United EMS Workers - Decision and Direction of Election by the NLRB

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION 20

AMERICAN MEDICAL RESPONSE WEST

Employer

and

UNITED EMERGENCY MEDICAL SERVICESWORKERS, AFSCME, AFL-CIO

Petitionerand Case 20-RC-066407

NATIONAL EMERGENCY MEDICAL SERVICESASSOCIATION (NEMSA)

Intervenor/Incumbent

and

INTERNATIONAL ASSOCIATION OF EMUSAND PARAMEDICS, SEIU/NAGE LOCAL 5000

Intervenor

DECISION AND DIRECTION OF ELECTION

American Medical Response West (Employer) provides emergency and non-

emergency medical transportation services in numerous counties throughout Northern

California. By its amended petition, United Emergency Medical Services Workers,

AFSCME, AFL-CIO (Petitioner) seeks to represent employees of the Employer in an

historical certified single multi-location unit.' Petitioner and Intervenor/Incumbent

The petitioned-for unit is as follows:

All full-time and regularly scheduled part-time employees in Northern California,including: EMT- Is, EMT-2s, EMT-Ps, drivers, wheelchair van drivers, paramedic CCTs,

Decision and Direction of ElectionAmerican Medical Response West20-RC-066407

Union, National Emergency Medical Services Association (NEMSA), take the position

that the petitioned-for unit is an appropriate unit.2 Intervenor, International Association

of EMT's and Paramedics, SEIU/NAGE Local 5000 (SElU) did not take a position on

what constitutes an appropriate unit and has indicated its willingness to proceed to an

election in any unit found appropriate.

The Employer contends that the historical unit is no longer an appropriate unit. It

presented evidence showing that as a result of losing substantial business in certain Bay

Area counties in 2010-2011, 3 it consolidated its remaining operations in those counties

into a single division. Although the operations conducted under the new division were

formerly encompassed within the historical unit, the Employer argues that the changes

resulting from the consolidation of its operations have destroyed the community of

interest between employees in the new division and those in the other operations within

the historical unit. Thus, the Employer asserts that the only appropriate units are two

separate units, one comprised of about 400 employees employed within its new division,

EMT CCTs, gurney van drivers (Sacramento only), and RNs in Alameda, Contra Costa,

Marin, Placer, Sacramento, San Benito, San Francisco, §an Joaquin, San Mateo, Santa

Clara, Santa Cruz, Shasta, Solano, Sonoma, Stanislaus, Tulare and Yolo counties, and any

distinct CCT and IFT divisions.

Dispatchers call takers/customer service representatives, system status controllers in Santa

Clara, Sacramento, San Mateo (BayCom), Sonoma (RedCom) and Stanislaus (LifeCom)

counties;

Pre-billers, billers, clerk Is, clerk 2s, stockers, washers, vehicle service technicians,

mailroom clerk (Alameda only), couriers, deployment coordinators and schedulers in

Alameda, Contra Costa, San Mateo, Santa Clara, Stanislaus (vehicle service technician

only), Tulare (clerk Is and clerk 2s only), and any distinct CCT and IFT divisions,

facilities coordinators (Santa Clara, Stanislaus, and CCT and IFT divisions only);

EXCLUDING: EMT- 1 s and EMT-Ps in Tracy and Turlock EMT-Ps in San Mateo

County and all other personnel, including guards, professional employees and supervisors

as defined by the National Labor Relations Act, as amended.

2 The petitioned-for unit is set forth in a tentative agreement reached between the Employer and NEMSA

dated June 8.

3 All dates herein refer to calendar year 2011 unless otherwise indicated.

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and the other comprised of approximately 1200 employees outside the new division who4are within the historical bargaining unit.

After careful consideration of the entire record, the arguments of the parties and

applicable legal principles, for the reasons discussed below, I reject the Employer's

position. I have concluded that the petitioned-for unit would be an appropriate unit.

However, because of the need for a Sonotone 5 election for the RNs in the petitioned-for

unit, my findings regarding the appropriate unit or units are dependent on the outcome of

the Sonotone voting procedure. Sec. 9(b)(1) of the Act.

4 The two units urged by the Employer as the only appropriate units are as follows:

UNIT AIncluded: All full-time and regular part-time EMT- Is, EMT-Ps, drivers, and wheelchairvan drivers employed by the Employer at its facilities in Contra Costa, Placer,Sacramento, San Benito, San Francisco, San Joaquin, San Mateo, Santa Cruz, Shasta,Sonoma, Stanislaus, Tulare and Yolo Counties.

All full-time and regular part-time dispatchers, call-takers and system status controllersemployed by the Employer at its facilities in Sacramento (SacCom), San Mateo(BayCom), Sonoma (RedCom) and Stanislaus (LifeCom) Counties.

All filll-time and regular part-time pre-billers, billers, clerk Is, clerk 2s, stockers, washers,vehicle service technicians, couriers, deployment coordinators, facilities coordinators andschedulers employed by the Employer at its facilities in Contra Costa, San Mateo,Stanislaus (vehicle service technician and facilities coordinators only) and Tulare (clerkIs and clerk 2s only) Counties.

Excluded: All EMT-Is and EMT-Ps in Tracy and Turlock Counties; all employees in theBay Area Inter-Facility Transport Division, guards, confidential employees, professionalemployees and supervisors as defined by the Act.

UNIT B

Included: All full-time and regular part time EMT- Is, EMT-Ps, paramedic CCTs, EMTCCTs and RNs employed by the Employer at its Bay Area Inter-Facility TransportDivision.

All full-time and regular part-time vehicle service technicians and schedulers employedby the Employer at its Bay Area Inter-Facility Transport Division.

Excluded: All other employees, guards, confidential employees, professional employees,and supervisors as defined by the Act.

5 Sonotone Corp., 90 NLRB 1236 (1950).

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UNIT STIPULATIONS

The parties stipulated, and I find, that the RNs employed by the Employer within

any the unit are professional employees who should be accorded a Sonotone election.

The parties also stipulated, and I find, that employees who function as alternate

supervisors do not hire fire, discipline or otherwise affect employees' terms and

conditions of employment using independent judgment, and are not supervisors under

Section 2(11) of the Act. 6

FACTS

Witnesses. The following witnesses testified at the hearing: Tom Wagner,

Employer CEO (Western Region); Gil Glass, General Manager (Bay Area/Inter-Facility

(IFT) Operations/Transportation Services); Jerry Souza, General Manager (Bay Area

IFT/Client and Critical Care Transport (CCT) services); Daniel Franklin, Operations

Manager (Bay Area IFT/South Bay); Nissa Guerrero, Field Training Officer/EMT (Bay

Area IFT/South Bay); William Bower, Paramedic/Alternate Supervisor/Field Training

Officer (9-1-1/Contra Costa County); Charles H. Lundy, Petitioner Organizer; Rebecca

Ayers, EMT and Regional Valley Director for NEMSA; and Douglas Jones, Paramedic

(Marin County) and Chief Shop Steward for NEMSA.

The Employer's Northern California Operations. The Employer operates

emergency and non-emergency medical transportation services in several Northern

California counties. It provides emergency 9-1-1 services involving Advanced Life

Support (ALS) type services under multi-year exclusive contracts with individual

counties. Pursuant to these contracts, the Employer responds to 9- 1 -1 calls using

ambulances typically staffed by two emergency medical technicians (EMTs) and a

paramedic. EMTs drive the ambulances and are generally trained and licensed to provide

non-invasive/basic life support (BLS) type medical care, such as bandaging, splinting,

6 Alternate supervisors are nonsupervisory employees such as EMTs, who have different dutiesdepending on whether they work within or outside of the Employer's new division. Thus, within thenew division, alternate supervisors work on non-emergency crews with other employees, and they alsooversee fellow crew members on their shift, basically serving as lead persons; alternate supervisorsworking outside of the new division in operations within the historical unit are nonsupervisoryemployees, such as EMTs, who substitute for regular supervisors on an as needed basis.

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and administering CPR and oxygen. EMTs also assist paramedics and other emergency

medical personnel. Paramedics have a higher level of training and licensing than EMTs

and can administer more invasive types of medical care, such as Ivs, defibrillation,

intubation and giving various medications.

The Employer also provides non-emergency/inter-facility transport (IFT) type

services under non-exclusive short-term contracts with private health care providers, such

as hospitals and nursing homes. The Employer's largest IFT clients in Northern

California are concentrated in the San Francisco Bay Area Counties of San Mateo, Santa

Clara, Alameda and Contra Costa. Clients include large health care systems such as

Kaiser Foundation Hospital and Sutter Health Care. IFT services typically involve the

scheduled transport of patients between medical facilities and/or medical facilities and

nursing homes. The Employer's IFT operation includes various levels of medical care

based on patient acuity. Most involve basic life support (BLS) type services using

ambulances staffed only by EMTs. The Employer also offers IFT clients advanced life

support (ALS) services similar to those provided in its 9-1 -1 operations; the ALS

ambulances are staffed by at least one paramedic and/or an additional paramedic or an

EMT. Lastly, the Employer provides Critical Care Transport (CCT) as part of its IFT

services; CCT utilizes ambulances with specialized equipment staffed with a combination

of RNs or paramedics and EMTs to handle critical-care patients.

About 70% of the Employer's business is generated by its 9-1 -1 operations and

about 30% is derived from its IFT operations. Historically, most of the Employer's IFT

services have been provided within the framework of its county-based 9-1 -1 operations.

IFT and 9- 1 -1 operations within the same county have historically shared common

management and been treated as separate profit and loss centers. Each county operation

has its own general manager who oversees both emergency 9-1 -1 and IFT operations

within the county. One exception has been that the operations in Sacramento, Placer and

Yolo Counties have had a single general manager even though each has its own separate

county contract and separate profit and loss statement. The general manager over a

county operation is responsible for its daily operations, finances and personnel matters.

The general managers report to higher level managers and corporate officers. Direct

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supervision over 9-1 -1 and IFT operations generally has been provided by county-level

operations managers, operations supervisors and field supervisors. The Employer has

also utilized a few unit employees (e.g., EMTs) as alternate supervisors to substitute for

other supervisory personnel as needed.

Within each county operation, the Employer's vehicles, equipment and supplies

have historically been shared between the Employer's 9-1 -1 and IFT operations with the

9-1 -1 operation having priority in their assignment and usage.

Historically, within county-based operations, 9-1 -1 and IFT-designated

ambulances have generally been posted at the same street locations based on where most

9-1 -1 business is generated. EMTs and paramedics working in 9-1 -1 and IFT operations

have similar training and licensing and have performed similar duties with regard to the

delivery of medical care. The record shows that employees working in the 9-1 -1 and IFT

operations have at times assisted each other in response to service calls.

Employees within the historical unit, such as EMTs, paramedics and RNs, have

received similar pay and benefits and shared common terms and conditions of

employment under successive collective-bargaining agreements regardless of the county

in which they worked. They have also been subject to the same Employer corporate

policies and procedures, shared a common payroll system, and utilized the same human

resources system. 7

As discussed below, since 2001, the temporary and permanent transfer of

employees within the historical unit has been governed by the terms of a collective-

bargaining agreement. Except as described below, the record does not indicate the

frequency of inter-county transfers. However, the record does reflect that with regard to

intra-county temporary transfers, 9-1 -1 employees have at times been temporarily

assigned to perform IFT work and vice versa. For example, Operations Manager Daniel

Franklin testified that when he was 9-1 -1 EMT in Santa Clara County, he was also

assigned to perform IFT work on an as needed basis by the operations supervisor in that

county. The testimony of Employer witnesses suggests that many EMTs in the IFT

7 The Employer's human resource personnel are assigned to assist and advise general managers in each

county in making personnel decisions.

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operation have viewed IFT work as a stepping-stone to permanent transfers into the

Employer's 9-1-1 operation.

In addition to the foregoing county operations, the Employer also operates four

separate dispatch centers in Northern California to handle dispatching for both 9-1 -1 and

IFT calls. 8 The Employer also maintains various support operations, such as human

resources, payroll, sales, client services, billing and vehicle maintenance. CCT has

historically been encompassed within the Employer's EFT operations, but has also been

treated as a separate operational unit by the Employer with separate medical oversight and

direction; the separation of CCT apparently relates to the skilled nursing care required for

CCT services.

As with other employees in the historical unit, dispatch and other support service

employees have likewise shared common wages and working conditions under successive

collective-bargaining agreements; been subject to common corporate policies; and shared

common overall corporate management, payroll and human resource services.

CoHective-Baryaining History. I take administrative notice of the Board's

Decision in AMR, Inc., 344 NLRB 1406 (2005), describing the Employer's history of

collective bargaining from 1995 to 2005. The Employer has had a history of collective

bargaining since about 1995. SEIU Local 250 represented its emergency and non-

emergency employees (except RNs) employed in 12 separate Northern California county

units under a single collective-bargaining agreement, effective from October 12, 1996

through June 30, 2001. In 2001, the Employer and SEW Local 250 agreed to combine

these 12 separate county units into a single overall unit under their July 1, 2001 through

June 30, 2006 agreement. In 2002, RNs were added to the overall unit after voting for

such inclusion in a State-administered election. In 2004, a decertification petition was

8 These dispatch centers are called RedCom, BayCom, SacCom and LifeCom. Prior to June 2011,RedCom provided dispatch services for the Employer's Sonoma County operations; BayCorndispatched its 9- 1 -I /IFT operations in Santa Clara, San Mateo, Alameda, Contra Costa and SanFrancisco Counties; SacCom dispatched for 9-1-1/IFT services in Sacramento, Yolo, Placer and ShastaCounties; and LifeCom dispatched for 9-1-1/IFT services in Stanislaus and San Joaquin Counties.Employees working in the dispatch centers have been overseen by the same general manager whooversees the 9-1-1 and IFT operations in the county where the dispatch office is located. The directsupervision of dispatch operations has been by operations managers and/or supervisors who report tothe general manager of their county.

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filed in the same unit and NEMSA also filed a representation petition. Both petitions

were consolidated for hearing and one of the issues litigated by the parties was the

appropriateness of the unit. 9 On July 23, 2004, the Acting Regional Director of Region

32 issued a Decision and Direction of Election, finding that the petitioned-for single

multi-location contractual unit was an appropriate unit for collective-bargaining

purposes. 10 The first election ordered by the Acting Regional Director was set aside

based on the stipulation of the parties; a second election was subsequently set aside by the

Board in its Decision and Direction of Third Election, because no Sonotone election had

been accorded the RNs in the unit. 11 Pursuant to the Board's Decision, a third election

was conducted and pursuant to the results of that third election, NEMSA was certified on

October 31, 2005, as the exclusive collective-bargaining representative of the

approximately 2400 employees in the unit, including the RNs, who had voted in a

Sonotone procedure to be included in the historical unit with the non-professional

employees.12

9 Cases 32-RD-1450 and 32-RC-5234.

10 1 take administrative notice that the Decision and Direction of Election in those cases, which isincluded in the instant record, indicates that in that proceeding, the Employer and Petitioner NEMSAtook the position that the only appropriate unit was the contractual single multi-location unit, andIncumbent, SEIU Local 250, contended that the only appropriate units were separate county-wide units.In his Decision, the Acting Regional Director concluded that the contractual single multi-locationhistorical unit was an appropriate unit based on legal principles relating to decertification elections, thestrong presumption of the appropriateness of historical units, as well as his application of applicablecommunity of interest criteria. In the latter regard, he found that the employees in the historical unithad been subject to the same labor policies and procedures; had similar job duties and common wagesand benefits; and that interchange existed at least among employees in certain counties. (See Decisionat page 10.)

11 American Medical Response, Inc., 344 NLRB 1406 (2005).

12 The certified unit in Cases 32-RC-5234 and 32-RD-1450, was modified from the contractual unit as aresult of amendments made by the parties to more accurately reflect the unit composition at the time ofthe hearing. The certified unit in Case 32-RC-5234 is as follows:

The Northern California employees of American Medical Response, including: Allfull-time and regularly scheduled part-time EMT-l's, EMT-2's, EMT-P's, drivers,wheelchair van drivers, dispatchers, system status controllers, call takers, pre-billers,and billers (except for pre-billers and billers in Stanislaus, San Francisco,Sacramento, Shasta and San Joaquin Counties) including bargaining unit personnelserving as acting supervisors in the following counties: Monterey, Tulare, SantaCruz, Santa Clara, San Mateo (except EMT-P's covered in a separate agreement);

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The unit covered under the most recent collective-bargaining agreement between

NEMSA and the Employer, effective July 1, 2008 to June 3 0, 2011 (Agreement),

essentially covers the same certified unit. 13 At the time of the filing of the petition in the

Stanislaus (excluding Turlock Operations), Alameda, San Francisco, Contra Costa,San Joaquin (excluding Tracy Operations), Calaveras, Marin, Solano, Sonoma, Yolo,Sacramento, Placer and Shasta. In addition, all full-time and regularly scheduledpart-time clerk I's, clerk 2's, stockers, washers, couriers and schedulers in thefollowing counties: Santa Clara, Alameda, Contra Costa, San Mateo, Stanislaus(vehicle service technician only) and Tulare (clerk I's and clerk 2's only). Alsoincluding: all full-time and regularly scheduled part-time CCTs and EMT/CCT's inAlameda, Contra Costa, San Mateo and Yolo Counties: paramedic/CCT's in ContraCosta, Monterey, Placer, Sacramento, San Joaquin, Calaveras, and Santa ClaraCounties; mail room clerks in Alameda County; dispatchers and call takers inModesto and Sacramento dispatch centers, EMT I's and paramedics in San BenitoCounty; vehicle service technicians (VST) in Contra Costa, San Joaquin, Calaveras,San Mateo and Santa Clara Counties,; gurney van drivers in Sacramento County, pre-billing representatives and technicians in San Mateo county; and service receiptprocessor/pre-billers in Santa Clara County employed by the Employer; also includedare all full-time and regularly scheduled part-time registered nurses (RNs) employedby American Medical Response, Incorporated in Northern California, including allCCT/RNs in Alameda, Contra Costa, Monterey, Sacramento, Santa Clara, andSonoma Counties; excluding all other professional employees, all Advanced LifeSupport (ALS) paramedics in Tracy, Turlock and San Mateo County, all otherpersonnel including guards and supervisors as defined by the National LaborRelations Act, as amended.

13 The recognition clause set forth in the most recent Agreement sets forth the unit (Unit) as follows:

All full-time and regularly scheduled part-time employees in Northern California, including:

EMT- Is, EMT-2s, EMT-Ps, Drivers, Wheelchair Van Drivers, Paramedic CCTs, EMTCCTs, Gurney Van Drivers (Sacramento only), and RNs in Alameda, Contra Costa,Calaveras, Marin, Monterey, Placer, Sacramento, San Benito, San Francisco, SanJoaquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Solano, Sonoma, Stanislaus, Tulareand Yolo Counties.

Dispatchers, Call-takers, System Status Controllers in Monterey, Santa Clara,Sacramento, San Mateo (BayCom), Sonoma (RedCom) and Stanislaus (LifeCom)Counties.

Pre-billers, Billers, Clerk Is, Clerk 2s, Stockers, Washers, Vehicles Service Technicians,Mailroom Clerks (Alameda only), Couriers, Deployment Coordinators and Schedulers inAlameda, Contra Costa, San Mateo, Santa Clara, Stanislaus (Vehicle Service Technicianonly) and Tulare (Clerk Is and 2s only), Service Receipt Processor/Pre-Billers (SantaClara County) and Facilities Coordinators (Santa Clara and Stanislaus only).

Excluding EMT- 1 s and EMT-Ps in Tracy and Turlock, EMT-Ps in San Mateo County,and all other personnel, including guards, professional employees and supervisors asdefined by the National Labor Relations Act, as amended.

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instant case, NEMSA and the Employer had been in negotiations for a successor contract

but had not reached final agreement. 14 No party contends that there is a contract bar to

these proceedings.

The Employer's Loss of Substantial Business. In September 2010, the

Employer lost its contract with major IFT client, Stanford/Lucille Packard Children's

Hospital (Stanford), located in Santa Clara County. 15 In about February 2010, the

Employer learned that it would lose its 9-1 -1 contract for Alameda County effective

November 1,16 and in mid-December 2010, the Employer learned that it would lose its 9-

1 -1 contract with Santa Clara County as of July 1. The Alameda and Santa Clara County

contracts were the Employer's largest 9-1 -1 contracts in California and accounted for

about 500 jobs and a quarter of the Employer's revenue in the State of California.

The Employer's Restructuriniz of its Business Operations. In response to the

major loss of business described above, as well as other market factors affecting its Bay

Area operations, 17 the Employer decided to consolidate its business operations in four

Bay Area counties (i.e., San Mateo, Santa Clara, Alameda and Contra Costa).

Specifically, having sustained the loss of the Stanford IFT contract and the 9-1-1

contracts for Santa Clara and Alameda Counties, the Employer decided to consolidate its

remaining IFT business in these two counties with its IFT contracts in San Mateo and

Contra Costa Counties, and place them under a new regional division, called Bay Area

14 The Agreement was extended by NEMSA and the Employer to October 2 1.

15 The Stanford contract represented about half the Employer's IEFT business in Santa Clara County. As aresult of losing the Stanford contract, approximately five EMTs transferred into other Employeroperations but apparently no employees were laid off.

16 The 9- 1 -1 contract for Alameda County was awarded to a company called Paramedics Plus and theSanta Clara 9-1 -1 contract was awarded to a company called Rural Metro. Because of worker retentionprovisions contained in county 9-1 -1 contracts, employees of the Employer within its Alameda andSanta Clara County 9-1 -1 operations, were given the option of going to work for the new companytaking over the 9- 1 -1 contract in the county where they had been employed.

17 Other factors considered by the Employer in restructuring its IIFT operations in these Bay Area countiesincluded the high concentration of clients in the area; the regional nature of client operations; the highlycompetitive nature of the IFT market; and the decline in revenue sustained by the Employer in the BayArea IFT market. Specifically, in the latter regard, the Employer viewed its own historical county-based model for delivery of IIFT services as being partially responsible for its decline in business withinthe Bay Area market because client needs were regional rather than county in nature.

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IFT, which would handle only IFT operations. Bay Area fFT was to be further divided

into two subdivisions: South Bay EFT and East Bay IFT. The Employer also consolidated

CCT and client services for these four counties into Bay Area EFT. Management over

Bay Area EFT was to be handled on a more centralized regional level, as described more

fully below. In addition, the Employer's plan called for Bay Area EFT to have its own

development and accounts payable personnel and medical director. Bay Area IFT was to

stand as a separate profit and loss unit and have its own separate deployment centers and

a new orientation/training program. The Employer's plan also called for new uniforms

and ambulances re-branded for use by the new division.

In early 2011, the Employer approached NEMSA with its reorganization plan and

announced its plan to employees in the four affected counties. The plan did not call for

changes in the wages and benefits and other working conditions applicable to employees

covered under the Agreement except in certain limited regards. Specifically, the

Employer and NEMSA agreed to waive and/or modify certain provisions in the

Agreement affecting seniority lists and bid and transfer provisions, as they applied to

employees within the four counties affected by the consolidation. These modifications to

the Agreement were made in order to facilitate the transfer of employees covered under

the Agreement into the new division. In addition, the Employer and NEMSA agreed that

certain employees in the counties of San Mateo and Contra Costa, who wanted to transfer

into Bay Area IFT, would be allowed to bid and work on overtime 9-1 -1 shifts in their

home counties after their transfers.

Transfers & New Hires Into Bay Area IFT. In the spring of 2011, unit

employees bid on shifts within Bay Area IFT. They were not required to complete job

applications or to interview for such positions except to the extent they desired to work as

lead persons (alternate s' ervisors). 18 It appears fi7om the record that about 320 of the

400 Bay Area IFT positions were filled by employees from the Employer's county

operations within the historical unit covered by the Agreement who transferred into the

18 The Employer interviewed employees who desired to work as alternate supervisors and also gave them

special training for the position. As noted above, the parties have stipulated, and I find, that alternate

supervisors are not statutory supervisors under the Act.


new division. The Employer also hired approximately 80 new employees for Bay Area

EFT. These new hires were required to file job applications and be interviewed as part of

the hiring process.

Temporary Transfers Into Bay Area IFT. Bay Area IFT General Manager, Gil

Glass, testified with regard to future permanent and temporary transfers involving Bay

Area EFT, that the Employer intended to continue to operate under the terms of the

Agreement and that the Employer had no plans to prohibit future transfers between Bay

Area IFT and its other Northern California operations. 19 The record shows that during the

spring and summer of 2011, the Employer utilized approximately 40 to 50 out-of-county

employees to temporarily fill shifts in Bay Area EFT. Although the Employer's use of

out-of-county employees declined as the new division became more fully staffed, the

Employer was still utilizing about seven or eight out-of-county employees to perform

temporary work in the new division at the time of the hearing. The record further shows

that the Employer agreed to waive restrictions contained in the Agreement in order to

allow employees from certain counties who had transferred into the new division to

continue to bid on and work 9-1 -1 shifts in their home counties.

Current Status of Employer Operations. Bay Area EFT officially came into

existence about June 12. In July, the Employer merged its Northern California Region

with its Southern Cali fornia-Hawaii Regions and created a new Western Region. As

indicated above, at the same time the Employer was consolidating its operations, it

continued to provide 9-1 -1 services to Santa Clara County until July 1, and to Alameda

County until November 1.

The testimony of Employer witnesses is to the effect that since the end of the

Alameda County 9-1 -1 contract on November 1, the Employer has essentially operated

under two divisions, one being Bay Area EFT (South Bay and East Bay Operations), and

the other comprised of the remainder of its operations in Northern California, most of

'9 The testimony of Gil Glass and South Bay IFT Operations Manager, Daniel Franklin, indicate thatunder the Agreement, out-of-county employees are treated as employees of "last resort" for staffmgovertime shifts, meaning that they could be assigned to such shifts only after the Employer hadexhausted all of its internal processes to staff such shifts.

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which are in counties outside the Bay Area. 20 One notable exception is San Francisco

County, a Bay Area county not included in Bay Area IFT, where the Employer continues

to provide 9-1 -1 and IFT services within a county-based operation. 21 Another exception

is the Employer's EFT operations in Marin County, which also continue to be operated

separately from Bay Area IFT. 22 ,

As indicated above, about 400 employees work within Bay Area IFT in

classifications set forth in the Agreement, and about 1200 employees covered under the

Agreement work in the remaining county operations left unaffected by the creation of Bay

Area EFT.

Current Management & Supervision. As a result of the 2011 consolidation of

the Employer's Northern California Region with its Southern California-Hawaii Region,

Tom Wagner became the Employer's new CEO over the Western Region, which

includes, in relevant part, both Bay Area IFT and all other Employer operations in

Northern California. Gil Glass became the new general manager of Bay Area IFT

responsible for operations/transportation services, and Jerry Souza became the new

20 The largely unaffected county operations in areas outside of the Bay Area include those in thefollowing counties: Sonoma, San Joaquin, Yolo, Shasta, Stanislaus, Sacramento, Placer and TulareCounty. The Employer also provides services in Monterey County, but the employees in that countyhave not been covered under the Agreement, but rather under a collective-bargaining agreement with adifferent Union, the International Association of Firefighters.

21 The record reflects that the Employer has made no changes in its operations within San FranciscoCounty because of pending litigation which may affect such operations within the coming months.

22 The record shows that the Employer has apparently contemplated bringing into Bay Area IFT othercounty operations, such as those in Marin and Solano Counties, but the record is insufficient to showthat this transition has actually occurred. In Marin County most of the services provided by theEmployer were IFT/CCT services even prior to the formation of the Employer's new division. TheEmployer's only 9- 1 -1 operations in Marin have been as backup to the local fire department, which hasbeen the primary provider of 9-1 -1 service in that county for several years. The Employer also handlessome IFT work in Solano County. The record does not clearly establish whether a "North BayOperation," comprised of Marin and Solano Counties has been included in Bay Area IFT. AlthoughCEO Wagner testified that the North Bay Operations (comprised of Marin and Solano CountiesIFT/CCT operations) had been included in the new division, the record contains other testimony to thecontrary. For example, the testimony of Paramedic/NEMSA Chief Shop Steward Douglas Jones, whoworks in Marin County, indicates that the Employer's plan to include Marin in Bay Area IFT was neverimplemented, apparently because of objections raised by NEMSA. Further, as described in the record,the bid for positions in Bay Area IFT did not include Marin or Solano Counties. Lastly, in its brief, theEmployer does not appear to contend that any counties other than the four described herein arecurrently part of Bay Area IFT.

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general manager of Bay Area IFT responsible for Client and CCT services. 23 Reporting

to these general managers are two operations managers, Daniel Franklin (South Bay

24Operations/Bay Area IFT) and Jason Sampson (East Bay Operations/Bay Area IFT) .

Within Bay Area EFT, the Employer eliminated the intermediate supervisory position of

operations supervisors or field supervisors, and created a new lead person ("alternate

supervisor") position, which is comprised of unit employees, such as EMTs, who are part

of ambulance crews and who also act as shift crew leaders. As indicated above, the

parties have stipulated, and I find, that the alternate supervisors are not supervisors within

the meaning of the Act.

Changes In Policies. Operations Manager Daniel Franklin testified that the

Employer has issued new policies only applicable to Bay Area IFT employees. Such

policies have been taken from existing corporate and local policies, the latter of which

were modified to remove 9-1 -1 county requirements no longer applicable to the solely

IFT operation of the new division. The new policies for Bay Area IFT are included in the

record. However, it is unclear from the record to what extent such new policies have

been disseminated or implemented by the Employer. Thus, Witness Nissa Guerrero, an

Employer Field Training Officer/EMT (Bay Area IFT/South Bay), testified that although

she is responsible for conducting training for new employees in Bay Area IFT, she had

not been apprised of any new policies, and had continued to teach new hires the Santa

Clara County policies in existence prior to the creation of the new division. Further, the

record does not disclose whether the new Bay Area IFT policies differ significantly to

policies applied to IFT employees in other county operations.

Changes in Deployment Centers/Offices for Bay Area IFT. The record reflects

that the Employer has been in the process of establishing separate deployment

centers/office locations for its Bay Area IFT. Currently, its South Bay Operations are

23 Gil Glass was previously the general manager for IFT and 9-1-1 operations in Santa Clara, Santa Cruzand San Benito Counties. Jerry Souza was formerly the Employer's general manager for the CCT unitin San Francisco and Marin Counties.

24 Franklin had previously been the operations manager of the Santa Clara County 91 I/LFT operation andSampson had been the director of communications for BayCom.

-14-


primarily based at a facility in San Jose with a smaller ambulance deployment center

located in Burlingame. However, as of the date of the hearing, the Employer still

deployed some of its Bay Area IFT ambulance crews out of its 9-1 -1 facility in San

Mateo. East Bay Operations for Bay Area IFT shared the same office used by 9-1 -1

operations in Contra Costa County until about November 1, when the Employer re-

located its Bay Area IFT office into an office next door to its Contra Costa County 9-1 -1

office. Bay Area IFT/East Bay Operations also apparently deploys ambulance crews out

of facilities in Oakland and Richmond, California.

Changes in Dispatching. As of November 2011, the same four dispatch centers

were still being utilized by the Employer, apparently housed at the same locations, but

some changes had been implemented regarding the dispatch areas assigned to two of the

dispatch centers. Thus, while the dispatch area for LifeCom and RedCom remain the

same, BayCom currently services only Contra Costa 9-1 -1 and San Francisco 9-1 -I /IFT;

and SacCom now services Bay Area IFT, but also continues to service the Employer's 9-

I-I/IFT operations in Sacramento, Yolo, Placer and Shasta Counties.

Financial Restructurin : The record reflects that the Employer has separated or

is in the process of separating the financial management of Bay Area IFT from that of its

other county-based 9-1 -1 and IFT operations.

Scheduling Changes. The record shows that the Employer has created a separate

scheduling office for Bay Area IFT and has posted new shifts for employees within the

new division. The testimony of Nissa Guerrero, a Field Training Officer/ENT in Bay

Area IFT/South Bay, indicates that the shifts in the new division do not differ

significantly from the shifts in the Employer's Santa Clara County operations prior to the

creation of the new division.

Changes in Posting Locations of Ambulances. With regard to the posting of

ambulances and their crews, the record reflects that employees in Bay Area IFT are

posted near IFT client locations, rather than being posted at locations controlled by 9-1 -1

business, as is generally the case for most operations outside the new division.

Chanp-es in Ambulances and Uniforms. The record indicates that part of the

Employer's plan for Bay Area IFT is to create a new appearance for its ambulances and to

-15-


have Bay Area IFT employees wear different uniforms in order to make its operation

more noticeable to clients and the public. However, the record does not show how fully

these changes had been implemented as of the time of the hearing.

Conditions Unchanged By the Creation of the New Division. Except for

operations in the four counties consolidated into Bay Area EFT, Employer operations and

employee working conditions have remained largely unaffected by the formation of the

new division. IFT and 9-1 -1 operations in the counties not consolidated into Bay Area

IFT, have continued to function in the same manner as they did before the consolidation.

Thus, the record does not show that there have been any significant changes in the

administration, management, supervision, classifications, job duties, work, contract

terms, and other terms and conditions of employment for employees in these counties,

who comprise about 1200 out of the 1600 employees in the petitioned-for unit.

Common Classifications, Training, Oualffications, Skills and Work Duties.

With the exception of differences in the alternate supervisor position within and outside

of the new division, the classifications, training, qualification and skills of employees

working within and outside of Bay Area EFT appear to be substantially the same. Thus,

all of the Employer's county operations outside of Bay Area IFT continue to have IFT

operations. Employees working within IFT operations both inside and outside the new

division are in the same classifications and perform the same IFT transport and medical

service duties. The only differences in their duties appear to be that EFT employees

outside of Bay Area EFT perform more 9-1 -1 work, and IFT employees inside Bay Area

IFT appear to have more responsibility for public relations and sales. However, in the

latter regard, I note that IFT employees outside of Bay Area IFT have been offered

financial incentives to encourage them to develop new EFT business.

Although the Employer has an alternate supervisor position within Bay Area IFT,

its operations outside Bay Area IFT have also had an alternate supervisor position, also

filled by bargaining unit employees, albeit with different duties. Thus, as described

herein, alternate supervisors within Bay Area IFT are crew lead persons on particular

shifts while alternate supervisors outside of Bay Area IFT fill in for supervisors as

-16-


needed. The parties stipulated, and I find, that none of the alternate supervisors are

statutory supervisors.

Common Wa2es, Benefits & Other Terms & Conditions of Employment. The

record shows that with few exceptions, the wages, benefits and other terms and

conditions of employment of employees working both within and outside of Bay Area

IFT are substantially the same. Thus, the record shows that the Employer has continued

to abide by the terms of the Agreement with regard to employees in unit classifications in

the new division. Other than the Employer and NEMSA agreeing to waive and/or modify

certain provisions in the Agreement in order to facilitate the transfer of unit employees

into Bay Area IFT, and to allow them to continue to work overtime/9-1 -1 shifts in their

home counties after their transfers, the record shows no significant changes with regard to

the application of the terms of the Agreement to employees working in the new division.

Common Personnel Poticies & Human Resources and Payrotl Systems. All

employees working both inside and outside of Bay Area IFT continue to be subject to the

same overall corporate personnel policies and to utilize the same human resources

department and centralized payroll system. As indicated above, according to Operations

Manager Franklin, the Employer has also issued new policies solely for Bay Area IFT

employees, but the testimony of Witness Nissa Guerrero disputes that these new policies

have been disseminated to employees. The record does not show how the new policies

for Bay Area IFT differ from those applicable outside of that division. Lastly, the record

shows that even prior to Bay Area IFT, there existed variations in policies applicable to

different county operations due to differing county regulations.

Management & Supervision. The record establishes that since November 2011,

Bay Area IFT has had its own separate management and supervision from other county

operations. However, the record also shows, as described above, that the different county

operations have long had different general managers and local supervisors with only a

few limited exceptions. The record also shows that management of the Employer's

overall operations in Northern California is under the same CEO.

Functional Integration, Interchange & Contact. Bay Area IFT is within the

same administrative (i.e. Western) division as the remainder of the operations covered

-17-


under the Agreement. It shares not only common overall management but also

dispatching, human resources and payroll services with Employer operations outside the

new division.

With regard to interchange, the record shows that most of Bay Area IFT's staffing

came from employees within the historical unit who transferred into it; that the Employer

relied heavily on inter-county temporary transfers of unit employees in order to staff Bay

Area IFT during its initial months of operation; and that the Employer continues to rely

on such transfers, albeit to a lesser degree. Further, the record shows that the Employer

has no intention of prohibiting future transfers involving Bay Area IFT. Indeed, the

record shows that, the Employer has even agreed to modifications in the Agreement in

order to preserve the ability of certain employees who transferred into Bay Area IFT to

continue to work 9-1 -1 overtime shifts in their home counties.

With regard to contacts between Bay Area IFT employees and employees

working outside of that division, the above-described preservation of the ability of at least

some employees within the new division to continue to work 9-1 -1 shifts in their home

counties shows that contacts will continue to occur to some degree in the foreseeable

future. Other evidence in the record also shows continuing contacts between employees

in Bay Area IFT and other county operations. Thus, the testimony of William Bower, a

paramedic/alternate supervisor/field training officer in the 9-1 -1 operation in Contra

Costa County, shows the changes that have taken place with regard to contacts between

employees working within and outside of Bay Area IFT in his office. Bowers testified

that daily interactions between Contra Costa County 9-1 -1 and Bay Area IFT employees

continued to frequently occur at the Concord office shared by both operations until

November 1, when Bay Area IFT moved into a different office next door to the

Employer's 9-1 -1 office for Contra Costa County. Specifically, prior to that date, EMTs

for both Bay Area IFT and Contra Costa County 9-1 -1 continued to be deployed out of

the same office; used the same parking lot, locker area and time clock; obtained their

supplies fi7om the same location; and had mechanical repairs on their ambulances done by

the same mechanics. Further, Bower testified that EMTs employed by Bay Area IFT and

Contra Costa 9-1 -1 worked within each other's operation prior to November 1. For

_18-


example, in October 2011, employees from both Bay Area IFT and the Contra Costa

County 9-1 -1 operation jointly responded to an emergency involving an Amtrak train

accident. According to Bower, although the frequency of such interactions has

diminished since November 1, contacts have continued to occur with regard to employees

sharing the same parking lot and conferring with each other. He further testified that it

was his understanding that Bay Area IFT employees would continue to assist on 9-1 -1

calls in the future if the Employer lacked sufficient 9-1 -1 units to adequately respond to

such calls.

Lastly, as indicated above, Bay Area FT General Manager Glass testified that the

Employer has no plans to eliminate transfers between Bay Area EFT and its other

operations covered under the Agreement, and will continue to abide by the terms of the

Agreement governing such transfers, thus preserving the continuation of employee

interchange between Bay Area IFT employees and those in the remainder of the Northern

California operations covered under the Agreement.

ANALYSIS

The Employer argues that the consolidation of its IFT operations in four Bay Area

Counties into a single division has destroyed the community of interest between

employees within this division and those in its other Northern California operations and

rendered the historical unit no longer an appropriate unit. The Employer takes the

position that employees within Bay Area EFT must be in a unit separate from employees

in its other Northern California operations covered under the historical unit. Petitioner

and NEMSA take a contrary view and SEIU has taken no position on the issue.

In making unit determinations, the Board's long-standing policy is that a unit need

only be an appropriate unit for collective-bargaining and there is no requirement that a

Petitioner seek the most appropriate unit. Overnite Transportation, 322 NLRB 723

(1996) citing Black & Decker Mfg., 147 NLRB 825, 828 (1964). When an issue of the

appropriateness of a unit is raised, the Board begins with the petitioned-for unit and

considers alternate proposals for units only if the petitioned-for unit is deemed

inappropriate for collective-bargaining purposes. Overnite Transportation, supra, citing

_19-


PJ Dick Contracting, 280 NLRB 150, 151 (1988). The Board generally applies a

46 community of interest" analysis to determine whether employees in a petitioned-for unit

constitute an appropriate unit. Such an analysis includes reviewing such factors as

employee skills and ftmctions; wages and fringe benefits and general working conditions;

degree of functional integration; interchangeability and contact among employees;

common supervision; and history of bargaining. Overnite Transportation, supra at 724;

Canal Carting, 339 NLRB 969 (2003). In applying such community of interest criteria, it

is well-settled that the existence of bargaining history weighs heavily in favor of a finding

that a historical unit is appropriate, and that a party challenging such a unit bears a heavy

burden to show that such a unit is no longer appropriate. See Ready Mix, Inc. 340 NLRB

946 (2003); Canal Carting at 970; Trident Seafoods, 318 NLRB 738 (1995). The Board

will generally not disturb an historical multi-location unit absent compelling

circumstances. Id.

In the instant case, applying the traditional community of interest factors, I find

that the Employer has not met its burden of showing that the historical certified unit is no

longer an appropriate unit. Thus, with regard to employee skills and functions, the record

shows that employees working both inside and outside of the new division are in the

same classifications, requiring the same set of skills, training, and licensing. IFT services

are provided in every county in Northern California covered under the Agreement, and

EMTs, paramedics, RNs, and other employees in those counties perform similar IFT

work as is performed within Bay Area IFT. In sum, I find that any differences with

regard to skills and functions between such employees are insubstantial. Accordingly, I

find that this factor supports a finding that the petitioned-for historical unit is an

appropriate unit.

Second, the wages, benefits and other working conditions of employees both inside

and outside of the new division are similar and are set forth in the Agreement. In addition,

employees both inside and outside of the new division are subject to the same corporate

policies. While Bay Area IFT may have new local policies, the record does not establish

whether these new policies have been disseminated or are significantly different from the

policies applied in other operations. Furthermore, the record shows that there has always

-20-


been some variation in local policies governing operations in different counties. Thus, I

find that this factor also supports a finding that the petitioned-for unit is an appropriate unit.

With regard to functional integration, Bay Area EFT is within the same Western

division as the other Northern California operations covered under the Agreement.

Employees working both within and outside of Bay Area EFT utilize the same human

resources department, dispatch services, and centralized payroll system. Again, this factor

tends to support the petitioned-for unit.

With regard to employee interchange, the record shows that most of Bay Area IFT's

staffing has come from employees within the historical unit who transferred into it; that the

Employer relied heavily on inter-county temporary transfers of unit employees in order to

staff Bay Area EFT during its initial months of operation and continues to rely on such inter-

county transfers; and that the Employer has no intention of prohibiting future transfers

involving Bay Area IFT. Indeed, the record shows that the Employer agreed to modify the

Agreement in order to preserve the ability of certain employees who had transferred into

Bay Area EFT to work 9-1 -1 overtime shifts in their own home counties. The record also

shows that employees working both inside and outside the new division continue to have

contact and interaction with each other, as shown not only by the evidence supporting the

foregoing findings, but also by the testimony of witnesses such as William Bower,

described above. Thus, the factor of interchange also supports a finding that the petitioned-

for unit is an appropriate unit.

With regard to the factor of common supervision, the record shows that the

Employer has created a new regional management structure for the Bay Area EFT that

differs from that of most other counties covered under the historical unit, which typically

have a general manager overseeing each individual county operation. However, Bay Area

IFT is not the only consolidated regional management situation within the Employer's

operations covered under the historical unit; thus, Sacramento, Placer and Yolo Counties

have also been overseen by a single general manager. Moreover, given that there have been

different local managers and supervisors in many counties under the historical unit for the

past decade, I find that the separate management and supervision of Bay Area IFT from

other county operations is not controlling in determining whether its employees share a

-21-


community of interest with employees outside that division. I further note that with regard

to the management of the new division, some of the managers in Bay Area IFT are the same

managers who worked in the counties consolidated into that division. For example, Bay

Area IFT Operations Manager Daniel Franklin was formerly the operations manager of the

Santa Clara County operation. Lastly, Bay Area IFT is overseen by the same CEO as the

rest of the Employer's Northern California operations covered under the Agreement.

Lastly, the decade-long history of collective-bargaining in the historical unit and the

Board certification of this unit in 2005 strongly support a finding that the petitioned-for unit

is an appropriate unit.

In sum, I find that the community of interest factors described above, including

common employee skills and fimctions; common wages and fringe benefits and general

working conditions; functional integration; interchangeability and contact among

employees; common overall management; and a susbtantial history of collective-

bargaining, all support the conclusion that employees in the single historical certified unit

can be an appropriate unit for collective-bargaining purposes. Consequently, I reject the

Employer's position that the only appropriate units are the two separate units urged by the

Employer. 25 In reaching this conclusion, I have carefully considered the cases cited by the26Employer and find that they are not controlling in the instant case. However, my ultimate

25 The Employer argues that the Petitioner's use in its amended petition of the unit description taken from

a tentative agreement between the Employer and NEMSA is inappropriate and cannot be used as

evidence of bargaining history because no final agreement was reached between the Employer and

NEMSA. However, the Employer offered no evidence to dispute that the tentative agreement offered

by Petitioner was, in fact, the tentative agreement reached by NEMSA and the Employer for the unit

recognition language. After examining the petitioned-for unit, which is the same unit as set forth in the

tentative agreement, I fimd that it most accurately reflects the historical unit with the modifications

necessary to account for recent changes in the Employer's operations. Therefore, I conclude that it is

an appropriate unit for collective-bargaining purposes.

26 Thus, the Employer's reliance on Rock-Tenn Co., 272 NLRB 772 (1985), to support its argument that

significant changes in the unit have rendered it inappropriate, is misplaced. Thus, in Rock-Tenn, the

Board's conclusion that an historical two-plant unit was no longer appropriate relied on numerous factors

not present in the instant case, including that the two plants in that case had been sold to separate

corporations; there no longer existed any centralized control over the labor relations for the two plants;

each plant was engaged in a different type of operation; there was no interchange or contact between

employees at the two plants; each plant had separate and distinct corporate and local management; there

existed no job bidding or other interchange of employees between the two plants; and the employees at

each plant had separate wage rates. Further, I find that the Employer's reliance on Western Electric Co.,

-22-


findings regarding what constitutes an appropriate unit in this case must in part be

determined based on the outcome of the Sonotone election to be conducted among the

Employer's RNs. Thus, the parties stipulated, and I find, that the RNs are professional

employees who must be given a Sonotone election. Based on that stipulation, and my

decision that the single historical unit, as modified herein, would be an appropriate unit, my

findings regarding the appropriate unit or units are set forth below.

CONCLUSIONS AND FINDINGS

Based upon the record, I conclude and find as follows:

I ) The Hearing Officer's rulings made at the hearing are free from prejudicial

error and are affirmed.

2) The Employer is an employer as defined in Section 2(2) of the Act, and is

engaged in commerce within the meaning of Sections 2(6) and (7) of the Act, and it will

effectuate the purposes of the Act to assert jurisdiction in this case.

3) Petitioner United Emergency Medical Services Workers, AFSCME, AFL-

CIO is a labor organization within the meaning of the Act.

4) Intervenor/Incumbent National Emergency Medical Services Association

(NEMSA) is a labor organization within the meaning of the Act.

5) Intervenor International Association of EMT'S and Paramedics,

SEI-U/NAGE LOCAL 5000 is a labor organization within the meaning of the Act.

6) A question affecting commerce exists concerning the representation of

certain employees of the Employer within the meaning of Section 9(c)(1) and Sections

2(6) and (7) of the Act.

98 NLRB 10 18 (1952), il arguing that a "checkered" bargaining history in the instant case renders suchhistory of little weight inmaking a unit determining, is likewise misplaced. Thus, the "checkeredbargaining history" referred to by the Board in Western Electric refer-red to the fact that there was nofixed pattern of bargaining among the employees whose unit placement was at issue. By contrast, in theinstant case, the same historical unit has existed for the past decade. Finally, I find no merit to theEmployer's argument that because different unions have represented employees of the Employer withinthe historical unit, collective-bargaining history should be given less weight in making my unitdetermination. Thus, bargaining history is not given weight because the same union has representedemployees over a period of time, but rather because the very existence of a historical unit typicallydemonstrates a strong community of interest among such employees, regardless of the identity of theirrepresentative.

-23-


7) Unit Findings. As indicated above, the parties have stipulated, and I find,

that the RNs within the petitioned-for unit are professional employees entitled to a

Sonotone election. Based on the long-time inclusion of the RNs within the historical unit

and their shared terms and conditions of employment with other employees, I find that the

petitioned-for unit, which includes the RNs with other non-professional employees,

would be an appropriate unit if the RNs choose to be represented in such a unit.

However, if the RNs do not choose to be included with other employees in the petitioned-

for unit, but do choose to be separately represented by one of the unions participating in

the election, I find that the non-professional employees in the historical unit would

constitute an appropriate unit, and a separate professional unit of RNs would constitute an

appropriate unit for collective-bargaining purposes. However, my ultimate determination

of the appropriate unit or units in this case will be based on the outcome of the Sonotone

election to be conducted under the procedures set forth below:

The following employees constitute the proper Voting Groups for conducting a

Sonotone election in this case:

VOTING GROUP A

All full-time and regularly scheduled part-time RNs employed by the

Employer in Alameda, Contra Costa, Marin, Placer, Sacramento, San

Benito, San Francisco, San Joaquin, San Mateo, Santa Clara, Santa Cruz,

Shasta, Solano, Sonoma, Stanislaus, Tulare and Yolo counties, and any

distinct CCT and IFT divisions;

EXCLUDING: All other employees, guards and supervisors as defined bythe National Labor Relations Act, as amended.

VOTING GROUP B

All full-time and regularly scheduled part-time non-professional

employees employed by the Employer in Northern California, including:

EMT-Is, EMT-2s, EMT-Ps, drivers, wheelchair van drivers, paramedic

CCTs, EMT CCTs and gumey van drivers (Sacramento only) in Alameda,

Contra Costa, Marin, Placer, Sacramento, San Benito, San Francisco, San

Joaquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Solano, Sonoma,Stanislaus, Tulare and Yolo counties, and any distinct CCT and IFTdivisions;

-24-


Dispatchers call takers/customer service representatives, system statuscontrollers in Santa Clara, Sacramento, San Mateo (BayCom), Sonoma(RedCom) and Stanislaus (LifeCom) Counties;

Pre-billers, billers, clerk Is, clerk 2s, stockers, washers, vehicle servicetechnicians, mailroorn clerk (Alameda only), couriers, deploymentcoordinators and schedulers in Alameda, Contra Costa, San Mateo, SantaClara, Stanislaus (vehicle service technician only), Tulare (clerk Is andclerk 2s only), and any distinct CCT and IFT divisions, facilitiescoordinators (Santa Clara, Stanislaus and CCT and IFT divisions only);

EXCLUDING: RNs, EMT- 1 s and EMT-Ps in Tracy and Turlock, EMT-Psin San Mateo County and all other personnel, all professional employees,guards and supervisors as defined by the National Labor Relations Act, asamended.

RNs in Votinp- Group A will be asked two questions:

(1) Do you desire to be included with nonprofessional employees in the

following unit:

All full-time and regularly scheduled part-time employees employed bythe Employer in Northern California, including: EMT- I s, EMT-2s, EMT-Ps, drivers, wheelchair van drivers, paramedic CCTs, EMT CCTs, gurney

van drivers (Sacramento only), and RNs in Alameda, Contra Costa, Marin,

Placer, Sacramento, San Benito, San Francisco, San Joaquin, San Mateo,Santa Clara, Santa Cruz, Shasta, Solano, Sonoma, Stanislaus, Tulare and

Yolo counties, and any distinct CCT and IFT divisions;

Dispatchers call takers/customer service representatives, system status

controllers in Santa Clara, Sacramento, San Mateo (BayCom), Sonoma

(RedCom) and Stanislaus (LifeCom) Counties;

Pre-billers, billers, clerk 1 s, clerk 2s, stockers, washers, vehicle service

technicians, mailroorn clerk (Alameda only), couriers, deployment

coordinators and schedulers in Alameda, Contra Costa, San Mateo, Santa

Clara, Stanislaus (vehicle service technician only), Tulare (clerk Is and

clerk 2s only), and any distinct CCT and IFT divisions, facilities

coordinators (Santa Clara, Stanislaus and CCT and IFT divisions only);

EXCLUDING: EMT- 1 s and EMT-Ps in Tracy and Turlock, EMT-Ps in

San Mateo County, and all other personnel, guards and supervisors as

defined by the National Labor Relations Act, as amended.

(2) By which of the following unions, if any, do you wish to be represented

for the purposes of collective bargaining?

-25-


Emergency Medical Services Workers, AFSCME, AFL-CIO

or

National Emergency Medical Services Association

or

International Association of EMT's and Paramedics, SEIU/NAGE Local5000

or

By No Union

If a majority of the RNs in Voting Group A vote "yes" to the first

question, indicating their desire to be included in a unit with nonprofessional

employees, they will be so included. Their vote on the second question will then

be counted together with the votes of the nonprofessional Voting Group B to

determine whether or not the employees in the entire unit wish to be represented

by a union and which of the three unions on the ballot they wish to represent

them.

If, on the other hand, a majority of the RNs in Voting Group A vote

against inclusion in the unit with the nonprofessional employees, they will not be

included with the nonprofessional employees. Their votes on the second question

will then be separately counted to determine whether or not they wish to be

represented by:

Emergency Medical Services Workers, AFSCME, AFL-CIO

or

National Emergency Medical Services Association

or

International Association of EMT's and Paramedics, SEIU/NAGE Local

5000or

By No Union

-26-


My unit determination is thus based, in part, upon the results of the vote by the

RNs in Voting Group A. However, I make the following findings with regard to what

constitutes an appropriate unit or units in this case.

1 . If a majority of the RNs vote for inclusion in the unit with nonprofessional

employees, I find that the following unit is an appropriate unit for the purposes of

collective bargaining within the meaning of Section 9(b) of the Act:

All full-time and regularly scheduled part-time employees employed bythe Employer in Northern California, including: EMT- I s, EMT-2s, EMT-Ps, drivers, wheelchair van drivers, paramedic CCTs, EMT CCTs, gurneyvan drivers (Sacramento only), and RNs in Alameda, Contra Costa, Marin,Placer, Sacramento, San Benito, San Francisco, San Joaquin, San Mateo,Santa Clara, Santa Cruz, Shasta, Solano, Sonoma, Stanislaus, Tulaie andYolo counties, and any distinct CCT and IFT divisions;

Dispatchers call-takers/customer service representatives, system status

controllers in Santa Clara, Sacramento, San Mateo (BayCom), Sonoma(RedCom) and Stanislaus (LifeCom) counties;

Pre-billers, billers, clerk Is, clerk 2s, stockers, washers, vehicle service

technicians, mailroom clerk (Alameda only), couriers, deployment

coordinators and schedulers in Alameda, Contra Costa, San Mateo, Santa

Clara, Stanislaus (vehicle service technician only), Tulare (clerk Is and

clerk 2s only), and any distinct CCT and IFT divisions, facilities

coordinators (Santa Clara, Stanislaus and CCT and IFT divisions only);

EXCLUDING: EMT- Is and EMT-Ps in Tracy and Turlock, EMT-Ps in

San Mateo County and all other personnel, guards and supervisors as

defined by the National Labor Relations Act, as amended.

2. If a majority of the RNs, as professional employees, do not vote for

inclusion in the unit with nonprofessional employees, I find that the following two

groups of employees will constitute separate appropriate units for the purposes of

collective bargaining within the meaning of Section 9(b) of the Act:

UNIT A

All ftill-time and regularly scheduled part-time RNs employed by the

Employer in Northern California in Alameda, Contra Costa, Marin, Placer,

-27-


Sacramento, San Benito, San Francisco, San Joaquin, San Mateo, SantaClara, Santa Cruz, Shasta, Solano, Sonoma, Stanislaus, Tulare and Yolocounties, and any distinct CCT and IFT divisions;

EXCLUDING: All other employees, guards and supervisors as defined bythe National Labor Relations Act, as amended.

UNIT B

All full-time and regularly scheduled part-time non-professionalemployees employed by the Employer in Northern California, including:EMT- Is, EMT-2s, EMT-Ps, drivers, wheelchair van drivers, paramedicCCTs, EMT CCTs and gumey van drivers (Sacramento only) in Alameda,Contra Costa, Marin, Placer, Sacramento, San Benito, San Francisco, SanJoaquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Solano, Sonoma,Stanislaus, Tulare and Yolo counties, and any distinct CCT and IFTdivisions;

Dispatchers call takers/customer service representatives, system statuscontrollers in Santa Clara, Sacramento, San Mateo (BayCom), Sonoma(RedCom) and Stanislaus (LifeCom) Counties;

Pre-billers, billers, clerk Is, clerk 2s, stockers, washers, vehicle servicetechnicians, mailroom clerk (Alameda only), couriers, deploymentcoordinators and schedulers in Alameda, Contra Costa, San Mateo, SantaClara, Stanislaus (vehicle service technician only), Tulare (clerk I s andclerk 2s only), and any distinct CCT and IFT divisions, facilitiescoordinators (Santa Clara, Stanislaus, and CCT and IFT divisions only);

EXCLUDING: RNs, EMT- Is and EMT-Ps in Tracy and Turlock, EMT-Psin San Mateo County and all other personnel, all professional employees,guards and supervisors as defined by the National Labor Relations Act, asamended.

DIRECTION OF ELECTION

The National Labor Relations Board will conduct a secret ballot election by mail

in the above voting groups at a time and place to be set forth in the notice of election to

be issued by the undersigned, subject to the Board's Rules and Regulations.

A. Voting Eligibility

Eligible to vote in the election are those in each of the voting groups units

employed during the payroll period ending immediately before the date of this Decision,

including employees who did not work during that period because they were ill, on

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vacation, or temporarily laid off. Employees engaged in any economic strike, who have

retained their status as strikers and who have not been permanently replaced are also

eligible to vote. In addition, in an economic strike which commenced less than 12

months before the election date, employees engaged in such strike who have retained

their status as strikers but who have been permanently replaced, as well as their

replacements are eligible to vote. Unit employees in the military services of the United

States may vote if they appear in person at the polls.

Ineligible to vote are employees in the voting groups: (1) who have quit or been

discharged for cause since the designated payroll period; (2) striking employees who have

been discharged for cause since the strike began and who have not been rehired or

reinstated before the election date; and (3) employees who are engaged in an economic

strike that began more than 12 months before the election date and who have been

permanently replaced.

Voting procedures are as described above. Pursuant to such procedures, all

eligible employees shall vote whether they desire to be represented for collective-

bargaining purposes by: Emergency Medical Services Workers, AFSCME, AFL-CIO or

National Emergency Medical Services Association or International Association of

EMT's and Paramedics, SEIU/NAGE Local 5000 or by no union. 27

B. Employer to Submit List of Eligible Voters

To ensure that all eligible voters may have the opportunity to be informed of the

issues in the exercise of their statutory right to vote, all parties to the election should have

access to a list of voters and their addresses, which may be used to communicate with

them. Excelsior Underwear, Inc., 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon

Company, 394 U.S. 759 (1969).

Accordingly, it ig hereby directed that within 7 days of the date of this Decision,

the Employer must submit to the Regional Office an election eligibility list, containing

27 If any of the unions who are parties to this proceeding do not wish to represent the RNs in a separate

unit despite their stipulation to a Sonotone election, they must notify the Regional Office of their desire

not to be included on the ballot for this purpose within seven (7) days of the issuance of this decision.

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the full names and addresses of all the eligible voters. North Macon Health Care

Facility, 315 NLRB 359, 361 (1994). The list must be of sufficiently large type to be

clearly legible. To speed both preliminary checking and the voting process, the names on

the list should be alphabetized (overall or by department, etc.). This list may initially be

used by me to assist in determining an adequate showing of interest. I shall, in turn, make

the list available to all parties to the election.

To be timely filed, the list must be received in the Regional Office, National

Labor Relations Board, Region 20, 901 Market Street, Suite 400, San Francisco, CA

94103, on or before January 3, 2012. No extension of time to file this list will be

granted except in extraordinary circumstances, nor will the filing of a request for review

affect the requirement to file this list. Failure to comply with this requirement will be

grounds for setting aside the election whenever proper objections are filed. The list may

be submitted to the Regional Office by electronic filing through the Agency's website,

www.nl KLM ,28 by mail, or by facsimile transmission at (415)356-5156. The burden of

establishing the timely filing and receipt of the list will continue to be placed on the

sending party.

Because the list will be made available to all parties to the election, please furnish

a total of two copies of the list, unless the list is submitted by electronic filing, facsimile

or e-mail, in which case no copies need be submitted. If you have any questions, please

contact the Regional Office.

C. Notice of Posting Obligations

According to Section 103.20 of the Board's Rules and Regulations, the Employer

must post the Notices to Election provided by the Board in areas conspicuous to potential

voters for at least 3 working days prior to 12:01 a.m. of the day of the election. Failure to

follow the posting requirement may result in additional litigation if proper objections to

the election are filed. Section 103.20(c) requires an employer to notify the Board at least

5 full working days prior to 12:01 a.m. of the day of the election if it has not received

copies of the election notice. Club Demonstration Services, 317 NLRB 349 (1995).

28 To file the eligibility list electronically, go to the Agency's website at www.nlrb.gov, select File Case

Documents, enter the NLRB Case Number, and follow the detailed instructions.

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Failure to do so estops employers from filing objections based on nonposting of the

election notice.

RIGHT TO REQUEST REVIEW

Under the provisions of Section 102.67 of the Board's Rules and Regulations, a

request for review of this Decision may be filed with the National Labor Relations Board,

addressed to the Executive Secretary, 1099 14th Street, N.W., Washington, DC 20570-

000 1. This request must be received by the Board in Washington by January 10, 2012.

The request may be filed electronically through the Agency's web site, www.nlrb.gov, 29

but may not be filed by facsimile.

DATED AT San Francisco, California, this the 27 Ih day of December,

2011.

Joseph F. Frankl, Regional DirectorNationaVabor Relations Board, Region 20901 Market Street, Suite 400San Francisco, California 94103-1735

29 To file the request for review electronically, go to www.nirb.gov, select File Case Documents, enter

the NLRB Case Number, and follow the detailed instructions.

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United EMS Workers - Decision and Direction of Election by the NLRB

Documents

Transcript of United EMS Workers - Decision and Direction of Election by the NLRB