American Medical Transport, Inc.

AMERICAN MEDICAL TRANSPORT 285 American Medical Transport, Inc. and Lino Concep- cion Case 2-CA-19150 24 September 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 27 February 1984 Administrative Law Judge Robert T Snyder issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision 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,' and conclusions 2 and to adopt the recommended Order as modified 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, American Medical Transport, Inc , New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 2(b) and re- letter the subsequent paragraph ' The Respondent has excepted to some of the judge s credibility find ings 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 We hereby note several errors made by the judge which do not affect our decision In discussing the paycheck which Concepcion received on the date of his discharge, the judge stated that the check was dated 29 June, when in fact It was dated 29 September 1982 The judge also noted that Concepcion commenced employment with the Respondent on 6 Sep tember 1982 when his commencement date was actually 16 September 1982 We also note the proper spelling of employee Pat Andriani s name, which is misspelled in the judge's decision as Adriani" and in the tran script as 'Andrew Further the Respondent has excepted to the judge's finding that Concepcion was "rewarded with a day off from work with pay We have reviewed the record and find that it does not support that finding The Respondent submitted weekly work and payroll records for the period in question which indicate that Concepcion was granted a day off, however, it was without pay Nonetheless, the error does not affect our decision 2 In the absence of exceptions thereto we adopt, pro forma, the judge s dismissal of the complaint Insofar as it alleges that the Respond ent independently violated Sec 8(a)(1) of the Act by discharging Con cepcion 3 We will also order the Respondent to remove from its records any reference to the discharge of Lino Concepcion, to notify Concepcion that this has been done, and that the evidence of the unlawful discharge will not be used against him See Sterling Sugars, 261 NLRB 472 (1982) "(b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the dis- charge will not be used against him in any way" 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 WE WILL NOT threaten or discharge any of you for supporting Division, 1181-1061 Amalgamated Transit Union, or any other labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer to Lino Concepcion immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest WE WILL remove from our files any reference to the unlawful discharge and notify him in writing that this has been done and that the discharge will not be used against him in any way AMERICAN MEDICAL TRANSPORT, INC DECISION STATEMENT OF THE CASE ROBERT T SNYDER, Administrative Law Judge This case was heard by me on April 4 and June 29, 1983 1 The complaint, which issued on December 23, 1982, al- leges that American Medical Transport, Inc (Respond- ent or American) about September 30, 1982, threatened an employee that it would discharge any employees who engaged in activities on behalf of Division 1181-1061 Amalgamated Transit Union (the Union) and discharged its employee Lino Concepcion (the Charging Party) and since said date has failed and refused to reinstate him, be- cause Concepcion joined, supported, or assisted the The hearing, which closed on April 4, 1983, was reopened on June 29, 1983, by order following Respondent's application to reopen the hear mg, if necessary, to make a particular document part of the record and the General Counsel's response not opposing the reopening if allowed to introduce evidence responsive to Respondent's submission 272 NLRB No 49 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, and in order to discourage employees from en- gaging in such activities or other concerted activities for the purpose of collective bargaining or other mutual aid or protection, in violation of Section 8(a)(1) and (3) of the Act. By answer dated January 3, 1983, and orally amended at the hearing, Respondent denied the material and conclusionary allegations of the complaint. On the entire record, including my observation of the demeanor of the witnesses and after careful consideration of the briefs filed by Respondent and the General Coun- se1, 2 I make the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION STATUS Respondent, a New York corporation, with its sole office and place of business located in New York, New York (the facility), is engaged in the operation of an am- bulette and livery service transporting patients to and from hospitals and other health related institutions. The complaint alleges that based on a projection of its operation, since they commenced about February 1, 1982, Respondent, in the course and conduct of its busin- iss operation, will annually purchase and receive at its fa- cility, products, goods, and materials valued in excess of $50,000 directly from firms located within the State of New York, which firms, in turn, are engaged in inter- state commerce and meet a Board standard for the asser- tion of jurisdiction, exclusive of indirect inflow and out- flow. 3 Respondent denies this allegation as well as the conclusionary allegation that it is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. In a Decision and Direction of Election in companion Case 2-RC-19413, American Medical Transportation Inc., dated December 22, 1982, the Acting Regional Director asserted jurisdiction over American on the following fac- tual findings. In the period from commencement of its business operations in February to September 1982, the Employer derived gross revenues of $83,000, and also es- timated that those revenues after an initial startup lag were exceeding $30,000 a month Only $1000 of that total was derived directly from services performed for private individuals. The overwhelming bulk of its work originates in telephone requests from hospitals and other health-related institutions. One half of its revenue is de- rived from performing services for Beth Israel Hospital under a purchase order pursuant to which American pro- vides livery service for Beth Israel's patients for 1 year and Beth Israel pays the employer directly. As to ambu- lette services, Beth Israel contacts American on an "as needed" basis, and payments are made to the Employer by a firm, Bradford, which acts as intermediary between the Government and private firms, in dispersing Medic- aid payments. Another large American customer is the Queens Artificial Kidney Center (Queens Dialysis Center or QDC) from which it derives directly about $12,000 a 2 The parties filed briefs following the original closing of record on April 4, 1983, and then supplemented these with letter bnefs responsive to the matters heard on the reopening of the record on June 29, 1983 3 See Stemons Marling Service, 122 NLRB 81 (1958) month for transporting patients to and from the institu- tion's kidney dialysis facility. Respondent operates 12 vehicles which it leases from the Hudson United Bank, located in New Jersey, at a cost of $4100 a month. It also purchases gasoline valued in excess of $15,000 which originated outside the State of New York, from a service station located in New York State. The combined projected annual expenditures for these items exceed $50,000. Base on the foregoing, and applying the Board's long held view that where an employer is engaged in both retail operations which are more than de minimus and in wholesale operations, jurisdiction will be asserted if the Employer meets either its standard for jurisdiction for nonretail or retail enterprises. 4 The Acting Regional Di- rector found appropriate application of the nonretail standard to Respondent, inasmuch as its operations con- sist almost entirely of business relationships with institu- tional consumers of its services 6 and under its own pro- jected annual expenditures in excess of $50,000 for goods and supplies which originate outside New York State, the Board's nonretail standard is satisfied. At the hearing, Respondent's president and a medical doctor Ian Albert Spira testified that since October 13, 1982, there had been a significant decline in the amount of revenue derived from services performed for the Queens Artificial Kidney Center by as much as 60 to 70 percent. However, when Spira provided the changed fig- ures, gross revenues totaled now $8500 to $8000 a month as against $12,000 previously, a decline of only 30 to 36 percent. Spira also noted that 60 percent of the revenue is paid directly by Medicaid (through an intermediary, McCauto, who succeeded Bradford) and the remaining 40 percent is paid by the hospital or institution after its receipt of Medicaid payments. As for its gross revenue after 1 year of its operation, Spira "guessed" it was around $200,000. The income de- rived from its business with Beth Israel Hospital still is roughly half of its total, and although livery service dropped off a little and now constitutes one-seventh of its Beth Israel volume, the ambulette work has grown a little bit. As for expenditures, Respondent now has a 3-year lease covering 13 vehicles with the Hudson United Bank on which it pays approximately $5000 a month. Since January 1983, Respondent has only been operating six of the vehicles, and its purchases of gasoline for their oper- ations has averaged $2500 a month. The combined total of these purchases continues to exceed $50,000 annually. Based on the foregoing facts contained in the Decision and Direction of Election 6 as updated at the instant hearing without significant change by its president and applying the Board's applicable standards for assertion of jurisdiction over an employer with a combined retail and 4 Man Products, Inc., 128 NLRB 546 (1960), Indiana Bottled Gas Ca, 128 NLRB 1441 (1960) 5 Walter's Ambulance Service, 212 NLRB 422 (1974), Bob's Ambulance Service, 178 NLRB 1(1969) 6 Respondent's request for review was denied by direction of the Board on February 8, 1983, as it raised no substantial issues warranting review AMERICAN MEDICAL TRANSPORT 287 nonretail operation, I conclude, contrary to its denial, that the nonretail jurisdictional standard is applicable to Respondent's operation, that based on Respondent's annual expenditures in excess of $50,000 for goods and supplies which originate outside the State of New York over its last full year of operation, it satisfies the Board's nonretail standard, and that, accordingly, Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES Lino Concepcion commenced employment as a driver for Respondent on September 6, 1982 7 He was dis- charged on September 29, 1982 During the period of his employment Respondent employed 11 drivers, a dis- patcher, and an office secretary One of the drivers, Pat Andriani, also was claimed to be a supervisor by Con- cepcion, but the record fails to contain evidence as to the nature of his duties which would support a finding that he exercised supervisory authority within the meaning of Section 2(11) of the Act, and neither does the complaint allege that Andriam held such status Drivers worked shifts according to daily schedules which they received late in the afternoon after the com- pletion of the morning shift The daily schedule listed for the drivers in separate columns the pickup time, name of patient, patient address, and the time to start picking up patients at the named institution to return them to their homes for the two separate morning and afternoon runs Names and addresses of additional patients and times for their pickups were received by radio call to the van during the course of the day and added to the list of pa- tients pickups and deliveries by the driver Concepcion testified credibly that he called the office each day as he started out on his morning run, and that based on these calls and others he made during the day there was rarely any break in his assigned work during the course of the full daily driving schedule Normally, the drivers kept the vans overnight at their homes, and only came to the office to receive their pay weekly or for other special reasons The workdays were long, including 2- to 3-hour morning and afternoon runs to deliver patients, as well as additional time starting 2 to 3 hours after the last patient delivery to the institution for each run to take the group of patients home A number of the daily work schedules for Concepcion introduced into evidence include a print- ed note at the bottom that the driver must assist in taking patients home between 10 a m and the end of the day Monday, Wednesday, and Friday schedules were the same as were separate Tuesday, Thursday, and Saturday schedules, reflecting the three-time weekly treatments scheduled for dialysis and other chronically disabled out- patients All of the time spent driving for Respondent, including that in excess of 8 hours daily or 40 hours 7 All dates referred to, unless otherwise noted, shall be for the year 1982 weekly, was compensated at the same regular hourly rates 8 At the time of his employment Concepcion was told by the dispatcher, Ronnie Leggier°, he would be work- ing a 40-hour week for $175 By his second day of em- ployment, Concepcion told Andriani he could not work these long hours and that he could not take it anymore Andriani replied that everyone there works between 70 and 80 hours a week and that is why they were trying to organize a union and that he would speak to Ronnie about it That night, Concepcion received a call from Leggier° to come in to the office the following morning, that they had something to discuss The next morning, Concepcion reported to the office, and in the presence of Andriam told Leggier° about his displeasure with the long hours Leggier° pulled out his cabinet, showed him about 60 employment applications and told him that he "got [sic] plenty of drivers that will work those hours and if he didn't like it to quit" Con- cepcion replied he could not afford to quit, he needed the job Thereafter, Concepcion discussed the long hours and other working conditions with the other drivers when he met them during the course of the day at the Queens Di- alysis Center Concepcion mentioned that maybe he could find out about getting in contact with a union Through a friend, he obtained the telephone number for the offices of the Union located in Ozone Park, Queens, New York On September 27, Concepcion spoke to a Mr Sergio at the Union, who referred him to Mike Luciano, a busi- ness representative Concepcion then reached Luciano by telephone and told him that the employees were trying to organize a union and they needed someone to represent them and show them how to go about it Ar- rangements were then made to meet later that day at the QDC At 7 30 p m they met in Luciano's van parked in front of the QDC Concepcion said they were working longer hours and they needed uniforms and a 40-hour week and time and a half over 40 hours Luciano gave Concepcion a batch of union designation cards to hand out to employees According to Concepcion, the following day, Septem- ber 28, he had the drivers sign the cards He started the solicitation in front of the emergency entrance to Beth Israel Hospital In the presence of Pat Andriani he had about four or five cards signed by drivers as they arrived to pick up passengers who had completed their treat- ments Concepcion also signed a card at this time Later in the day, at around 4 30 or 5 p m when he arrived at the Queens Dialysis Center he gave out another four or five cards In all, he approached 11 drivers and 9 signed cards After completion of his work, on the evening of 8 Dr Smra explained that because of a problem in computing daily work hours for drivers, given their downtime between runs and pickups, Respondent initially determined to pay them on the basis of 8 hours work on a 10 hour period and to pay overtime at straight hourly pay After incorporation, Respondent decided to pay all work in the sixth day in a workweek at time and a half Dr Spira was unclear whether during Concepcion s September 1982 employment Respondent had yet made the decision regarding time and a half for the sixth day 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 28, Concepcion took the signed cards to the union office. Concepcion next testified about the events on Septem- ber 30, which he claimed was both the day on which he was paid and fired. About 10:30 or 11 a.m., he went to the office to pick up his check for the previous week ending on Saturday Present were Leggiero, the dis- patcher, Dr. Spira and the secretary whose name he did not know. When he received his check, Concepcion told Dr. Spira he was missing pay for 21 hours. Dr. Spira told him those 21 hours would always be held back. Concepcion then left. While in his van on the way to cash his check, Concepcion received a radio call to return to the office—only 5 minutes had elapsed. On his return he found Leggiero, Dr. Spira, and the secretary still in the office. Leggier° told him to hand in the keys and park the van. Concepcion asked him why. Dr. Spiro responded that they did not steal anything from anybody and if Concepcion had anything coming to him that they would give it to him; that it had come to his attention that Concepcion had been complaining about long hours and short pay; and that he had received a phone call from the head nurse at QDC that Concep- cion was complaining to her about the long hours and short pay If he had anything to complain about he should complain to himself or Ronnie. Then he added that it had come to his attention that Concepcion and Ron, another one of the drivers, had contacted the Union and that they were trying to organize a union and that he could not afford to have people like Concepcion in his company and he could no longer use Concepcion's services and anyone else he would find out was organiz- ing a union he would get rid of him. Concepcion told Dr. Spira that they should verify this phone call that he got from the head nurse at QDC. Dr. Spira told Concepcion he had no time for it, that he will leave it at that, he could no longer use Concepcion's services. Concepcion then left. Before completing his direct examination, Concepcion acknowledged that he had been questioned by Leggiero on a Friday or Saturday as to why he did not show up for the late pickup of patients at QDC the prior evening. Concepcion replied he had showed up but a driver named Stuie who was there told him that he, Stuie, had that night run and he could go home, so, Concepcion left. Concepcion added that Stuie was a friend of the dis- patcher. Concepcion also commented that on the same day Leggiero had also spoken to him about the fact that they needed the van on a day Concepcion had been off from work and that they could not find it at his home parking lot. Concepcion had replied that the van was parked there and Leggiero had not told him the night before that he needed the van for the next day. On cross-examination, Concepcion testified he had been asked to turn his daily work schedules in to the office following their use after he had complained about the long hours. Another result of his complaint was that Leggiero gave him a day off—the day on which Leg- gier° could not locate or use the van assigned to him. Concepcion asserted, and Respondent did not deny or offer any contrary evidence by way of a work schedule or otherwise, that although he had been granted time off he had to work the evening shift that day Concepcion also denied he had been given any special instructions about making the van available that day. He also said that after he had the problem with Leggier° about pick- ing up QDC patients late at night 9 he told Leggier° that Leggiero should jot that down on the schedule. This conversation resulted in the printed note at the bottom of the schedule. According to Concepcion, even before his conversation with Leggiero, he and the other drivers always stopped at QDC after delivering patients in the late afternoon to make sure nobody (no patient) was left behind without transportation home. For the first time, on cross-examination, Concepcion expressed some doubt that the had been given his pay and discharged on September 30, when informed that the payday, always a Wednesday, was September 29. Yet, when he later testified on rebuttal, Concepcion now re- called more clearly that he had received his pay and been discharged on September 30. Having worked until 3 a.m. on September 28," he had been given permission to start late on September 29, had not come to the office by 10:30 or 11 a.m., when the pay was distributed, did not have time to do so later and, thus, had not picked it up untill the following day. The date of Concepcion's discharge took an added sig- nificance at the hearing held on April 4, because at the original close of the record on that day no documentary evidence had been offered by the General Counsel to corroborated Concepcion's testimony that he had solicit- ed employees to sign union designation cards on Septem- ber 28. The only card received in evidence had been that of employee Angel Soto and it was dated September 29 and had been given to him to sign early that afternoon. Thus, if Respondent was correct that Concepcion had been discharged late in the morning of September 29, this solicitation, among others to which Soto referred, had all taken place after Concepcion's discharge, and so could not possibly have formed any basis for his termina- tion." As earlier noted, after the close of the hearing on April 4, 1983, Respondent moved to make a document part of the record, if necessary, reopening the record for the purpose. The document was the canceled check Con- cepcion had received on the day of his discharge Having received the General Counsel's response oppos- ing the acceptance of the additional evidence without a reopening of the record, but not opposing a reopening if allowed to respond to the evidence with its own evi- dence, I issued an order reopening the hearing for the 9 In addition to informing Leggier° that Stine said he would do the run that night, Concepcion now added he had told Leggier° he had com- pleted a 12-hour day before going to QDC and having the conversation with Stine " Concepcion's work schedule for September 29 shows that he dropped off his last patient at 1 a m Concepcion testified that as this pa- tient lived in an outlying area of Queens (Far Rockaway), distant from his lower Manhattan residence, It took him considerable time to drive home afterward " Whether or not Concepcion engaged in protected concerted activity in protesting Respondent's hours and wages to a third party and whether Respondent relied on that conduct in finng Concepcion are matters which will be dealt with subsequently AMERICAN MEDICAL TRANSPORT 289 limited purpose of receiving into evidence the proffered document, as well as any responsive evidence which the General Counsel was prepared to offer relating to the document At the reopened hearing held on June 29, 1983, the canceled check was received in evidence It was dated June 29, was made payable to Lino Concepcion, drawn on the account of Respondent maintained at the Hudson United Bank, Union City, New Jersey, 12 and signed on its face by Dr Spira On its reverse side, Concepcion had endorsed the check and it had been stamped paid by a check cashing service on September 29 and also bore the stamp of the bank (and the date September 29) to which the service had in turn endorsed the check 13 The General Counsel then offered its own responsive evidence Over Respondent's objection," the General Counsel offered the limited testimony of Concepcion au- thenticating the signatures and date of signing of three union designation cards, one he himself had signed and two of which he had distributed to other employees, all before the date of his discharge Concepcion signed his own card in the presence of Andriani and a couple of other drivers at the emergency entrance to Beth Israel Hospital, on September 28 15 Two other cards handed out to employees by Concepcion on the same date at the same location and signed, dated, and immediately re- turned to him on September 28 were also received in evidence The employees who signed them were Angel Luis Irizary and Patrick Andriani Undergoing cross-examination on April 4, 1983, Con- cepcion finally acknowledged his confusion about dates and that he could been discharged on Wednesday, Sep- tember 29 He also asserted, consistent with his earlier testimony, that there were more than the five cards now in evidence which he had employees sign on either Sep- tember 28 or 29 Two witnesses testified for Respondent Ronald Leg- gier° testified he had been head dispatcher and office " The out of state bank from which Respondent leases its vehicles 13 Aside from this Independent evidence of Concepcion's receipt of pay and discharge on September 29, the parties had also offered into evi dence on April 4 1983, as a Joint Exhibit Respondent s payroll records covering the weeks in which Concepcion had been employed They show for the week ending October 4, the week in which he was dis charged, that Concepcion received gross pay of $71 75 At his listed hourly rate of $3 50, this pay represented 20 5 hours of work As these hours would have probably comprised 2 days of work, rather than 3, the payroll record already provided evidence corroborative of Respondent s contention that Concepcion was paid off and fired on Wednesday, Sep tember 29, rather than Thursday, September 30 14 Since Respondent had now submitted evidence establishing beyond any doubt the date of Concepcion s discharge, and since that date is sig nificant only Insofar as it relates to the timing of Concepcion s Sec 7 ac willies which could have come to Respondent's attention prior to his dis charge, I ruled that evidence relating to the timing of such activity in relation to the newly fixed date of discharge was permissible responsive evidence under my order reopening the record " In this connection, the General Counsel's having moved to correct transcript in three respects, including Concepcion s initial testimony as to the date he signed his card, and Respondent having filed no opposition thereto, the motion is granted and the original and a copy of the motion have been Included with the record in this proceeding for transmittal to the Board The card itself bears Concepcion's own handwriting showing the date as September 28 On cross examination, Concepcion testified that all three cards—his own and the two others received in evidence on April 4, 1983—were dated and signed on September 28 manager from June 12, 1982, to January 21, 1983, when he left voluntarily for another position He dispatched the drivers and made sure they were all on duty in the morning, coming in himself at 6 a m to make sure pa- tients were being picked up He ran the whole operation, prepared payroll, answered the phone, and handled com- plaints, hiring, and firing It was he who prepared the daily schedules a week in advance for the 6 workdays (excluding Sunday) and got them to the drivers and kept the records on their hours and attendance Leggier° ac- knowledged that the drivers kept the vehicles at their homes overnight because Respondent had no facility to park them When drivers first came to work, Leggier° went over the work rules prohibiting use of the vehicle for the driver's personal use and taking on extra passengers that do not pertain to the Company or patients because the insurance did not cover such use It was Leggiero's testi- mony also that on days a driver had permission to take off because work was slow or because he was prepared to honor a driver's request, the driver was instructed to bring the van in so the Company could employ a part- timer to do the run Leggier° testified that on two occasions, a Tuesday and Thursday in the same week, Concepcion had failed to show up for the night shift and some patients at the QDC did not get home until 2 or 2 30 a m When he spoke to Concepcion about it, Concepcion said that Stuart told him he could go home at 7 or 8 p m Leg- gier° spoke to Stuart who said he never told Concepcion anything When he confronted Concepcion again, Con- cepcion continued to maintain Stuart said he could go home Again, on the Thursday following the Tuesday, Concepcion failed to take patients home on the late evening shift However, before learning about this second incident, Concepcion called that Thursday evening to ask for the next day off 16 Leggier° readily agreed he could and said he would get somebody to take Concepcion's place but he needed the van and to bring the van in The next day, Friday, Concepcion had not brought the van in, so Leggier° went looking for it around 9 30 a m, checking garages at his apartment complex but did not go to his apartment The van was needed for 11 a m pickups Later, around 1 or 2 p m, he called Concep- cion's house, spoke to his wife who did not know where the van was, learned that Concepcion was at his sister's house and was given a street location but not an address Leggier° went looking for him but could not find him The next day, Saturday, when he spoke to Concepcion about it, Concepcion said he had left a note on his apart- ment door for Pat to pick up the van Leggier° said when he asked Pat Andriani if he had gone up there, Pat said he did not see any note, he did not know anything about it According to Leggier°, on September 29, Concepcion came in, Leggier° gave him his paycheck and spoke to him again about being ,discourteous to the patients at the 16 These events all took place in Concepcion's second week of em ployment commencing Monday, September 20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD center (QDC) and let it go at that. Leggiero said "let's not let it happen again" because he had complaints about it before. After Concepcion had left to cash his check and start work, Leggiero received a call from Lucille at the Queens Dialysis Center 1 7 saying that one of his driv- ers who was at the Center the night before was discour- teous to the patients and a couple of people had com- plaints that he was driving too fast. When Leggiero was given the description of this driver, it fit only one cur- rent employee, Concepcion. At this point, Leggiero called Concepcion back into the office and told him "Look, I've had it. We can't run this business—you are ruining our business by all of these complaints that I have about you." As Leggier° put it, "Just one thing led to another and I just let him go." Leggiero denied he said anything about a union during this interview. As to who was present, Leggier° thought maybe just the secretary was the only other person in the office at the time. Shortly afterward, Leggiero testified that the basis for Concepcion's discharge was because of the complaints building up, the time with the van, and the two times that he did not show up at night.' 8 Leggier° then noted Concepcion was not the first one he had to let go, but was not asked and did not identify the other employees, the dates, or the circumstances of their discharges. On cross-examination, for the first time, Leggier° placed Dr. Spira with him and possibly the secretary in the office when he gave the pay to Concepcion. He also testified that the reason he gave Concepcion for his being fired was because of the complaint he had just gotten on the phone from Lucille Fostal from QDC. Later, when Concepcion returned and was fired, Dr. Spira was not present, and had probably gone to lunch. Dr. Spira testified that although he does not practice medicine for health reasons, he has only a very slight in- volvement in the day-to-day operations of Respondent, which are run by the office manager and secretary. He signs the checks and is available in an overseeing capac- ity. Dr. Spiro denied that he had anything to do with Concepcion's discharge. On the day of the discharge, Concepcion approached Dr Spira outside the office and told him he had just been fired. He asked if he could see Dr. Spira. He wanted to know why he had been fired. Dr. Spira re- plied that Ron did the hiring and firing and he was sure there was a very good reason. In fact, Dr. Spira said he knew some of the reasons from the previous week. He was referring to the fact 'that Concepcion did not show up for work on two separate occasions at night. As Dr. Spira explained it, if a van did not pick up the patients at night it created a 'tremendous problem. Since Respond- ent's office was closed at night, there was no one to whom the patients could turn if they were not being " Later identified as Lucille Fostal, the person in charge of transpor- tation of QDC patients who communicated with Leggiero on any prob- lems which arose at the Center over Respondent's transportation serv- ices 18 This testimony was preceded by a leading question posed by Re- spondent's counsel, on which objection was sustained, in which Leggier° was asked whether the basis of the discharge was the incidents enumer- ated picked up and there was, thus, no way Respondent could help the patient by supervising or arranging for the pickup. Everything depended on the reliability of the drivers.' 9 Then, while being cross-examined, Dr. Spira disclosed that he had been consulted by Leggiero when Concep- cion did not show up to the Queens Dialysis Center in the evening. At the time, he told the office manager "You've got to make it very clear to Mr. Concepcion that if he does this he's not going to work here any longer because we are totally dependent on the people who go there at night." Dr. Spira also denied that he mentioned anything about a union in this conversation with Concepcion or in talks with any other employees or that he had any knowledge of union activity on the part of any of his employees until he received, around October 5, or 6, the petition filed on September 30 by the Union in Case 2- RC-19413. During his cross-examination, Dr. Spira acknowledged that in order to pay Concepcion for the work performed in the current week in which he was discharged, which pay was held from the regular paycheck he received on the morning of September 29, he would have called the company that issues the checks, provided them with the gross amount, obtained a net figure, and written out and signed a completed check. 2° Dr. Spira also testified that he believed that Concepcion received payment for those workdays in his last week on the day he was discharged. Subsequently, while being examined at the reopened hearing, Dr. Spira testified that he did not recall whether he was present in the office when Concepcion received his paycheck for the prior week late in the morning on Wednesday, September 29. Dr. Spira also believed that none of his competitors in the field of medical patient transportation were then unionized. Analysis The credibility issue posed by the diametrically op- posed testimony of Respondent witnesses on the one hand, and Concepcion on the other, with respect to the events which took place on September 29, is central to the ultimate determination of the issues of the alleged threat and discriminatory discharge. Viewing Concepcion's testimony alone, without weighing it against Leggiero's and Spira's, the inaccura- cy of his recollection of dates and related data is trou- bling and continues to linger, even after the total record is studied. It is apparent that Concepcion's firm belief in his discharge as having taken place on Thursday, Sep- tember 30, not only influenced the General Counsel to allege that date in the complaint and to reaffirm it during the hearing held on April 4, 1983, but also led to Con- cepcion's somewhat strained explanation given on rebut- 19 Later, while under cross-examination, Dr Spira explained that the Queens Dialysis Center reduced its business with Respondent effective in January 1983, because there were too many instances of patients not being picked up, patients being picked up late; and rudeness to patients 20 This was the check for $71 75 which Concepcion received during his exit interview on his return to the office on September 29 AMERICAN MEDICAL TRANSPORT 291 tal as to why he did not get paid until Thursday (and therefore was not fired until that date) Even after being confronted with the fact of his en- dorsing the paycheck on Wednesday, September 29, at the reopened hearing, Concepcion, although admitting some confusion, still clung to a belief, shaken to be sure, that he had been fired on September 30 What is odd about this tenacity is that it was not the only date consistent with his discharge having taken place after having engaged in union activity Yet, the General Counsel did not offer designation cards, includ- ing Concepcion's own card, evidencing such activity, until the reopened hearing The three cards signed on September 28 are nonethe- less consistent with Concepcion's own narrative as to the chronology of his union involvement He made a call to the Union on Monday, September 27, got hold of the proper union agent later that day, and arranged to and did meet with him later in the evening of the same day in front of the QDC It was at this time that Concepcion was given the batch of designation cards, which he com- menced distributing on the following day, Tuesday, Sep- tember 28, and continued to distribute on September 29 after his discharge, which occurred around noon on that day Concepcion's testimony about signing his own card and soliciting and witnessing the signatures of the two other employees on September 28 and authenticating all three was firm and unshaken The cards themselves bear proof that they were not tampered with after the issue of the timing of Concepcion's discharge in relation to his protected activity arose in this proceeding and before their introduction, since each of the three contains a date stamp showing their receipt by Region 2 of the Board on September 30, 1982, another fact consistent with Con- cepcion's recollection of when he delivered the signed cards to the union office and when the Union's petition in Case 2-RC-19413 was filed (September 30) Thus, regardless of Concepcion's seemingly irrational and erroneous recollection of the date of his discharge, the independent evidence shows his engagement in open union activity in the days immediately prior to the actual date of his discharge When this evidence is coupled with his testimony as to his conversations with Respond- ent's office manager and president on the date of his firing, the General Counsel has made a prima facie show- ing sufficient to support the inference that protected con- duct was a motivating factor in Respondent's decision to fire him A close examination of Concepcion's testimony as to these conversations, both on direct and cross examina- tion, show a detailed, consistent, forthright presentation which bears the mark of believability At the first con- versation on September 29, Concepcion complains unsuc- cessfully about a holdback in his pay and leaves with check in hand After an intervening telephone call to Re- spondent's manager from a functionary at the Queens Di- alysis Center, he is immediately called back and summar- ily discharged On his return to the office, Dr Spiro first denies in a defensive manner that Respondent had taken anything from him and that he will get everything in pay he is entitled to Dr Spira then discloses the information he had just received over the phone It contains two main points The first is evidence that Concepcion is complaining about long hours and short pay to a repre- sentative of the institution on which Respondent relies for a substantial portion of its service business As to the first, Dr Spira refuses Concepcion's request to verify this information he had received second hand from Leg- gier° with the source itself The second is evidence that Concepcion, with another employee, was seeking to or- ganize a union at the premises Coupling this knowledge of Concepcion's union activity with the outright state- ment that he could not afford to have people like Con- cepcion in his company, Dr Spiro abruptly informs Con- cepcion he can no longer use his services and advises him that anyone else engaging in like activity will be treated in a similar manner Apart from the conversations themselves, Concep- cion's testimony relating the facts of his organizing activ- ity was presented without exaggeration Thus, at no point did Concepcion claim that either Leggiero or Dr Spiro saw him handing out cards or soliciting employee signatures His initial meeting with the union delegate took place inside a parked van Neither did Concepcion accuse Pat Adriani of passing on information about his activities, although it was Adriani who told Concepcion he would pass along his complaints about work hours and salary to Leggier° and he, in fact, did so Given the highly competitive and unorganized indus- try in which Respondent operates, the relatively informal and flexible nature of the business relationships estab- lished between medical institution and transportation service entrepeneurs which are subject to termination on very short notice, and the fact that employee salaries and related benefits constitute one area of business costs over which the Company has some degree of control, Con- cepcion's narrative of the nature of Dr Spira's immedi- ate reaction to his organizing activity, without benefit of advice of counse1, 21 has about it the the ring of truth As against Concepcion's narrative, Leggiero's and Dr Spira's denials and explanations for the discharge lack credibility Leggier° claims he brought a certain com- plaint to Concepcion's attention "again" the morning of September 29 Yet, he failed to show that he had warned or complained to Concepcion about discourtesy on any prior occasion Of greater significance is the fact that Concepcion's conduct in the prior week warranted im- mediate discharge and yet Respondent took no action against him until Concepcion had solicited all drivers in a union campaign compressed into the 2 days preceding his discharge Concepcion failed to pick up patients late in the evening twice, and failed to make his van available for Respondent's use on his day off While Leggiero was only aware of the first failure to work late when he au- thorized the day off, it seems odd that an employee who exhibited some unreliability and, in addition, had a histo- ry of being discourteous to patients he did pick up and deliver should have been rewarded with a day off from 21 Respondent offered no evidence showing that Dr Spira or anyone else on its behalf consulted counsel with respect to the union drive at any time prior to the filing of the RC petition, which It received on October 5 or 6 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work with pay 22 When Concepcion's unreliability was demonstrated again by his failure to pick up patients Thursday evening, September 23, and his failure to make his van available on his day off on Friday, September 24, his conduct was such that an employer concerned about continued good relations with institutional clients who could at any moment cease to honor a purchase order or make telephone requests and switch allegiance to another supplier of transportation services would see to it that it could never happen again Yet, Respondent continued to tolerate Concepcion's misconduct, without ever warning him about the economic or other adverse consequences of his unreliability, through the following workdays of Saturday, Monday, and Tuesday, September 25, 27, and 28 Even when Concepcion was finally let go, Leggiero's final testimony was that he was only told about the com- plaint just received from Lucille Fostal, and not his prior acts of unreliability Dr Spiro, for his part, vacillated as to whether he was present when Concepcion received his first paycheck, and as to whether he had any involvement in the dis- charge On the one hand, he denied any role, on the other hand, he admitted to having prior knowledge of Concepcion's misconduct of the past week in a postdis- charge conversation with Concepcion, and, later, while being cross-examined, admitted having been consulted about Concepcion's late evening absence from driving duties and having advised that a strongly worded warn- ing be given to him which no Respondent witness testi- fied was ever delivered Since Dr Spira finally could not recall, and thus did not dispute, Concepcion placing him in the office when he received his first paycheck on September 29, Dr Spira could not, and did not, dispute Leggtero's testimo- ny that on that occasion the only matter raised con- cerned Concepcion's discourtesy and fast driving Final- ly, the evidence strongly suggests that Dr Spira knew and approved of the decision made immediately after- ward to fire Concepcion, since only he could arrange to obtain the figure representing Concepcion's gross pay and deductions for work performed earlier during the week, and only he could issue and sign the second pay- check Concepcion received at his firing representing the pay for that period The record is thus left with only one logical explana- tion for Concepcion's discharge which squares with Re- spondent's extreme tolerance for serious prior miscon- duct, and its precipitate decision to fire him for alleged infractions for which no prior warning has been estab- lished and which lack the weight and seriousness of Con- cepcion's unreliability That explanation is the interven- ing event of Concepcion's organizational activity which commenced on the morning of Tuesday, September 28, and which took place at the sites of both institutional cli- ents of Respondent Since the evidence establishes that although Respondent had adequate nondiscriminatory " In the week ending September 25, 1982, Concepcion is shown on Respondent s payroll as having worked regular hours totaling 49 hours for the week and receiving gross pay of $175 Yet, a separate record of hours worked by day which Leggier° maintained shows clearly that Concepcion had Friday, September 24, off The exhibit also contains the notation that the car was missing that day grounds to fire Concepcion, it chose not to do so until his protected concerted activity impelled it to act, Re- spondent cannot overcome the General Counsel's case by showing that it would have fired him even if he had not involved with the Union Transportation Management Corp, 462 U S 393 (1983) Based on the foregoing, I conclude that Respondent, by its president Dr Ian Albert Spiro, in an exit interview with Lino Concepcion held on September 29, 1982, threatened to discharge any employees who engaged in activities on behalf of the Union in violation of Section 8(a)(1) of the Act, and discharged Concepcion because he joined, supported, or assisted the Union in violation of Section 8(a)(1) and (3) of the Act Contrary to the urging of the General Counsel, I also conclude that by referring to Concepcion's protests critical of Respond- ent's wage and hour practice made to a third party, even if forming a part of the motivation for Concepcion's dis- charge, Respondent's president, on behalf of Respondent, did not thereby engage in conduct independently viola- tive of Section 8(a)(1) of the Act In light of the Board's recent decision in Myers Industries, 268 NLRB 493 (1984), overruling Alleluia Cushion Co, 221 NLRB 999 (1979), and its progeny, including Air Surrey Corp, 229 NLRB 1064 (1977), enf denied 601 F 2d 256 (6th Cir 1979), 23 on which the General Counsel relied in its brief filed prior to the issuance of Myers Industries and where the Board had found protected an individual employee's inquiry to the employer's bank as to whether sufficient funds were on deposit to meet its upcoming payroll, there is insufficient record evidence to show that Con- cepcion's conduct of protesting terms and conditions of employment to a customer's representative was protected concerted activity within the meaning of Section 7 of the Act As President Spira's statement referred only to Concepcion's complaints to Lucille Fostal, there is insuf- ficient evidence to find that Dr Spira either was aware of Concepcion s earlier complaint about wages and hours made to Andriani and reported to Leggiero, or if he was aware, that the earlier complaint played any part in Dr Spira's decision to discharge him, or indeed, that Leg- giero's knowledge of the earlier complaint encompassed any understanding that Concepcion had been involved thereafter in the concerted activity of discussing the un- satisfactory wages and hours with other employees CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 By threatening an employee that it would discharge any employees who engaged in activities on behalf of the Union and by discharging employee Lino Concepcion on September 29, 1982, Respondent violated Section 8(a)(3) and (1) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act 23 See Meyers Industries 268 NLRB at 494 AMERICAN MEDICAL TRANSPORT 293 5 Respondent has not engaged in an independent vio- lation of Section 8(a)(1) of the Act by its discharge of Lino Concepcion 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 take certain af- firmative action designed to effectuate the policies of the Act Having found that Respondent discharged Lino Con- cepcion in violation of Section 8(a)(3) and (1) of the Act, I recommend that Respondent be ordered to reinstate him to his former position or, if no longer available, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings or other monetary loss he may have suffered as a result of the discrimination against him, less interim earnings, if any The backpay shall be computed in the manner set forth in F W Wool- worth Go, 90 NLRB 289 (1950), with interest to be com- puted in the manner described in Florida Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Go, 139 NLRB 716 (1962), enf denied on other grounds 332 F 2d 913 (9th Cir 1963) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed24 ORDER The Respondent, American Medical Transport, Inc , New York, New York, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Threatening, discharging, or otherwise discriminat- ing against employees in regard to their hire, tenure of employment, or other terms and conditions of employ- ment in order to discourage membership in or assistance to Division 1181-1061 Amalgamated Transit Union, or any other labor organization 24 If no exceptions are filed as proved 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 (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist Divi- sion 1181-1061 Amalgamated Transit Union, or any other labor organization, to bargain collectively through that union or any other labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities Take the following affirmative action which is neces- sary to effectuate the policies of the Act (a) Offer to Lino Concepcion immediate and full rein- statement to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges, and make him whole in the manner 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 payments 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 (c) Post at its New York, New York facility, copies of the attached notice marked "Appendix " 25 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by Respondent's authorized representative, shall be posted by Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges that Respondent independent- ly violated Section 8(a)(1) of the Act by its discharge of Lino Concepcion 25 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading Posted by Order of the Na bona' Labor Relations Board' shall read 'Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board