City Wide Ambulette, Inc

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD City Wide Invalid Service, Inc a/k/a City Wide Ambulette, Inc and Local 531, International Brotherhood of Teamsters, Chauffeurs, Ware housemen and Helpers of America Case 2-CA- 19869 22 October 1984 the complaint alleges various acts of independent viola lions of Section 8(a)(1) of the Act On the entire record including my observation 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 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 29 June 1984 Administrative Law Judge Edwin H Bennett issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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,' and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent City Wide Invalid Service Inc , a/k/a City Wide Ambulette, Inc New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order 1 The Respondent has excepted to some of the judge s credibility find nip 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 Or 1951) We have carefully examined the record and find no basis for reversing the findings DECISION STATEMENT OF THE CASE EDWIN H BENNETT Administrative Law Judge This proceeding was heard in New York New York on April 9 and 10 1984 on a complaint and notice of hear ing which had issued on October 28 1983 The unfair labor practice charge which led to the complaint had been filed by Local 531 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America (Union) on September 8 1983 The substance of the complaint is that City Wide Invalid Service Inc a/k/a City Wide Ambulette Inc (Respondent or Em ployer) unlawfully refused to meet and bargain with the Union since about August 15 1983 and unlawfully dis charged Peter Green about July 11 1983 In addition I JURISDICTION The Employer incorporated under New York law maintains its office and place of business in the city and State of New York where it is and has been engaged in the transportation of physically handicapped passengers and school children to and from medical offices and hos pitals In the course and conduct of its business oper ations the Employer annually provides services valued in excess of $50 000 for other enterprises within the State of New York including Metropolitan Hospital which enterprise itself is engaged directly in interstate com merce with a dollar volume of business sufficient to satis fy a Board standard for the assertion of junsdiction ex clusive of an indirect outflow or inflow standard The Employer admits that it is an employer engaged in corn merce within the meaning of Section 2(2) (6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act and I so find II THE UNFAIR LABOR PRACTICES The Employer was organized in 1975 by Arnold Boyce who was the principal owner and its chief operat ing officer He was assisted by his wife Ruby and by a daughter Valerie Boyce Roseburgh all of whom served as the board of directors Starting in 1980 Valerie devot ed herself full time to the affairs of the corporation In September of that year she assumed the office of presi dent and secretary while Arnold and Ruby s time and efforts declined Arnold s health became an increasingly serious problem (he suffered from blindness diabetes heart kidney and prostate ailments) resulting in an ever decreasing ability to physically attend to the business Between the summer of 1982 and Arnold s death in Oc tober 1983 he spent a total of 3 or 4 months in the hos pital and could attend the office no more than once a week often staying away weeks at a time Valerie had full authority to manage the day to day operation of the business Thus she signed rent and other checks paid bills executed the only commercial contract entered into by Respondent after 1981 (an agreement to provide transportation services for Washington Heights Mental Center) and assigned and scheduled all work She did however consult with her father either in the hospital or at home and obtained approval from him or from her mother for some business decisions In January 1983 1 the Respondent employed six or seven ambulette and van drivers and attendants includ mg driver Peter Green In that month Green contacted the Union for the purpose of obtaining representation ' Unless otherwise indicated all dates hereinafter are in 1983 272 NLRB No 131 CITY WIDE AMBULETTE INC 883 and was given authorization cards for distribution to his fellow employees In the succeeding months he success fully solicited signed cards from the other employees which cards either were returned directly to the Union or to Green who then forwarded them to the Union On May 20 the Union filed a petition for Certification of Representative in Case 2-RC-19545 listing the bar gaining unit as consisting of six drivers On May 31 the parties signed a Stipulation for Certification Upon Con sent Election pursuant to which an election was conduct ed on June 21 which was won by the Union On June 29 a Certification of Representative was issued to the Union as the exclusive collective bargaining representa tive for all of Respondent s full time and regular part time drivers and attendants A The Refusal to Bargain On July 12 Louis DeAngelis the Union s president wrote to Respondent requesting a meeting to commence negotiations Respondent did not reply so shortly there after DeAngelis telephoned Valerie Boyce and arranged for a meeting which was held on August 9 attended by Boyce DeAngelis and several other union representa tives According to the credited and underned testimony of DeAngelis he made several economic proposals for inclusion in a collective bargaining agreement Boyce re plied that she was present only to listen to the Union s proposals and not to negotiate She would she said re spond to the Union in the future In addition the subject matter of Green s discharge on July 11 was raised by the Union and DeAngelis asked for an explanation so that the Union could consider whether or not to file a gnev ance on Green s behalf Again Boyce promised that a de tailed response would be forthcoming 4 By August 15 Respondent had not replied to the Union or made any effort to contact it Therefore on that date the Union mailed Respondent a proposed col lective bargaining agreement and suggested that the par ties meet on August 30 Boyce also was requested to verify the meeting and to raise any questions it wished concerning the proposals Respondent made no reply to this letter nor to DeAngelis several telephone calls made in an effort to reach Boyce Finally on September 7 DeAngelis again wrote to Valerie Boyce He recount ed the attempts of the Union to elicit a response to its bargaining demands He noted that messages had been left with her office on numerous occasions and that no reply to the Union had been made He reminded her that his request for information concerning the discharge of Green had been ignored DeAngelis wrote that in view of the seeming unwillingness to acknowledge the pres ence of the Union unfair labor practice charges would be filed regarding Green s discharge and the refusal to bargain The letter concluded by inviting Respondent to contact the Union to discuss any of the matters referred to therein DeAngelis testified credibly and again without denial that between the August 15 letter and December he placed approximately 11 telephone calls to Respondent asking to speak to Boyce none of which were returned On February 22 1984 DeAngelis again wrote to Valerie Boyce proposing four specific dates for meetings in the month of March 1984 and expressing the hope that not withstanding the pendency of the charge she would make a positive response However as with all previous overtures for meetings this request similarly was ignored by Respondent It is undisputed that as of the date of the hearing Re spondent at no time made any response whatsoever to the Union s numerous requests to meet and bargain a col lective bargaining agreement Indeed at no time did Re spondent so much as hint to the Union any explanation for its refusal to meet with it to furnish information re garding Green s discharge or to return a single phone call In its answer and brief Respondent states that it failed to meet and bargain because Arnold Boyce was seriously ill and that Valerie Boyce could not bind Respondent without his authonty At the hearing however Valerie Boyce who appeared as Respondent s witness was not questioned about nor did she offer evidence to support the assertion that her authority to bargain was limited Nor did she explain why as president and secretary of the corporation she lacked such authority Further there is not the slightest bit of evidence as to what ef forts if any were made to secure Arnold Boyce s au thonzation and his reaction thereto The record also is quite clear that Valerie Boyce s lack of authority as an impediment to bargaining never was communicated to the Union In addition Respondent failed to explain Ms Boyce s broken promises to consid er the Union s demands and reply to them The record similarly is silent as to why Arnold Boyce was unable to grant whatever authority or approval his daughter re quired notwithstanding his ill health For as discussed below he was quite capable of communicating his an tiunion sentiments to Peter Green and of acting decisive ly in discharging Green because of his union activities Finally Respondent offered no explanation at the hear ing in its answer or in its brief for its continued failure to meet with the Union following the death of Arnold Boyce in October 1983 On the other hand the record affirmatively demon strates as noted above that Valerie Boyce not only held the titles of president and secretary of the corporation but gave every indication of acting within the scope of the authority normally associated with those titles Addi tionally in December 1982 Arnold Boyce held a meet ing with the drivers and told them Valerie was in charge and that they must take their orders from her This meet ing apparently vlias occasioned by the drivers having balked at accepting her directives After the meeting however her orders were unquestioned B The Discharge of Peter Green Green was employed as an ambulette driver from July 1975 to the date of his discharge July 11 1983 He was the most senior of six such drivers at the time of dis charge Valerie Boyce conceded that she was satisfied with his performance on the job He had an unblemished work record there being no evidence of employer corn plaints reprimands or dissatisfaction of any sort He ap pears to have been the only driver who was a recipient 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a letter of commendation from any patient In Decem ber 1982 a patient wrote the Employer praising Green for his courteousness and his driving capability In January 1983 Green determined that unionization would be beneficial to the drivers and it was he who contacted the Union for the purpose of organizing the employees As recited above Green was the inside union organizer and the only employee active in the organizing campaign which led to issuance of the Certification of Representatives on June 29 1983 According to Green s underned and credited testimo ny Valerie Boyce spoke to him about union activity on several occasions In March 1983 she called him into her office and spoke to him for 5 to 10 minutes Boyce said she heard that a union was organizing the drivers and wanted to know what Green knew about this union ac tivity Green replied that he had no knowledge of such activity About a month later again in Respondent s office she asked him if he had heard of a union repre sentative visiting the drivers at hospitals attempting to get them to join He replied he had heard of such activi ty Green also testified that following the election on June 21 he volunteered to Valerie Boyce that he voted against the Union Green did this because of a rumor that he had been identified as the union organizer On May 23 while dnving the van he was contacted on the two way radio by Valerie Boyce who instructed him to telephone Arnold Boyce at home In the ensuing phone conversation Arnold Boyce asked Green what he knew about the formation of a union to which Green re plied Nothing Boyce responded that if a union suc ceeded in organizing the drivers he would close the busi ness He also told Green he was going to fire the em ployee who was doing the organizing 2 About a week later Green and Arnold Boyce had another conversation concerning union activity at the Employer On this occa sion Green was driving Boyce to his home from the hospital which about that time was a fairly frequent oc currence Boyce again asked Green what he knew about the attempts to organize the men and Green again denied any knowledge of such union activity Boyce repeated his earlier statements about closing the business rather than deal with a union He explained to Green that he did not want any outsiders telling him how to run his company Boyce also restated the threat to fire the union organizer On July 1 Green left for a regularly scheduled vaca tion Valerie Boyce testified that very shortly thereafter her father told her he had decided to fire Green He dic tated a letter to Valerie which she typed and signed for 2 I received into evidence this and other conversations attributed to Arnold Boyce who was deceased at the time of the hearing over the objections of Respondent The Board has long ruled that such evidence can be considered although It is subject to very close and careful scruti ny The Board has cautioned that such evidence should not be relied on unless it is confirmed by clear and unambiguous evidence of a compelling nature Custom Coated Products 245 NLRB 33 35 (1979) Calandra Photo Inc 151 NLRB 660 669 (1965) Green s testimony regarding Arnold Boyce s remarks meets this stringent standard and 1 accord full credence to the testimony As discussed more fully below Arnold Boyce s remarks here are consistent with Respondent s entire course of conduct designed to evade its statutory obligations Arnold She dated it July 11 and mailed it to Green The letter reads as follows It is with regret that we have to inform you that we can no longer use your services for the above corn pany We have given serious consideration to all the the ramifications of your illnesses including diabe tes high blood pressure and periodic nose bleeds We have decided that it can be dangerous for you to continue driving under these conditions Also it is dangerous for the patients who are being trans ported and for pedestrians on the street We are sorry to make this decision but we are doing this in the best interest of everyone con cerned Arnold Boyce rarely was at work at this time and his health so poor that Respondent urges his physical Inca pacity as the excuse for not meeting with the Union Indeed we are asked to believe that his deteriorated state of health even precluded his being able to advise his daughter with respect to bargaining Nevertheless the decision to discharge Green was made solely by Arnold who did not so much as discuss the basis for this action with Valerie who as we have seen was then in charge of day to day operations Valerie Boyce s testi mony that she did discuss the discharge with her father is discredited as it conflicts directly with her pretrial affi davit and is inconsistent with her own testimony to the effect that her father was responsible for the decision Following receipt of the letter Green telephoned Val ene Boyce and asked her if he was being fired because of his union activities or health reasons Valerie declined an answer and referred him to Arnold Boyce Green telephoned Arnold Boyce and asked the same question Boyce replied abruptly that the decisision had been made and he refused to discuss it further We turn then to examine the facts with respect to Green s medical conditions relied on in the July 11 letter as the reasons for his discharge Green readily conceded that he was a diabetic and was afflicted at one time or another with hypertension back problems dizziness and nose bleeds Nose bleeding however assuming that it ever was a problem ceased to be a concern at all after July 1982 when the problem was medically corrected From that date on it could not and simply did not exist and there is not a shred of evidence to the contrary With respect to his diabetes that condition was present at the time he was hired and it was a matter known to Arnold Boyce from the inception of Green s employ ment Furthermore there is no evidence that Green s di abetes adversely affected his job performance and at least one other driver/attendant Dudley Jordan also is a dia bete He also is Arnold Boyce s brother in law As with his diabetes Green also was afflicted with hy pertension i e high blood pressure throughout his em ployment But again the record simply fails to disclose any nexus between this medical condition and a job problem of any kind Furthermore this condition was under medical supervision and control and if anything had been a source of concern to Respondent earlier in CITY-WIDE AMBULETTE, INC 885 Green's employment. Thus, in March 1978, Green sub- mitted a medical certificate to the effect that his hyper- tension and diabetes rendered him unemployable at that time. It appears, nevertheless, that he continued to work. In any event, however, in December 1978, a second medical certificate was produced, at the Employer's re- quest, attesting to the fact that both conditions had become stabilized and that he was progressing satisfacto- rily. There is not the slightest indication in the record that the Employer subsequently harbored any doubts whatsoever about Green's medical problems in so far as they may have affected his employability. In her testimony, Valerie Boyce completely failed to explain or expand on the basis for the discharge and it was stipulated that neither traffic accidents nor traffic violations played any part in the Respondent's decision to discharge Green. It appears that the sole supporting explanation is the argument in Respondent's brief that Green had an excessive absentee record and that this demonstrates he was medically unfit for the job. Howev- er, there is no evidence that whatever absences Green had were attributed to any of the medical conditions re- cited in the July 11 letter Further, the policy of the Em- ployer was to grant five paid sick days a year and, in 1983, Green had used only 4-1/2 of these days with his last absence having occurred on May 6. Finally, Green's absentee record was an ever-improving one, for in 1982 he had been absent 10 days while in 1981 he had 18 ab- sences. c. Analysis 1 The refusal to bargain The evidence in this case demonstrates an unrelenting and persistent refusal by Respondent to acknowledge the Union's status as the certified representative. Every effort by the Union to hold a bargaining meeting, to elicit a counterproposal, to secure information, and even to receive a return phone call was ignored by Respond- ent. It mattered not whether the Union's attempt was in person, by mail, or by phone, the result was the same, Employer silence Every effort was made by the Union to bring the Employer to the bargaining table, going so far as to offer to meet according to any schedule pro- posed by the Employer. But even this simple request was greeted by the Employer's silence. Not having a valid reason for its refusal to bargain, Respondent did not offer one to the Union. Although Respondent's answer and brief assert that it was prevent- ed from bargaining because of the illness of Arnold Boyce, and the lack of authority by Valerie Boyce, it neither communicated this to the Union nor offered evi- dence at the hearing in support of such excuse. Whether or not, under all the circumstances, this is a legally tena- ble argument, need not be considered for the foregoing and for the additional reason that Valerie Boyce was possessed of sufficient authority to engage in meaningful bargaining with the Union. Despite Arnold Boyce's inca- pacity, she operated and managed this small family busi- ness. She wrote checks, paid rent, extended Respondent's credit, was a member of the board of directors, held the office of president and secretary, and managed, directed, and supervised the day-to-day operations of the business. Indeed, it could not have been otherwise, inasmuch as Arnold Boyce became very sick in the summer of 1982 and, from that time on made only infrequent appearances at the office. He was hospitalized for 3 or 4 months, rarely was present at the office, and died in October 1983. Certainly from that day on any asserted lack of au- thority must be viewed as a sham. Although Arnold Boyce may have continued to exercise managerial au- thority, as witness the discharge of Green, it does not negate Valerie Boyce's authority. Moreover, this demon- strates that if Valerie required Arnold's approval for any action, it could have been obtained. The conclusion compelled by this record, therefore, is that Respondent, without any legitimate justification, to- tally has rejected the obligation to meet and bargain with the Union as required by Sections 8(d) and 8(a)(5) of the Act. Section 8(d) of the Act defines collective-bargaining as "the mutual obligation of the employer and the repre- sentative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment." Re- spondent has engaged in a blatant refusal to comply with this obligation or even to acknowledge that the Union exists as the certified collective-bargaining representative. It is difficult to imagine a situation where a certified union has been so ignored by an employer Long ago the Board observed "it is elementary that collective-bargaining is most effectively carried out by personal meetings and conferences of parties at the bar- gaining table. Indeed, the Act imposes this duty to meet." United States Coal Storage Corp., 96 NLRB 1108 (1951), enfd. 203 F.2d 924 (5th Cir. 1953). And, the prin- ciple that a certified bargaining representative is entitled to, on its request, specific assurance of recognition as the exclusive bargaining representative hardly requires cita- tion it is so well settled. See, e.g., Mc Quay-Norris Mfg. Co., 21 NLRB 709, 715-717 (1940), enfd. 116 F.2d 748 (7th Cir 1940), cert. denied 313 U.S. 565 (1940). By its conduct, if not by its word, Respondent has defaulted in its statutory obligation to accord the Union the full and complete recognition to which it is entitled by the Act. 2. The discharge of Green The evidence, much of it undisputed, concerning the discharge of Peter Green compels a finding of violation in much the same way as with respect to the refusal to bargain. Although Respondent raises more of a "paper" defense to this allegation, it is so flimsy and transparent as to be legally nonexistent. Green was the sole employee organizer and contact with the Union. Between January and May 1983, he ac- tively solicited authorization cards from the entire unit and, through his efforts, the Union was certified in June Prior to the filing of the petition in May, Green was sub- jected to two instances of interrogation by Valerie Boyce in her office during which he was questioned about his knowledge of the organizing activity. Shortly after the filing of the petition, Green was interrogated twice by Arnold Boyce concerning his knowledge of the union activity, questions which were coupled with threats of 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant closing and warnings that the employee organizer would be fired As noted above, although Arnold Boyce was deceased at the time of the hearing, I have credited Green's testimony that Boyce made the statements be- cause they fall within the pattern of other illegal activity engaged in by Respondent including its hallmark 8(a)(5) violation, and the underned interrogation committed by Arnold Boyce's daughter Valerie. Thus, there is a strong likelihood based on independent corroborating evidence of a like nature that Arnold Boyce committed the acts charged to him by Green. Coupled with the foregoing evidence of hostility towards Green and the Union is the fact that Green was discharged within days of the certifi- cation, the last act in the sequence of union activities ini- tiated by Green. The threat to discharge the employee organizer thus bore fruit. Although Respondent claims in its brief that it knew not of Green's union activities, I note that Valerie Boyce did not directly deny such knowledge. But, in any event, the circumstantial evidence provides a substantial basis for an inference of such knowledge in the absence of direct evidence. The threats, the interrogation of Green; the timing of the discharge without warning, the very small complement of employees; the other violations, in- cluding the refusal to bargain, thereby demonstrating hostility towards the statutory rights of employees; the pretextual excuse given for the discharge (see discussion below), and the discharge of the only union activist; all combine to provide the necessary inference. "The same set of circumstances may be relied upon to support both an inference of knowledge and an inference of discrimi- nation." Coca-Cola Bottling Co. of Miami, 237 NLRB 936, 944 (1978) (and cases relied on therein) See also Ne- braska Bulk Transport, 240 NLRB 135 (1979), affd as to employee Miller 608 F.2d 311 (8th Or. 1979). Singling out Green for repeated interrogations and directing the discharge threats only to Green alone are acts sufficient in themselves to warrant the inference that Respondent, at least, suspected Green as the organizer. Accordingly, the General Counsel has established a prima facie case for a finding of discriminatory discharge. We turn then to Respondent's asserted reasons for its firing of Green. Respondent's discharge letter enumerates high blood pressure (hypertension), diabetes, and nose bleeds, pre- sumably all of which in combination, or perhaps sepa- rately, constituted a danger to Green and to the public and, as stated in the brief, it would have "been criminal to expose innocent people and the public to the danger of being killed or maimed." That Green was a diabetic was known to Respondent from his first day of employ- ment in 1975. How or why diabetes made him unem- ployable, particularly after 8 years on the job, is no- where explained in the record or in the brief How or why Green's diabetes constituted a danger to the public also is unexplained, especially in light of the continued employment of Dudley Jordon who also drives an ambu- lette, also has diabetes and, furthermore, is under medical attention. Respondent's reliance on Green's nose bleeding fares no better This condition simillarly existed from the very first day of his employment and again no explanation is offered as to how or why that condition poses a danger to the public or to Green. It particularly is baffling why this is even mentioned given the fact that Green had the condition surgically cured in July 1982, and has not suf- fered from that situation since. We are left then with hy- pertension as a justification for the discharge. There is not a scintilla of evidence in this record to support the Respondent's claim that Green's hypertension made him medically unfit for employment. In fact, the record con- tains no reliable medical evidence as to the severity of his condition If Respondent's contention is to be accept- ed then Respondent must be viewed as being criminally negligent for having hired Green in 1975 and allowing him to work while being so severely disabled. The truth of course is that Green was as medically and physically able to work in 1983 as he ever had been during his employment by Respondent. Respondent's at- tempt to demonstrate otherwise serves only to highlight the tissue-thin nature of its defense. Thus, it points to a medical record in 1978 that Green had poor health, but ignores another record later that year attesting to the sta- bilization of his condition and to his satisfactory progress In any event, attempting to justify a discharge in 1983 by reference to a 1978 document is itself an exer- cise in futility, particularly as Respondent continued to employ Green without complaint throughout the entire period of time. Respondent's further attempt to support its case by reference to Green's alleged poor attendance record further demonstrates the incredible nature of its defense. In 1983, Green had markedly improved on his attendance in earlier years. He had not used the 5 days of paid absence for sick leave permitted by Respondent's policy, and his last absence had been in May 1983, about 2 months before the discharge. In its brief, Respondent asserts that absenteeism as such was not the problem, but rather that it was the reason for the absenteeism that was material The short answer to that is there is absolutely no proof that Green's absences, as few as they were, were as a result of the three medical conditions given as the reasons for the discharge. Be that as it may, his ab- senteeism record was not shown to have been a link in a chain of dangerous conditions nor as a problem in any respect to Respondent. It would be charitable, at best, to conclude the reasons given for Green's discharge simply do not exist, and that Respondent must be guilty, at the very least, of an arbi- trary discharge. Of course, an arbitrary discharge does not constitute a violation of the Act. But, having reject- ed the Respondent's stated grounds as pretextual, we in- quire whether or not the evidence furnishes the real reason. As more fully elaborated above, this record amply supports a conclusion that the decision to dis- charge Green was motivated by his union activity which led to the certification of the Union as the bargaining representative By advancing an insubstantial, unreliable, and almost nonexistent reason, Respondent has not met the burden imposed on it to overcome the General Counsel's prima facie case. The case at bar is a classic example of the type of situation referred to by the Su- preme Court in affirming the propriety of shifting the burden of proof in discriminatory discharge cases. "The Employer is a wrong-doer; he has acted out of a motive CITY-WIDE AMBULETTE, INC. 887 that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal mo- tives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing" NLRB v. Trans- portation Management Corp., 462 U S. 393 (1983); Wright Line, 251 NLRB 1083 (1980), enfd. 662 F 2d 899 (1st Cir 1981). 3. Interrogation and threats Apart from the above violations the record also dis- closes several instances of Independent 8(a)(1) violations On four separate occasions, Green was asked by Valerie and Arnold Boyce what he knew of the union activities and who was responsible for them. On two of those oc- casions Arnold Boyce coupled the questioning with threats to discharge the union leader and to shut the entire operation if the Union were successful in its orga- nizing campaign. The Board in Rossmore House, 269 NLRB 1176 (1984), recently reiterated a case-by-case ap- proach for determining whether or not an employer co- ercively interrogates its employees within the meaning of Section 8(a)(1) of the Act. Consideration is given to such factors as the time and the place of the interrogation, the management person involved, the information sought, whether the interrogation occurred in an atmosphere free of coercive conduct, whether it was isolated or sys- tematic, the purpose behind the interrogation, truthfull- ness of the reply, and whether or not the employee is a known union adherent. After analyzing the various fac- tors, a determination must be made as to whether or not the conduct in issue may reasonably be said to have had a tendancy to interfere with the free exercise of employ- ee rights under the Act American Freightways Co, 124 NLRB 146, 147 (1959) Applying the above tests inescapably leads to the con- clusion that the four instances of interrogation were co- ercive within the meaning of Section 8(a)(1) of the Act. Thus, Green was not known to be a union adherent and, in fact, he tried to conceal it. The questioning of Green was clearly without any legitimate purpose and, as dis- closed by Arnold Boyce, was for an illegal purpose, namely, to ferret out the identity of the union leader in order to discharge that person. Further, Arnold's interro- gation was accompanied by threats of discharge and plant closure, and all of the interrogations were conduct- ed by the highest level of management without any safe- guards announced. Finally, the questioning was in the context of other unfair labor practices. In addition to the unlawful interrogations, the Employer also unlawfully threatened to discharge employees for their union activi- ty and to close the plant if organization were successful, violations of the Act requiring no case citation 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 discriminatorily discharging and refusing to rein- state its employee Peter Green because of his acittvity on behalf of the Union, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4 By coercively interrogating employees, Respondent violated Section 8(a)(1) of the Act. 5 By threatening its employees with the closing of its business and the discharge of union leaders, Respondent violated Section 8(a)(1) of the Act. 6. By refusing to meet and bargain with the Union since August 15, 1983, as the statutory representative of its employees in an appropriate bargaining unit, Respond- ent has violated Section 8(a)(5) and (1) of the Act. The bargaining unit consists of all full-time and regular part- time drivers and attendants employed by Respondent at its 470 Lenox Avenue, New York, New York facility 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has enaged in certain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discrimatorily discharged Peter Green, I recommend that it offer him reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority or other rights and privileges previously enjoyed. Respondent also shall make him whole for any loss of earnings and other benefits computed on a quarterly basis from the date of discharge to the date of a proper offer of reinstatement, less any net interim earnings, as prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Isis Plumbing Co, 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977) It also is recommended that Respondent ex- punge from its files any reference to the discharge of Green, and notify him in writing that it has done so, and that evidence of this discharge will not be used as a basis for future personnel action against him. Sterling Sugars, 261 NLRB 472 (1982) Having found that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, it shall be ordered to cease and desist therefrom and, on request, bargain col- lectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an under- standing is reached, embody such understanding in a signed agreement In order to ensure that the unit em- ployees be accorded the services of their selected bar- gaining agent for the period provided by law, I also rec- ommend the initial period of certification be construed as beginning on the date that Respondent commences to bargain in good faith with the Union as the exclusive bargaining representative in the unit See Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert denied 379 U.S 817; Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965) 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 3 ORDER The Respondent, City-Wide Invalid Service, Inc. a/k/a City-Wide Ambulette, Inc., New York, New York, its officers, agents, successors, and assigns, shall I. Cease and desist from (a) Discharging, laying off, or otherwise discriminating against employees in regard to hire or tenure of employ- ment, or any term or condition of employment because of their activities on behalf of Local 531, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America or any other union. (b) Coercively interrogating any employee about union support or union activities. (c) Threatening to discharge employees or to close the business because employees join or support a union (d) Refusing to recognize and bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Local 531, as the exclu- sive collective-bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time drivers and at- tendants employed by Respondent at its 470 Lenox Avenue, New York, New York facility. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Peter Green immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, in the manner set forth in the section of this decision entitled "The Remedy." (b) Make whole Peter Green who was discharged on July 11, 1983, for any loss of pay and other benefits suf- fered as a result of the discrimination against him in the manner set forth in The Remedy section of this decision (c) Expunge from its files any reference to the unlaw- ful discharge of Peter Green on July 11, 1983, and notify him in writing that this has been done, and that evidence of this unlawful discharge will not be used as a basis for future personnel action against him. (d) On request, bargain with Local 531 as the exclu- sive collective-bargaining representative of all the em- ployees in the aforesaid appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody the understanding in a signed agreement. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- 3 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 roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary or useful to analyze the amount of backpay due under the terms of this Order. (f) Post at its place of business, in New York, New York, copies of the attached notice marked "Appendix A."4 Copies of the notice, on forms provided by the Re- gional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. ' If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, it has been found that we have violated the National Labor Rela- tions Act and we have been ordered to post this notice. WE WILL NOT discharge, layoff, or otherwise discrimi- nate against our employees because of their activities on behalf of Local 531 Teamsters, Chauffeurs, Warehouse- men and Helpers, or any other union. WE WILL NOT coercively interrogate our employees about their union support or union activities. WE WILL NOT threaten to discharge employees or close our business because employees join or support a union. WE WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours, and other terms and con- ditions of employment with Local 531, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL offer Peter Green immediate and full rein- statement to his former position or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or other rights and privileges, and make him whole, with interest, for any loss of earnings he may have suffered because of our discriminatory con- duct against him. CITY WIDE AMBULETTE INC 889 WE WILL expunge from our files any reference to the termination of Peter Green and WE WILL notify him that this has been done and that evidence of this unlaw ful termination will not be used as a basis for future per sonnel actions against them WE WILL on request bargain with Local 531 as the exclusive representative of all employees in the bargain ing unit decnbed below with respect to rates of pay wages hours and other terms and conditions of employ ment and if an understanding is reached embody such understanding in a signed agreement The bargaining unit is All full time and regular part time drivers and at tendants employed at our 470 Lenox Avenue New York New York facility CITY WIDE INVALID SERVICE INC A/K/A CITY WIDE AMBULETTE INC