N.L.R.B. v. Randle-Eastern Ambulance Service, Inc.
| Decision Date | 22 November 1978 |
| Docket Number | RANDLE-EASTERN,No. 77-3278,77-3278 |
| Citation | 584 F.2d 720 |
| Parties | 99 L.R.R.M. (BNA) 3377, 84 Lab.Cas. P 10,916 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.AMBULANCE SERVICE, INC., and Randle Medical Sales and Rentals, Inc., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Deputy Associate, Gen. Counsel, Janet McCaa, Supervisor, Michael Nicholson, Atty., N. L. R. B., Washington, D. C., for petitioner.
James C. Bramnick, Herbert B. Mintz, Miami, Fla., for respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before BROWN, Chief Judge, GODBOLD and FAY, Circuit Judges.
The National Labor Relations Board seeks enforcement of its order against the respondent, Randle-Eastern Ambulance Service and Randle Medical Sales and Rentals. The Board found that Randle-Eastern (the Company) violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C.A. §§ 158(a)(1), 158(a)(5), when it withdrew previous contract proposals from the bargaining table and substituted new proposals less favorable to the employees; that it violated §§ 8(a)(1) and 8(a)(5) when it withdrew recognition from the Union without any objective basis for reasonably doubting the Union's majority support; and that it violated § 8(a)(1) when it informed a striking employee that his reinstatement was conditioned on his resigning from the Union. The Board ordered the Company to cease and desist from the unfair labor practices found, to offer reinstatement, upon application, to all striking employees who were not permanently replaced prior to the Company's withdrawal of its previous proposals, 1 to make such employees whole for any loss of earnings they may have suffered by reason of the Company's refusal to reinstate them, to bargain with the Union, and to post the customary notices. We enforce only those aspects of the Board's order that pertain to the Company's violation of § 8(a) (1) by informing a striking employee that his reinstatement was conditioned on resignation from the Union. In all other respects, we decline to enforce the Board's order.
The Company operates a private emergency and nonemergency ambulance service in Dade County, Florida. Calls requesting ambulance service come from both private parties and from fire and police units. Sixty to sixty-five percent of the Company's calls are from fire and police units pursuant to a contract with Dade County. The amount of the fees charged for ambulance service both for private and County calls is controlled by the County.
In 1967, Local 500 of the Transport Workers of America (the Union) was certified as the bargaining representative of the Company's ambulance drivers, attendants, and mechanics. The Company and the Union thereafter negotiated a series of collective bargaining agreements, the last of which expired on March 31, 1976. On February 2, 1976, representatives of the Company and the Union began negotiations for a new contract. 2 Negotiations proceeded apace, the parties reaching tentative agreement on a number of provisions to be included in the new contract. But as the March 31 expiration date approached, it became apparent that the Company and the Union were still far apart on many major items. After March 22, the negotiations were held in the presence of a mediator from the Federal Mediation and Conciliation Service (FMCS).
On March 24, the Company, desiring to avoid a strike if at all possible, proposed that three items be submitted to arbitration, the arbitrator's award to be subject to approval by the County of a fee increase sufficient to cover additional costs. These items were the Union's demands for (i) a change in the work schedule from 24 hours on 24 hours off to 24 hours on 48 hours off, with no reduction in compensation, (ii) a wage increase of 10 percent immediately and 10 percent at the end of the first year, together with a cost-of-living adjustment, and (iii) improvements in the pension plan. The Union initially rejected this proposal, but it did not dismiss it out of hand.
Over the course of the next few days' bargaining, the Company made several concessions and agreed to improve fringe benefits. On March 29, the negotiators reached a tentative agreement. Their agreement, as evidenced by a synopsis prepared by the Union, provided for increases in supplemental Workmen's Compensation coverage, major medical coverage, hospitalization, and life insurance. The clauses in the proposed contract relating to management rights, sick leave, holidays, vacations, discipline, and grievance procedures were more favorable to the Union and the employees than those in the previous contract. On its part, the Union agreed to submit the issues of schedule revision, wages, and retirement benefits to arbitration.
The unit employees voted on the proposed contract on March 30 and 31. Although the Union negotiating committee unanimously recommended ratification, the employees rejected the agreement and voted to go on strike. At midnight on March 31, 166 of the 177 unit employees struck the Company.
On April 1, 1976, the County suspended the Company's contract. As a consequence, the Company's call volume and total revenue dropped off precipitously, from some 11,000 calls and $530,000 in March to 2,600 and $125,000 in April. The Company began immediately to hire replacements for the striking workers.
The next meeting took place on April 8 in the FCMS mediator's office. The Union stated that three issues were open: the shift schedule, wages, and the retirement plan. The Union withdrew its commitment to submit these issues to arbitration. The Company responded by explaining its cost problem, emphasizing (as it had throughout the negotiations) that its rates were controlled by the County. Proposals and counter-proposals on wages and shift schedules were advanced and discussed, but no significant progress was made.
At the next bargaining session on April 22, the Union continued to insist on the 24 hours on 48 hours off shift schedule with no reduction in compensation. It proposed a four-year contract to phase in the reduced work schedule, with a wage reopener after two years. After an extended discussion of this proposal, the head Company negotiator announced that the Company was withdrawing all prior offers, stating: The parties then went into caucus. The mediator reported to the Company that the Union wanted all pre-strike economic concessions left "on the table," the Company's proposal for arbitration dropped, and a pending state court damage action for picket-line violence dismissed. The Company refused. Upon returning to the bargaining table, the Union demanded that whatever replacements the Company had hired be let go if necessary to make room for returning strikers. The Company replied that "that may give us some problems."
The parties met with the mediator again on May 3. According to Company witnesses, the mediator suggested to the Company negotiators that they "clear the air" on the issue of the job rights of replacements vis a vis those of returning strikers. 3 Upon meeting with the Union negotiators, the Company stated that a number of replacements had been hired and that the Company would not terminate them, but that strikers would be returned to work as vacancies occurred and would be accorded their accrued seniority. The Union continued to insist that the returning strikers be given priority over the replacements, stating that otherwise no contract could be concluded. The meeting ended, nothing else but the replacements versus returning strikers issue having been discussed.
At the next meeting on May 25, the Union stated that it would be "flexible" on the replacements versus returning strikers issue and suggested that the parties discuss the contract issues. The Company asked for time to prepare a complete contract proposal.
The parties met again on June 1. In the meantime, the County had indicated that it would restore the Company's contract. At the June 1 meeting, the Company presented a package of contract proposals that, except for the omission of a work schedule provision, constituted a complete contract. The Company's proposals were for the most part less favorable to the Union and the employees than those submitted to an employee vote on March 30, although they contained some improvements over the expired contract. 4
After a caucus the Union noted the return of the previous contract's management rights clause and questioned the omission of a work-schedule proposal. The Company responded that it had "problems on work schedules," in that the strike and its consequences had caused the Company's needs to change. The Company asked the Union for suggestions. The Union stated that any work schedule was better than none "even if it was the same 84 hour work week, as long as the guys knew what they were going to work." The Company refused to return to the old schedule and suggested instead that schedules be posted weekly. The Union and the Company were unable to agree on a work schedule.
Two further meetings were held. On June 2, the parties met separately with the FCMS mediator. The Union modified its stance on the replacements versus returning strikers issue and made several other significant concessions. On June 7, the parties met briefly. The Company announced that it was withdrawing recognition from and refusing to bargain further with the Union because it doubted that the Union represented a majority of the employees.
Relying principally, if not exclusively, on the Company's April 22 withdrawal of its tentatively...
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