N.L.R.B. v. Parr Lance Ambulance Service

• Decision Date: 14 December 1983
• Docket Number: No. 82-2724,82-2724
• Citation: 723 F.2d 575
• Parties: 115 L.R.R.M. (BNA) 2193, 99 Lab.Cas. P 10,635 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PARR LANCE AMBULANCE SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 575

723 F.2d 575

115 L.R.R.M. (BNA) 2193, 99 Lab.Cas. P 10,635

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PARR LANCE AMBULANCE SERVICE, Respondent.

No. 82-2724.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 19, 1983.

Decided Dec. 14, 1983.

Pat Wynns, Elliott Moore, N.L.R.B., Washington, D.C., for petitioner.

Michael V. Gooch, Harrison & Moberly, Indianapolis, Ind., for respondent.

Before BAUER and WOOD, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Parr Lance Ambulance Service ("Parr Lance") asks this court to deny enforcement of an order issued by the National Labor Relations Board ("the Board"). The Board determined that Parr Lance violated section 8(a)(1) of the National Labor Relations Act (29 U.S.C. Sec. 158(a)(1) (1976)) by discharging ambulance driver Timothy Smith for refusing to operate an ambulance lacking certain emergency medical equipment required by state law. We affirm the Board's determination that Parr Lance discharged Smith for engaging in protected activity, and order enforcement of the Board's ruling requiring reinstatement.

I. Background

Parr Lance provides ambulance and related services in Indianapolis, Indiana. Indiana law requires that ambulance providers be certified by the Indiana Emergency Medical Services Commission ("EMSC"), and that certified ambulances carry certain equipment at all times. Each ambulance at Parr Lance is assigned a driver and an emergency medical technician ("EMT") who are, together, responsible for checking the ambulance and its equipment each day. Although ambulance drivers' official duties are limited to checking the condition of the ambulance (e.g., the body condition, tires, engine operation, etc.), they also assist the EMTs in using ambulance equipment to provide patient care.

Timothy Smith was an ambulance driver for Parr Lance. On March 4, 1981, Smith and fellow employee Tine Martin, an EMT, had a meeting with management personnel of Parr Lance to discuss a disagreement between Smith and a dispatcher. During the course of this meeting both Smith and the EMT complained that the company's ambulances lacked certain medical equipment required by state law.

On April 4, 1981, Smith and Nancy Stewart, the EMT assigned to his ambulance that day, inspected their ambulance and discovered that it lacked certain items of required medical equipment. Smith presented a list of the missing equipment to the Parr Lance dispatcher, and requested a different ambulance. The dispatcher told Smith that he had to take the assigned ambulance, but the dispatcher agreed to call Jones, the ambulance division supervisor.

While waiting to hear from Jones, Smith and Stewart completed two routine, nonemergency runs. They refused a third run and then returned to the base. Jones had been there earlier, but was gone again, so the dispatcher called in Michael Shonkwiler, the company manager. ¹ Smith informed Shonkwiler that the ambulance lacked a considerable amount of equipment and that he would not take in out in that condition. Stewart said that she agreed with Smith. Shonkwiler told them that if they felt that way, they should clock out and go home. Smith then clocked out and left.

Stewart, who was upset and crying, remained outside the dispatch office. Smith stopped and told Stewart that he was going to the EMSC and the Labor Board, so she should not worry. After Smith left, the dispatcher asked Shonkwiler if she could assign Stewart to another partner for the remainder of the day. Shonkwiler agreed, and Stewart continued to work.

On April 5, 1981, Smith arrived at work and asked for his time card. The dispatcher informed Smith that Shonkwiler had taken him off the schedule.

Thereafter, Smith and EMT Tine Martin went to the EMSC to complain about Parr Lance's failure to maintain required medical equipment on their ambulances. The EMSC subsequently inspected Parr Lance's ambulances and found that they lacked a significant amount of equipment.

Based on the above facts, the Board affirmed the Administrative Law Judge's finding that Parr Lance violated section 8(a)(1) of the National Labor Relations Act by discharging Smith for his refusal to operate an ambulance lacking proper medical equipment. ² The Board ordered Parr Lance to reinstate Smith, to make him whole for any loss of pay he suffered, and to expunge from its records any reference to Smith's discharge.

Parr Lance asserts that Smith did not engage in protected activity, arguing that Smith's concern over missing medical equipment did not relate to working conditions, and that Smith did not act in concert with anyone in refusing to operate his assigned ambulance. In reviewing the Board's determination we must keep in mind that Congress intended that the protections of section 7 be "broadly construed," see Eastex, Inc. v. NLRB, 437 U.S. 556, 567 n. 17, 98 S.Ct. 2505, 2513 n. 17, 57 L.Ed.2d 428 (1978), and provided that the Board is to determine in the first instance whether a specific activity is protected. Id. at 568, 98 S.Ct. at 2513. We will not reposition a line drawn by the Board between protected and unprotected behavior unless the Board's line is " 'illogical or arbitrary.' " NLRB v. Ben Pekin Corp., 452 F.2d 205, 207 (7th Cir.1971) (per curiam) (quoting NLRB v. Thor Power Tool Corp., 351 F.2d 584, 587 (7th Cir.1965)). We are not persuaded that the Board's determination is illogical or arbitrary, and affirm its ruling that Smith's refusal to operate the ill-equipped ambulance qualified as concerted activity related to a working condition.

II. Working Conditions Requirement

Parr Lance argues that Smith's concern over missing emergency equipment relates to patient care rather than to conditions involved in his own driving or maintenance of his ambulance, and thus should not qualify as a concern over working conditions. We do not agree that a health care employee who complains about inadequate medical equipment fails to qualify for protection simply because he may be motivated by a concern for patient welfare. Neither do we agree that an ambulance driver's working conditions are limited solely to conditions that affect his own driving or maintenance of his ambulance.

In the health care field patient welfare and working conditions are often "inextricably intertwined." Misericordia Hospital Medical Center v. NLRB, 623 F.2d 808, 813 (2d Cir.1980). Inadequate medical equipment can affect a health care provider's ability to properly care for a patient. To the extent that an employee's duties relate to providing patient care, therefore, a lack of necessary medical equipment affects both the patient's welfare and the working conditions of the health care provider.

Parr Lance contends, however, that adequacy of patient care cannot, in and of itself, form the basis for protected activity. Parr Lance concludes that Smith is not protected because he was motivated solely by a concern for patient welfare. The motives of an employee who takes an action related to working conditions is irrelevant in determining whether the action is protected. Dreis and Krump Manufacturing Co. v. NLRB, 544 F.2d 320, 328 n. 10 (7th Cir.1976). Even if a health care employee phrases a complaint about a situation solely in terms of its effect on patient welfare, the employee is protected if the situation relates to a working condition. Cf. Misericordia, 623 F.2d at 811 (preparation of a report listing " 'serious deficiencies in the quality of care at Misericordia Hospital' " protected where complaints relating to patient welfare also relate to things that affect the nurses' performance of their duties).

An ambulance driver is a member of an emergency medical assistance team. Although a driver and an EMT have different primary functions on that team, they both work toward the common goal of providing prompt, appropriate medical care. EMT Stewart testified without contradiction that part of a driver's duties include assisting the EMT in using emergency equipment when necessary. That Smith was an ambulance driver rather than an EMT, therefore, does not mean that his official duties were so divorced from providing patient care that adequacy of medical equipment bore no relation to Smith's working conditions. If Smith was a car mechanic who simply serviced Parr Lance's ambulances, the Board and this court may have reached a different result. But such is not the case. ³

The Administrative Law Judge noted that the failure to provide proper care because of missing equipment could subject Smith, as a member of an emergency assistance team, to a civil suit for damages:

[I]t is possible that both [Smith] and the EMT could be the subject of a lawsuit if they, acting as a team, failed to provide adequate emergency medical care to a patient because they lacked the state required equipment to do so.

Parr Lance Ambulance Service, 262 N.L.R.B. 1284, 1287 (1982). Parr Lance denies that Smith could be liable for damages caused by a lack of necessary equipment, and argues further that Smith's acts should not be protected in any event because Smith never stated or implied that his concern in refusing to operate the ambulance on April 4 had anything to do with fear for his personal liability. Both of these arguments miss the mark. First, it is certainly arguable that operating an ambulance, knowing that it lacks state-required equipment, might constitute negligence. ⁴ Second, as we have already explained, the concerns that motivate an employee to take an action are irrelevant to determining whether the action is protected. We affirm the Board's conclusion that adequacy of emergency medical equipment qualifies as a working condition for Smith. ⁵

III. Concerted Activity Requirement

Parr Lance also asserts that Smith's refusal to operate his ill-equipped ambulance does not qualify as concerted activity. Parr Lance bases its argument on Stewart's failure to clock out with Smith. We are not...