t fire Mr Wade be cause of the law suit which was a direct result of the accident I fired him because of-the second time in a matter of two to three weeks a patient fell out of a chair and I couldn t accept as an excuse that the patient slipped under the seat belt I had to make a judgment that Mr Wade was not taking proper precautions with the people in his charge while they were in my vehicle Dippolito appears to have offered varying reasons for finally discharging Wade At one point he testified he discharged Wade immediately after his last serious acct dent Later, he testified that he fired Wade because he, Wade started to lose his concentration and started to make some avoidable accidents too many for Dippolito s liking There are two other drivers, still in Respondent s employ who have had accidents much more serious than Williams' For that matter Dippolito conceded on cross examination that the damage done to Respondents vehi Iles, chargeable to Williams was minor Upon reviewing the evidence submitted by Respond ent in rebuttal of the General Counsels prima facie showing, I am not at all persuaded that Respondent would have discharged Williams, absent his having en gaged in activities in support of the Union Rather, it ap pears that Respondent at varying points was searching about to locate a nondiscriminatory reason it could use as a defense At first, Respondent seemed to be exploring Williams driving license record for deficiencies, then its focus shifted to an assertion that he failed to make timely accident reports Respondent then presented evidence re garding his accident record but that faded when com pared with the records of other employees who were treated with lenience despite their having been involved in much more serious incidents Lastly it fell back on Gaioni's letter which Dippolito solicited, although he denied having done so I note that Dippolito never gave Williams an opportunity to respond to Gaiom s com plaint although Dippolito was forgiving in his dealings with other employees I note too that Gaioni s complaint did not contemplate Williams being fired and that Dip polito s insistence that he needed the complaint in writ mg in order to take care of it is consistent more with his efforts to find a reason to get Williams (as Howell has testified) than with an intent to accommodate Gaiom Having found that Respondent has not demonstrated that Williams would have been discharged absent his union activities, I find that the General Counsels prima facie showing of discrimination has not been rebutted and I therefore conclude that Williams was discharged by Respondent because of his activities in support of the Union D Alleged Unlawful Discharge of Jeffrey Howell 1 The testimony Howell began working for Respondent in February 1986 as a driver He and Williams were the first of Re spondent s employees to sign union authorization cards The Union s business agent named Williams and Howell as the employees of Respondent who kept him informed during the organizational campaign As noted above, Howell was questioned more than once by Dippolito re specting his feelings about the Union In early May, Dip polito asked him if he had signed a union card and re ceived an answer that Dippolito characterized as ambig uous Howell attended a union meeting on May 5 Dip polito was told beforehand by one of the drivers that that meeting would be held and was told afterwards what transpired at it On the following day, Howell was discharged, as was Williams as noted above Howell was asked by Dippolito on May 6 to produce his driver s license Howell replied that it was suspended and asked Dippolito for a chance to go down to the motor vehicle office that day to get his license reinstated In order to do this Howell had to pay fines that had ac cumulated for various traffic offenses Dippolito did not grant Howell s request Instead he told Howell that he was discharged as of right now As Howell was leav mg, he told Dippolito that if he was being fired because he had no license Dippolito should have done that months ago He was referring to an accident he had on February 9 while driving for Respondent He was being held then on $ 100 bail for driving without a license He had telephoned Dippolito on February 9 to tell him of this and was freed when another of Respondents drivers appeared with $100 from Dippolito which was posted as bail On the same day Howell was discharged Dippolito asked another driver, Stephen Gunto, for his license He was unable to produce it As of the hearing, Gunto still does not have a valid license and is nonetheless still in Respondents employ as a driver For that matter the driving abstracts of many of Respondents current dnv ers disclose that their licenses have been suspended or have expired Howell returned to Respondents office on May 7 to pick up his paycheck and overheard Dippolito 's conver sation with the dispatcher, Ralph Cordero Dippolito had telephoned Cordero and his call came over a speaker FUTURE AMBULETTE 891 phone Dippolito, as discussed earlier, asked Cordero if he still had his vote and then told Cordero that Williams and Howell were trying to seperate the Company and that he got nd of those two morons 2 Analysis In view of the evidence of Howells union activities, Respondents knowledge of the May 5 union meeting which Howell attended, the union animus exhibited by Respondent as discussed earlier , the summary discharge of Howell and the disparate treatment accorded him with respect to the discharge, the pretextual nature of the reason given by Respondent as it was aware before the Unions campaign began that Howell's license was not current, and virtual admission by Dippolito on May 7 that Howell was discharged with Williams because they favored the Union, I conclude that the General Counsel has met her burden under Wright Line supra, of establishing a prima facie case that Howell was dis charged because of his union activities The burden de volves on Respondent to demonstrate that Howell would have been discharged absent his union activities Dippoli to's testimony as to that aspect is as follows It came to his attention as a result of an audit by the State of New York, calling for production of all driving licenses, that he learned that Howell 's license had ex pired in January As a consequence Howell was told he could not work for Respondent Respondent placed in evidence a letter, written in longhand on the letterhead of the State of New York and dated May 6 Dippolito received that letter in the mail That letter states that the signer must see all licenses for the review period, No vember and December 1986 I find that the evidence submitted by Respondent is in adequate to sustain a finding that it would have dis charged Howell regardless of his union activities If any thing Dippolito s testimony may well buttress the Gen eral Counsel s case as it seems that Dippolito is saying that he discharged Howell on May 6 based on a letter dated that same date and received through the mail and which asked for the status , inter alia of Howell's license as of late 1986 when according to Dippolito, Howell s li cense apparenlty was valid as it expired in January 1987 Based on the prima facie showing of unlawful discrim ination which has not been rebutted I conclude that Howell had been discharged on May 6 because of his ac tivities on behalf of the Union E Alleged Unlawful Suspensions and Discharge of Tomas Gaton I The testimony Gaton began working as a driver for Respondent on April 13 He signed an authorization card for the Union on April 22 and attended a union meeting held later that day As noted above, virtually all of Respondent's dnv ers were present at another union meeting held on May 5 Dippolito acknowledged that several drivers had vol untarily kept him informed of the Union s organizational efforts On May 9 Gaton's van did not start after he brought a client home He called for help and another driver was dispatched to assist him He got the van started and brought it back to Respondents facility He was told then to take the rest of the day off Gaton worked on May 11 and 12 Upon returning to Respondents premises on the evening of May 12, the dispatcher informed him that Dippolito had left word that he, Gaton, was not to come to work the next day Nonetheless, Gaton appeared the next day Dippolito then asked him why he was there Gaton asked if he was fired Dippolito responded that the dispatcher could fire him Gaton stated that the dispatcher did not fire him and he insisted that Dippolito tell him why he could not work Dippolito then said that Gaton drove too fast and that he did not put seatbelts on the patients Gaton re sponded that those charges were not true Dippolito told Gaton to leave and that, if he did not Dippolito would call the police Gaton left He testified that he had never been told previously that he drove too fast or failed to seatbelts patients Dippolito testified that Gaton was always very late in picking up patients, that he was reluctant to touch people, drove too fast, made frequent stops at phone booths apparently to make personal calls, did not follow safety procedures, and failed to improve despite Dippoli to s telling him repeatedly that he had to do better Dip polito testified that the factors that precipitated Gaton s discharge were the complaints he received from another driver Onyx Lugo, an evaluation furnished by em ployee Jeremy Casucci, and Dtppoltto s own observa tions Lugo, who was the first employee to volunteer to Dtppoltto that the Union had begun an organization effort, testified as follows for Respondent He worked with Gaton on two occasions On one of those, Gaton was too weak or too tired to do his part in carrying a patient up a staircase and did not follow instructions Casucci testified as follows for Respondent He worked for Respondent for about a month He had been hired by Dippolito to observe the performances of Re spondent s drivers and was trained by Dippolito and a few drivers regarding the work involved Casucci rode with four drivers (It is not clear whether those four were different drivers than those whom Casucci testified had helped train him) Gaton was a reckless driver had patients screaming at him and did everything wrong Casucci reported to Dtppolito twice about Gaton s per formance Dtppoltto told him that he would get on [Gaton's] case let him know about it Casucci left Re spondent s employ for a better job Dippolito testified that he has known Casucci for about 3 years and that Casucci worked for another com pany of which Dippolito was a part owner 2 Analysis The General Counsel has alleged that Gaton had been unlawfully suspended on or about May 9 and unlawfully discharged on or about May 12 For the reasons set out below I conclude that the evidence is insufficient to es tabltsh that he had been discriminatonly suspended Re garding his alleged unlawful discharge , however, I con 892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD elude that Respondent discharged him to discourage membership in the Union Respecting the alleged unlawful suspension, the evi dence proffered shows at best that he worked only part of a day because his van was not operating properly The reason for his discharge , however, is another matter In his brief history with Respondent, Gaton actively supported the Union, having signed a union card and at tended union meetings From the small size of Respond ent s employee complement, from the union animus it ex hibited as discussed earlier, and from the evidence that Dippolito received reports from employees as to the Union s organizational efforts including developments at union meetings, I find that Respondent knew that Gaton supported the Union See BMD Sportswear Corp, 283 NLRB 142 (1987) The uncontroverted evidence makes clear, too, that Dippolito would not hesitate to cull from Respondents ranks those who supported the Union He had begun doing so by having discharged Williams and Howell the week before Gaton s discharge Gaton had never received any warnings from Respondent about reckless driving" or about patients screaming at him I find Gaton's testimony that he was never warned to be more convincing than Dtppoltto s testimony that he had told Gaton repeatedly to do better The evidence Respondent submitted to meet its burden of demonstrating that Gaton, absent his union activities, would have been discharged is not persuasive I find it most difficult to accept Casucci's account that he, with out having any experience, was trained to evaluate driv ers and then evaluated them-all in the course of a month's employment It seems most unlikely too that pa tients screamed at Gaton, that Casucci reported this to Dippolito and that Dippolito indicated that he would get on Gaton s case, as Casucci testified Lastly, I am most suspicious of Casucci s testimony that he left Re spondent s employ for a better job It appears he began his employment with Respondent in time to be listed as an eligible voter on the Excelsior list Respondent submit ted in Case 2-RC-20306 Incidentally I note that the list was submitted on May 14 and that it did not of course, contain Gaton's name as he had just been discharged In view of the prima facie showing of discriminatory motivation and as Respondent has proferred insufficient evidence to demonstrate that it would have discharged Gaton notwithstanding his union activities I find that the General Counsel has established that Gaton was dis charged by Respondent in order to discourage its dnvers from supporting the Union F Alleged Unlawful Discharge of Raymond Rodriguez and Alleged Unlawful Reduction in his Vacation Pay 1 The testimony Raymond Rodriguez worked for Respondent as a driver from 1984 until his discharge on June 2 He signed an authorization card for the Union on April 9 and at tended the first union meeting on April 22 accompanied by his wife As noted above virtually all the drivers at tended another union meeting, held on May 5, and Dip polito was made aware of this, also as noted above Ro driguez was questioned several times by Dippolito re garding his sympathy for the Union and, on one occa sion, he told Dippolito that the drivers were frustrated and needed the Union Rodriguez also told Respondent's president, Joseph Benevenuto, that he had waited too long when Benevenuto, while discussing benefits in the context of the Union s campaign, promised that he would bring in an insurance person to talk with the dnvers On May 30, a taxicab, traveling at an excessive speed according to Rodriguez, struck his van in the rear The van turned over two or three times Rodriguez was taken to a hospital and was released later that day Dip polito told him to stay home for several days Rodriguez called Dtppoltto on June 2 and said he wanted to return to work Dippolito told him again to stay home for a couple of days and that , if he felt up to it, to go to Re spondent s insurance broker to fill out a report On the following day, Rodriguez visited the broker, gave him a report and then told him that Dtppoltto would not let him go back to work The broker placed a call, after which he told Rodriguez that Dippolito wanted to find out if he, Rodriguez, was at fault or was intoxicated at the time the accident occurred On June 5, the election in Case 2-RC-20306 was held Rodriguez was driven to Respondent 's premises by the Union's business agent along with Jeffrey Howell (who had been discharged on May 6 as discussed above) and with Jose Cintron Respondents president, Joseph Bene venuto, came over to them as they were waiting in the car, then parked across the street from Respondent s premises He asked what they were doing there Rodri guez told him that he and Cintron were there to pick up their paychecks He told them that Dippolito had the checks Rodriguez and Cintron went over to Dippolito's office and while there, Benevenuto too came in and said the cab driver wanted to sue Respondent Rodriguez then explained in detail to Dippolito and to Benevenuto how the accident occurred Dippolito told him that he could not work there for now as they still had to wait for some paperwork to come in " Benevenuto told him to get his belongings Rodnguez went to his van to remove them Benevenuto followed him Rodri guez asked him if he Benevenuto was doing this to him because he was upset with the Union Benevenuto told him that if the Union wins the election you guys will go and, it will be up to the Union [to] get you a job As discussed earlier the Union won the election and Benevenuto in a virtual tantrum , said that he was clos ing down Rodriguez returned a week later to pick up his vaca tion check, equal to a week s pay , $300 Instead, his check was for $198 Rodriguez protested to Benevenuto who told him that Dippolito who was not present then takes care of those matters Dippolito testified regarding Respondents reasons for discharging Rodriguez On his direct examination he tes tified as follows Rodriguez was fired because he had a series of accidents with patients, including one when he had fallen on top of a patient and also because Dippoli to's van was parked one night outside a known crack house Rodriguez was discharged precisely because his FUTURE AMBULETTE final accident resulted in a new van being turned over Dippolito also stated that immediately after the last acci dent he observed Rodriguez' eyes and believed he was using drug., On cross examination, Dippolito testified that Rodriguez was discharged because of his handling of patients and of Mr John Sheehan in particular and because he had three accidents in an 11 month period Sheehan did not make a written complaint to Respond ent Dippolito testified also that suspected drug use by Rodriguez was not part of the reason for his discharge 2 Analysis The evidence is clear that Rodriguez actively support ed the Union and that Respondent knew that he did The ambivalent way it conveyed to him that he was dis charged indicates that it did not have a valid basis to do so The actual discharge notice appears to have been Benevenuto s direction that Rodriguez take his belong ings and leave That was said in the context of a define tive statement, made moments later, that the Union will have to find Rodriguez his next job In light of the fore going and the record as a whole, the General Counsel has made out a prima facie case that Rodriguez was dis charged because of his support for the Union Respondent has not met its burden of coming forward with sufficient evidence to show that it would have dis charged Rodriguez absent his support for the Union The reasons it proferred were in part contradictory and vacil lating Further, it did not begin to show why it waited until just after the Union won the election to discharge Rodriguez on grounds that may have taken place in the period from a week to 11 months previously I therefore conclude that Respondent discharged Ro driguez on June 6 because he supported the Union Re garding the allegation that his vacation pay was unlaw fully reduced, I find that the General Counsel has estab lished prima facie that Rodriguez received an amount less than the sum due him and that Respondent paid him the lesser figure as yet another step in its effort to dis courage support among its employees for the Union As Respondent offered no rebuttal evidence thereon, I con clude that it reduced Rodriguez vacation pay because he supported the Union The exact amount of the reduction will have to await the compliance stage G Alleged Discriminatory Discharge of Jose Cintron I The testimony Cintron worked as a regular driver of Respondent from November 1986 to April 3, 1987 when he broke his leg and was placed on disability leave He was told by Dippolito that he still had a job As noted above, he was driven to Respondents prem ises on June 6 by the Union s business agent and was told by Benevenuto that he and the union representatives were not to wait on Respondent s premises On June 11 Dippolito sent him a letter reading I regret to inform you that due to your pro longed disability I can no longer hold your position open as driver 893 Upon removal of your cast and rehabilitation, if you find you are physically able to function as a driver, we will consider your application once again We are requesting disability forms and are ex pecting them shortly At the hearing, Dippolito asserted that Cintron is cur rently on disability leave and that he was not fired 2 Analysis In determining whether an employee has been dis charged, events must be viewed from the employee s perspective, the test is whether the actions of an employ er would reasonably lead an employee to believe that he has been discharged Cf Trident Recycling Corp, 282 NLRB 1255 (1987) Notwithstanding Dippolito s asser tions at the hearing, Respondent's letter to Cintron that it would consider his application for employment when he is able to drive left him with the distinct impression that he had been discharged Thus, I find that he was in fact discharged on June 11 and that the only plausible expla nation as to why he was sent the letter then was that he appeared at the election on June 6 in the company of the union representatives I therefore find that prima facie, he was discharged on June 11 because of his activities in support of the Union and as Respondent offered no re buttal evidence, I conclude that Respondent discharged him to discourage employees from supporting the Union H Alleged Discriminatory Discharge of Fred Cordero 1 The testimony Cordero worked as a driver for Respondent from No vember 16, 1987 until his discharge on June 12 He signed a union authorization card on April 8 and attend ed the union meetings on April 22 and May 5 On Friday, June 6, the date of the election Respondent s president informed employees that the shop was closed and that they were not to bother to return He thus did not report to work on Monday, June 8, but, when he learned from his brother that the shop was open again, he reported for work on June 9 On June 11 Dippolito assigned Cordero to drive a van that did not have a right hand sidemirror Cordero testified he refused to drive that van and that Dippolito told him to go home On the following day, he returned for an assignment Dippolito told him he no longer worked there Dippolito s account is that when Cordero refused to drive the van because it lacked a right side view mirror, Cordero also said he was `booking, an expression un derstood to mean that Cordro was quitting employment 2 Analysis The General Counsel contends that Respondent seized upon Cordero's refusal to drive what he considered to be an unsafe van as a pretext to discharge him because of his support for the Union and that Cordero did not quit his employment I find that when Cordero was told to leave on June 11 after refusing the assignment, his employment status with 894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent was then terminated and it is immaterial whether he quit or was discharged then There is no contention that he quit because he was constructively discharged The timing of the incident on June 11 sup ports only that the termination of his employment had to be related to his refusal then to take the job assigned Were it necessary to decide if he used the term `book ing" on June 11, I would find Dippolito s testimony there is more consistent with the circumstances then those in Cordero's denial that he used that term I therefore conclude that the General Counsel has not made out a prima facie showing that Cordero was dis charged on June 12 because of his activities in support of the Union CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act 2 The Union is a labor organization as defined in Sec tion 2(5) of the Act 3 Respondent, in violation of Section 8(a)(1) of the Act has interfered with, restrained , and coerced its em ployees in the exercises of their rights under Section 7 of the Act by having (a) Coercively questioned employees regarding their support for Local 1034, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) (b) Told employees that there will be no union at its facility (c) Threatened to reduce wages to make conditions worse for employees and to take unspecified reprisals against employees in order to undermine their support for the Union (d) Warned employees that they can be discharged for supporting the Union (e) Impliedly promised employees benefits by soliciting grievances from them for the purpose of discouraging support for the Union (f) Made disparaging and misleading remarks to em ployees about union officials in order to induce them to abandon their support of the Union (g) Threatened that it would close down its facility to induce employees to withdraw their support of the Union (h) Engaged in the conduct described below in para graph 4 4 Respondent engaged in unfair labor practices in vio lation of Section 8(a)(3) of the Act by having (a) Discharged Anthony Williams Jeffrey Howell Tomas Gaton, Raymond Rodriguez , and Jose Cintron in order to discourage membership in the Union (b) Reduced the working hours of Anthony Williams in order to discourage union membership (c) Reduced the vacation pay of Raymond Rodriguez to discourage membership in the Union 5 The unfair labor practices found in paragraphs 3 and 4 have a close intimate and substantial relationship to trade traffic and commerce among the several States and tend to lead to labor disputes burdening and ob was rotten to the core with illegal drivers structing commerce and the free flow of commerce within the meaning of Section 2(6) and (7) of the Act 6 Respondent did not unlawfully suspend Tomas Gaton, unlawfully terminate the employment of Fred Cordero, create the impression among employees that it engaged in the surveillance of their union activities or commit unfair labor practices other than those found above in paragraphs 3 and 4 THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or dered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act As noted above Jeffrey Howell s driver's license had been suspended for nonpayment of fines and it appears that Anthony Williams license had also been suspended some time before his discharge It would be inappropri ate for the Board to order Respondent to reinstate them to their former jobs as drivers if they still do not have valid licenses The fact that Respondent has employed drivers, who also had no valid licenses, i could not justi fy a Board order directing Respondent to put unlicensed drivers on the road Of course, Respondent however, is not to be relieved of its backpay liabilities because of Williams and Howell s license deficiencies so long as it countenances those of the drivers on its current staff This is the clear import of the holding in Rainbow Coach es, 280 NLRB 166 at 200 (1986) There the Board adopt ed the recommended backpay order that, inter alia pro vided for backpay to a driver who lacked the requisite driving license and where, as here, the employer had to have known this Therefore it is appropriate to insure that the discrimination here will cease and also be fully remedied as to Howell and Williams, among others without doing violence to the motor vehicles statutes of the State of New York by requiring Respondent, (1) in its reinstatement offers to Howell and Williams as de scribed in the next paragraph, to keep them open and (2) to make Howell and Williams whole for all earnings lost as a result of their unlawful discharges so long as it has one or more drivers on its payroll with suspended or otherwise invalid licenses Having found that Respondent has unlawfully dis charged Anthony Williams, Jeffrey Howell Tomas Gaton, Raymond Rodriguez, and Jose Cintron I shall recommend that Respondent shall be ordered to offer them reinstatement to their former jobs or if these no longer exist, to substantially equivalent positions of em ployment and make them whole in accordance with the method prescribed in F W Woolworth Co, 190 NLRB 289 (1950) with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) Respondent shall also be ordered to make Anthony Williams and Ray mond Rodriguez whole with interest computed in the same manner with respect to their respective losses re ' Indeed the General Counsels brief stated that Respondents staff FUTURE AMBULETTE suiting from reduction in working hours and vacation pay On the basis of these findings of fact and conclusions of law and on the entire record I hereby issue the fol lowing recommended2 ORDER The Respondent, Future Ambulette, Inc New York, New York, its officers, agents, successors, and assigns shall 1 Cease and desist from (a) Coercively questioning employees regarding their support for Local 1034, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) (b) Telling employees that there will be no union at its facility (c) Threatening to reduce wages, to make conditions worse for employees, and to take unspecified reprisals against employees to undermine their support for the Union (d) Warning employees that they can be discharged for supporting the Union (e) Impliedly promising employees benefits by solicit Ing grievances from them for the purpose of discourag ing support for the Union (f) Making disparaging and misleading remarks to em ployees about union officials in order to induce them to abandon their support of the Union (g) Threatening that it would close down its facility to induce employees to withdraw their support of the Union (h) Discharging employees in order to discourage membership in the Union (i) Reducing working hours or vacation pay in order to discharge membership in the Union (l) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer immediate and full reinstatement to Anthony Williams Jeffrey Howell Tomas Gaton Raymond Ro 2 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 895 dnguez, and Jose Cintron to their former jobs or, if those jobs no longer exist, to substantially equivalent ones, without prejudice to their seniority or other rights and privileges and make them whole for their lost earn ings in the manner set forth in the remedy section above including moneys due Anthony Williams and Raymond Rodriguez for losses incurred by them, respectively, for reduction in working hours and vacation pay The rein statement offers to Anthony Williams and Jeffrey Howell will remain open to them as described in the remedy sec tion (b) Remove from its files all reference to the discrimi natory discharges of those five employees and to the dis criminatory reduction in working hours and vacation pay of respectively Anthony Williams and Raymond Rodri guez and notify each of these five employees in writing that this has been done and that evidence of unlawful conduct will not be a basis for future personnel action against them (c) 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 amount of backpay due under the terms of this Order (d) Post at its facility in New York, New York, copies of the attached notice marked 'Appendix' 3 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondents au thonzed representative, shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) 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 RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found 3 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