Advanced Life Systems, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2016

364 NLRB No. 117 (N.L.R.B. 2016)

364 NLRB No. 117
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Advanced Life Systems, Inc. and International Asso-
ciation of EMT’s and Paramedics. Cases 19–
CA–096464 and 19–CA–096899
August 27, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On May 2, 2014, Administrative Law Judge Michael
A. Rosas issued the attached decision. The General
Counsel and the Respondent both filed exceptions. The
Respondent also filed a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,
1
and conclusions in
part
2
and to adopt the recommended Order as modified
and set forth in full below.
3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We reject the Respondent’s challenges to the authority of the Re-
gional Director and the Acting General Counsel to act in this case. In
doing so, we do not rely on Belgrove Post Acute Care Center, 359
NLRB 633 (2013), and Bloomingdale’s, Inc., 359 NLRB 1015 (2013),
cited by the judge. Instead, we note that the Respondent is incorrect in
asserting that Regional Director Ronald K. Hooks was appointed on
January 6, 2012. Although Regional Director Hooks’s appointment
was announced on January 6, 2012, the Board approved the appoint-
ment on December 22, 2011, at which time it had a quorum.
Regarding the Acting General Counsel’s authority, in its answer to
the complaint, the Respondent raised as an affirmative defense that the
Acting General Counsel was improperly “appointed.” For the reasons
set forth below, we find no merit in that argument. At the outset, we
note that under the Federal Vacancies Reform Act (FVRA), 5 U.S.C.
§§ 3345 et seq., a person is not “appointed” to serve in an acting ca-
pacity in a vacant office that otherwise would be filled by appointment
by the President, by and with the advice and consent of the Sen-
ate. Rather, either the first assistant to the vacant office performs the
functions and duties of the office in an acting capacity by operation of
law pursuant to 5 U.S.C. § 3345(a)(1), or the President directs another
person to perform the functions and duties of the vacant office in an
acting capacity pursuant to 5 U.S.C. § 3345(a)(2) or (3).
On June 18, 2010, the President directed Lafe Solomon, then Direc-
tor of the NLRB’s Office of Representation Appeals, to serve as Acting
General Counsel pursuant to subsection (a)(3)–the senior agency em-
ployee provision. Under that provision, Solomon was eligible to serve
Facts
The issues in this case arose after the National Emer-
gency Medical Services Association (Union) initiated an
organizing campaign among the Respondent’s emergen-
cy medical technicians (EMTs), paramedics, and dis-
patchers in July 2012.
4
The Respondent starts its new
hires at a relatively low wage rate because of the exten-
sive amount of company-specific training required. The
credited evidence shows that, as a result, the Respondent
informed employees upon their hire to expect periodic
wage increases once every 6 months plus Christmas bo-
nus payments. In fact, a substantial majority of employ-
ees received wage increases of at least 25 cents an hour
at least twice a year from August 2009 to January 2012.
In addition, except for 1 year, the Respondent annually
granted Christmas payments to employees ranging in
value from $50 to $500. However, at some point after

as Acting General Counsel at the time the President directed him to do
so. See Hooks v. Kitsap Tenant Support Services, Inc., 816 F.3d 550,
556 (9th Cir. 2016); SW General, Inc. v. NLRB, 796 F.3d 67, 73 (D.C.
Cir. 2015), cert. granted, 136 S. Ct. 2489 (2016). Thus, Solomon
properly assumed the duties of Acting General Counsel and we find no
merit in the Respondent’s affirmative defense that the Acting General
Counsel was improperly “appointed.”
We acknowledge that the decisions in Kitsap and SW General also
held that Solomon lost his authority as Acting General Counsel on
January 5, 2011, when the President nominated him to be General
Counsel. Kitsap, above, at 555; SW General, above, at 78. Although
that question is still in litigation, we find that subsequent events have
rendered moot any argument that Solomon’s alleged loss of authority
after his nomination precludes further litigation in this matter.
On September 25, 2015, General Counsel Richard F. Griffin, Jr., is-
sued a Notice of Ratification in this case that states, in relevant part,

I was confirmed as General Counsel on November 4, 2013. After ap-
propriate review and consultation with my staff, I have decided that
the issuance of the complaint in this case and its continued prosecution
are a proper exercise of the General Counsel’s broad and unreviewa-
ble discretion under section 3(d) of the Act.
My action does not reflect an agreement with the appellate court rul-
ing in SW General. Rather, my decision is a practical response aimed
at facilitating the timely resolution of the charges that I have found to
be meritorious while the issues raised by SW General are being re-
solved. Congress provided the option of ratification by expressly ex-
empting “the General Counsel of the National Labor Relations Board”
from the FVRA provisions that would otherwise preclude the ratifica-
tion of certain actions of other persons found to have served in viola-
tion of the FVRA. (Citation omitted.)
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
In view of the independent decision of General Counsel Griffin to
continue prosecution of this matter, we reject as moot the Respondent’s
affirmative defense challenging the circumstances of Solomon’s “ap-
pointment” as Acting General Counsel.
3 We shall amend the remedy and modify the judge’s recommended
Order to conform to his unfair labor practice findings and conclusions
and to the Board’s standard remedial language. We shall substitute a
new notice to conform to the Order as modified.
4 All dates hereinafter are in 2012 unless otherwise indicated.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees began organizing, but before the August 15-
16 election, the Respondent’s owner and president, Wil-
liam Woodcock, told employee Matthew Schauer that
“he wasn’t for us going with the Union” and that the Re-
spondent “would not be able to give us raises if we
brought a union in.”
The Union won the election, and on August 24, the
Board’s Regional Office certified it as the unit employ-
ees’ exclusive collective-bargaining representative.
Thereafter, the Respondent unilaterally discontinued
granting unit employees wage increases of at least 25
cents an hour approximately every 6 months and Christ-
mas payments yearly. In December, employee Lenny
Ugaitaga asked Woodcock why he had not received his
expected pay raise. Woodcock responded that his lawyer
had advised him that he needed to freeze employees’
terms and conditions of employment, including pay rais-
es, “because of the whole Union deal.” In January 2013,
Schauer and fellow employee Cole Gravel questioned
Woodstock about why the Respondent had stopped
granting pay raises since employees unionized. The two
employees explained that they understood it was to be
business as usual until contract negotiations had con-
cluded. Woodcock replied that the pay raises had been
discretionary prior to the election, but the Respondent
now had to negotiate them with the Union.
Discussion
I. 8(a)(1) and (3) Allegations
We agree with the judge that the Respondent violated
Section 8(a)(1) by making coercive statements to unit
employees before and after the representation election
about discontinuing the periodic wage increases and
Christmas payments.
5
The judge found, and we agree,
that the Respondent also violated Section 8(a)(3) and (1)
by discontinuing the wage increases and Christmas pay-

5 We find, in agreement with the judge, that the Respondent violated
Sec. 8(a)(1) by telling unit employee Schauer that the Respondent
would be unable to give wage increases if unit employees voted for the
Union. In doing so, however, we do not rely on the judge’s citation
to Milum Textile Services Co., 357 NLRB 2047 (2011); no party ex-
cepted to the relevant finding in that case and therefore the issue was
not before the Board. Instead, we rely on Twin City Concrete, Inc., 317
NLRB 1313, 1318 (1995) (implied threat to withhold wage increases
where employer told employees that it would have to negotiate over
promised wage increases if the union won the election). For the same
reason, although we agree with the judge that the Respondent unlawful-
ly stated in December 2012 that the Respondent could not give a raise
“because the Union was there” or “because of the whole Union deal,”
we do not rely on the judge’s citation to First Student, Inc., 341 NLRB
136 (2004), and Illiana Transit Warehouse Corp., 323 NLRB 111
(1997). We find it unnecessary to pass on the judge’s finding that the
Respondent violated Sec. 8(a)(1) in January 2013 by telling employees
that he did not need to give wage increases during contract negotia-
tions, because it does not affect the remedy.
ments because of unit employees’ union activity. An
employer violates Section 8(a)(3) and (1) if it withholds
promised wage increases for discriminatory reasons re-
gardless of whether it had an established practice of
granting such wage increases in the past. See KAG-West,
LLC, 362 NLRB No. 121, slip op. at 3 & fn. 10 (2015);
Arc Bridges, Inc., 362 NLRB No. 56, slip op. at 5 (2015)
(employer violated Section 8(a)(3) and (1) by withhold-
ing wage increase from represented employees because
they chose to unionize). In KAG-West, LLC, above, the
Board explained the underlying principle: an employer
may not punish employees for selecting union represen-
tation by denying them planned increases. See Alumi-
num Casting & Engineering Co., 328 NLRB 8, 16
(1999), enfd. in relevant part and remanded 230 F.3d 286
(7th Cir. 2000).
The credited evidence shows that the Respondent as-
sured employees, upon being hired, that they would re-
ceive periodic wage increases and Christmas payments
and, in fact, regularly granted them. However, after the
Union won the election, the Respondent ceased provid-
ing unit employees the periodic wage increases and
Christmas payments. In determining whether the Re-
spondent’s conduct violated Section 8(a)(3) and (1), we
agree with the judge that the appropriate analytical
framework is Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983). We further agree with
the judge that the General Counsel satisfied his initial
burden under Wright Line by showing union activity by
the employees, employer knowledge of that activity, and
union animus on the part of the employer. See Mesker
Door, Inc., 357 NLRB 591, 592 & fn. 5 (2011).
6
There
is no dispute that the Respondent knew that employees
had engaged in union activity. In finding that the Re-
spondent demonstrated union animus, we rely on the
Respondent’s contemporaneous 8(a)(1) violations. See
Lucky Cab Co., 360 NLRB No. 43, slip op. at 4 (2014).
In addition to showing animus generally, these inaccurate
statements directly linked discontinuance of the wage
increases with employees’ unionization. Specifically,
before the election, Woodcock told employees that the
Respondent would be unable to give the periodic wage
increases if employees voted for union representation.
After the election, Woodcock again linked the employ-
ees’ decision to unionize with the Respondent’s discon-
tinuance of the wage increases, stating that it could not

6 Contrary to the judge’s suggestion, however, it is not necessary for
the General Counsel to also show as an element of the initial burden a
connection, or nexus, between the employer’s union animus and the
adverse employment actions. Ibid.
ADVANCED LIFE SYSTEMS, INC. 3
give raises “because the Union was there” or “because of
the whole Union deal.” The Respondent made these
statements aware that they could have an impact on em-
ployees’ support for the Union. This evidence amply
supports the inference that the Respondent’s motivation
for not providing the promised periodic wage increases
and the Christmas payments was employees’ union activ-
ity in selecting the Union as their bargaining representa-
tive.
We also agree with the judge that the Respondent
failed to meet its rebuttal burden under Wright Line. As
found by the judge, the Respondent’s purported justifica-
tions about increased competition and health insurance
costs and decreased governmental reimbursement rates
were clearly pretextual. These vague explanations were
not supported by any corroborating testimony or docu-
mentary evidence. Our dissenting colleague contends
that the Respondent ceased granting the periodic wage
increases and Christmas payments because Woodcock
reasonably believed that the Respondent was required to
bargain over them and had to discontinue granting them
during negotiations. But even if Woodcock reasonably
believed this was the case, the burden is on the Respond-
ent to show that it would not have granted the wage in-
creases and Christmas payments absent employees’ un-
ion activity. See Chinese American Planning Council,
Inc., 307 NLRB 410, 414 (1992) (employer violated Sec-
tion 8(a)(3) by failing to grant periodic wage increases to
employees despite its assertion that doing so would have
violated its contract with a municipal agency), review
denied mem. 990 F.2d 624 (2d Cir. 1993). However,
instead of showing that the Respondent would have dis-
continued the wage increases and Christmas payments
absent employees’ union activity, the evidence shows the
opposite. In multiple statements to employees, the Re-
spondent admitted that, as a consequence of employees’
union activity, it was withholding future wage increases
and Christmas payments from them. Moreover, even
assuming that the dissent accurately characterizes Wood-
cock’s belief, this does not excuse the Respondent’s
withholding of the wage increases and Christmas pay-
ments. The Respondent could have lawfully granted
them without violating its duty to bargain if it had pro-
posed doing so to the Union, and if the Union agreed.
See Arc Bridges, 362 NLRB No. 56, slip op. at 5 & fn.
18.
7
Accordingly, we agree with the judge that the Re-
7 That is exactly what transpired in December 2013. The Respond-
ent informed the Union that it believed that it was appropriate to in-
crease the wages of several employees. The Union responded that it
would not oppose the wage increases but that it wanted to discuss them.
Contrary to the dissent’s contention, we are not finding that the Re-
spondent’s failure to grant the wage increases proves antiunion discrim-
spondent violated Section 8(a)(3) and (1) by discontinu-
ing the wage increases and Christmas payments because
of employees’ union activity.
8

II. 8(a)(5) Christmas Bonus Allegation
We agree with the judge that the Respondent had an
established practice of granting annual Christmas pay-
ments, and that the Respondent violated Section 8(a)(5)
and (1) by unilaterally discontinuing this practice.
9
For a
number of years prior to the union election, the Respond-
ent granted Christmas payments to unit employees. By
discontinuing the Christmas payments after employees
selected the Union as their bargaining representative, the
Respondent unlawfully instituted a unilateral change to
employees’ terms and conditions of employment without
first bargaining to a valid impasse. See Covanta Energy
Corp., 356 NLRB 706, 706 fn. 1 (2011).
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order the Respondent to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally changing unit
employees’ terms and conditions of employment, specif-
ically its practice of granting Christmas payments every
year, without prior notice to the Union and without af-
fording the Union an opportunity to bargain, we shall
order the Respondent to rescind this action, and retroac-
tively restore the status quo ante, until the Respondent
ination. As described above, the General Counsel demonstrated unlaw-
ful motive by satisfying its initial burden under Wright Line. Instead of
merely informing employees about its view of the Act’s prohibition on
unilateral action, as suggested by the dissent, the Respondent told em-
ployees prior to the election that a promised benefit would be withheld
from them because of their union activity. The Respondent then reiter-
ated, after employees voted for the Union, that it was withholding their
promised benefit because of their union activity. Nonetheless, the
Respondent had the opportunity to rebut the General Counsel’s show-
ing but failed to do so.
8 Because it would not materially affect the remedy, we find it un-
necessary to pass on the judge’s additional finding that the Respondent
violated Sec. 8(a)(5) and (1) by unilaterally discontinuing an estab-
lished practice of granting periodic wage increases to employees. Ac-
cordingly, we see no need to address our dissenting colleague’s inter-
pretation of NLRB v. Katz, 369 U.S. 736 (1962), or his application of it
to the facts of this case.
9 In finding that the Christmas payments were wages, and therefore a
mandatory subject of bargaining, we do not rely on the judge’s finding
that the payments were given only to those employees who attended the
Respondent’s Christmas party. In fact, the judge declined to credit the
assertion by William Woodcock, the Respondent’s co-owner, that
employees had to be present at the Christmas party to receive the
Christmas payment.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
negotiates in good faith with the Union to agreement or
to impasse.
Having found that the Respondent violated Section
8(a)(3) and (1) by discriminatorily denying employees
periodic wage increases and Christmas payments every
year, we shall also order the Respondent to make unit
employees whole for any loss of earnings and other ben-
efits suffered as a result of the unlawful discrimination
against them. Backpay shall be computed as in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), plus interest as prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Cen-
ter, 356 NLRB 6 (2010). In addition, we shall order the
Respondent to compensate unit employees for any ad-
verse tax consequences of receiving a lump-sum backpay
award and to file, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order,
a report with the Regional Director for Region 19 allo-
cating the backpay awards to the appropriate calendar
years for each employee. AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016).
10

ORDER
The National Labor Relations Board orders that the
Respondent, Advanced Life Systems, Inc., Yakima,
Washington, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Telling employees that they will not get raises if
they choose, or because they have chosen, to be repre-
sented by a union.
(b) Refusing to give unit employees wage increases
because they chose to be represented by a union.
(c) Refusing to give unit employees their traditional
Christmas payments because they chose to be represent-
ed by a union.
(d) Unilaterally ceasing to grant established Christmas
payments to unit employees.
(e) Discontinuing its custom and practice of granting
unit employees Christmas payments because unit em-
ployees chose to be represented by a union.
(f) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

10 The judge recommended, without setting forth any supporting ra-
tionale, that the Board impose a broad order requiring the Respondent
to cease and desist from violating the Act “in any other manner.” We
find that a broad cease-and-desist order is not warranted under the
circumstances of this case, and substitute a narrow order requiring the
Respondent to cease and desist from violating the Act “in any like or
related manner.” See Hickmott Foods, 242 NLRB 1357 (1979).
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:

All full-time, regular part-time and per diem EMTs,
paramedics and dispatchers employed by the Respond-
ent out of its Yakima, Washington facilities, but ex-
cluding all other employees, maintenance employees,
and guards and supervisors as defined in the National
Labor Relations Act.

(b) On request of the Union, rescind the unilateral
changes in terms and conditions of employment and re-
store the status quo ante with regard to its established
practice of granting Christmas payments every year, until
such time as the Respondent and the Union reach an
agreement for a new collective-bargaining agreement or
a lawful impasse based on good-faith negotiations.
(c) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful discrimination against them, in the manner set forth in
the amended remedy section of this decision.
(d) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful unilateral change, in the manner set forth in the
amended remedy section of this decision.
(e) Compensate affected employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 19,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its six facilities in Yakima, Washington, copies of the
attached notice marked “Appendix.”
11
Copies of the

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ADVANCED LIFE SYSTEMS, INC. 5
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, the notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 2012.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 19 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 27, 2016

______________________________________
Mark Gaston Pearce, Chairman

______________________________________
Kent Y. Hirozawa, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

MEMBER MISCIMARRA, dissenting in part.
My colleagues find that the Respondent engaged in an-
tiunion discrimination when it froze wages on the advent
of the Union as the Respondent’s employees’ bargaining
representative, in violation of Section 8(a)(3) of the Na-
tional Labor Relations Act (NLRA or Act). In fact, how-
ever, the Respondent did precisely what the Act man-
dates. The Respondent’s employees had chosen union
representation, and the Respondent’s duty under Section
8(a)(5) of the Act was to refrain from making unilateral
wage changes pending bargaining with the Union for an
initial collective-bargaining agreement. The Respondent
told its employees that it could not grant raises now that

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the Union had arrived on the scene. It phrased some of
these statements inartfully, and I agree with my col-
leagues that these statements violated Section 8(a)(1) of
the Act. But given that the Respondent’s duty under
Section 8(a)(5) was to freeze wages, and given that its
statements to employees were meant to convey that it
was complying with that duty, I do not believe those
statements constitute evidence of antiunion discrimina-
tion. Accordingly, I respectfully dissent from my col-
leagues’ finding that the Respondent violated Section
8(a)(3) by freezing wages pending bargaining with the
Union.
1

Facts
The Respondent provides emergency medical transpor-
tation services out of six stations throughout Yakima,
Washington. It employs about 55 employees. During
the hiring process, the Respondent’s CEO and president,
William Woodcock, or another manager typically told
employees to expect periodic wage increases. Employ-
ees were not told to expect a particular amount or that
wage increases would be given on particular dates. The
Respondent has no formal process for evaluating em-
ployee performance and no written policy regarding
wage increases.
Figure 1 below lists the employees who received wage
increases over a 10-year period spanning March 1, 2003,
to February 2013. For each employee listed, a multicol-
ored bar shows when the employee received wage in-
creases and the intervals (in months) between those in-
creases. The starting point of each bar—at its left edge—
is either the date the employee was hired or, for employ-
ees hired before March 1, 2003, the date of the first wage
increase documented in the record.
2

1 For the reasons explained below, although I agree with my col-
leagues that the Respondent violated Sec. 8(a)(5) of the Act when it
discontinued its established practice of granting its employees an annu-
al Christmas bonus, I disagree that the discontinuation of the annual
bonus also violated Sec. 8(a)(3).
2 Figure 1 reflects the information set forth in Jt. Exh. 1, contained in
the record, which shows the precise dates and amounts of raises re-
ceived by each bargaining-unit employee (employed by the Respondent
on February 20, 2013) from March 1, 2003 to February 20, 2013. (Jt.
Exh. 1 also shows wage increases received by one nonunit employee,
Jameson McDougall.) Figure 1 shows the intervals in months between
wage increases given to each bargaining-unit employee, with each
interval rounded to the nearest half-month. For purposes of rounding to
the nearest half-month, increases received on days 1–7 are deemed to
have occurred on the 1st of the month, increases received on days 8–22
are deemed to have occurred on the 15th of the month, and increases
received on days 23–30 or 23–31 are deemed to have occurred on the
1st of the next month. (For the shorter month of February, increases
received on days 1–7 are deemed to have occurred on the 1st of the
month; on days 8–20, on the 14th of the month; and on days 21–28 or
21–29, on the 1st of March.) Figure 1 excludes employees hired after
or shortly before the Union began its organizing campaign in July 2012
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and employees for whom no wage increase is reflected in Jt. Exh. 1. In
other words, Figure 1 makes the irregular wage increases implemented
by Respondent during the 2003–2013 time period appear more regular
than they really were, since the actual increases occurred on a wider
range of dates, and Figure 1 does not list employees who received no
increases.
Figure 1
Notes: (1) Some intervals between wage increases were too brief to be legibly numbered. Unnumbered intervals are either
one-half month, one month, or one-and-a-half months. (2) 22-month interval includes period of time during which Ireton’s
employment was interrupted.
ADVANCED LIFE SYSTEMS, INC. 7
The above chart plainly demonstrates that the Re-
spondent’s history of wage increases during the 10-year
period between 2003 and 2013 was irregular as to timing
and unpredictable as to which employees received in-
creases and which employees did not at any given time.
At no time during the 2003–2013 period did the Re-
spondent give a wage increase to all its employees at the
same time, and the Respondent never gave wage increas-
es at the same fixed interval for all employees. In addi-
tion to the irregular timing of the wage increases received
by different employees, the amounts of the wage increas-
es varied significantly, ranging from $0.25 to $2.50 an
hour. President and CEO Woodcock testified that he
made discretionary decisions regarding the timing of the
wage increases received by various employees, and he
stated the amount of each increase was based on “how I
viewed they were performing.”
In July 2012,
3
the Union began organizing the Re-
spondent’s employees. In July or August, Woodcock
told employee Schauer that “he would not be able to give
us raises if we brought a union in,” After a representa-
tion election held on August 15 and 16, the Board certi-
3 All remaining dates are in 2012 unless otherwise noted.
Figure 1 (cont.)
Notes: (3) 31.5-month interval includes period of time during which Molina’s employment was interrupted.
(4) 13.5-month interval includes period of time during which Rosenkranz’s employment was interrupted.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fied the Union as the collective-bargaining representative
of the Respondent’s EMTs, paramedics, and dispatchers
on August 24. After the Union’s certification, the Re-
spondent stopped giving wage increases, apart from a
few exceptions (none of which are alleged to violate the
Act).
4
In December, Woodcock told employees Schauer
and Ugaitafa that he could not give Ugaitafa a raise “be-
cause the Union was there” or “because of the whole
Union deal.” In January 2013, Woodcock told two em-
ployees that wage increases had previously been discre-
tionary but now had to be negotiated with the Union.
Over the course of a number of years, the Respondent
gave each of its employees a Christmas bonus. It did so
every year but one. That year, the employees voluntarily
agreed to forego their bonuses so that Woodcock could
give $10,000 to an employee whose house had burned
down. After employees selected the Union to represent
them, the Respondent discontinued its past practice of
giving Christmas bonuses.
Discussion
A. Under Section 8(a)(5), the Respondent Was Required
to Freeze Wages after Its Employees Chose Union Rep-
resentation, But It Violated Section 8(a)(5) When
It Discontinued Christmas Bonuses.
Section 8(a)(5) of the Act requires employers to bar-
gain over “mandatory” bargaining subjects—wages,
hours, or other terms and conditions of employment
5
—
whenever a union becomes the representative of employ-
ees in an appropriate bargaining unit. An employer vio-
lates Section 8(a)(5) of the Act if it unilaterally changes
mandatory bargaining subjects without bargaining to an
agreement or impasse. NLRB v. Katz, 369 U.S. 736
(1962); NLRB v. Borg-Warner Corp., 356 U.S. 342
(1958); Bottom Line Enterprises, 302 NLRB 373 (1991),
enfd. mem. sub nom. Master Window Cleaning, Inc. v.
NLRB, 15 F.3d 1087 (9th Cir. 1994).
6
Until bargaining is

4 Eight employees received wage increases on October 6, and three
employees received wage increases after that date.
5 Sec. 8(d) of the Act defines the obligation to bargain collectively as
“the performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and confer
in good faith with respect to wages, hours, and other terms and condi-
tions of employment, or the negotiation of an agreement or any ques-
tion arising thereunder, and the execution of a written contract incorpo-
rating any agreement reached if requested by either party, but such
obligation does not compel either party to agree to a proposal or require
the making of a concession . . . .”
6 There are several exceptions to the rule that an employer must re-
frain from unilaterally changing mandatory bargaining subjects. Courts
have held that whenever bargaining has already taken place over a
particular subject, as reflected in collective-bargaining agreement lan-
guage that covers the subject, the employer is not required to engage in
additional bargaining. Department of Navy v. FLRA, 962 F.2d 48, 57
(D.C. Cir. 1992); Chicago Tribune Co. v. NLRB, 974 F.2d 933, 936–
completed, the employer must preserve the status quo,
which means refraining from making changes in manda-
tory bargaining subjects. Therefore, once employees
have chosen to be represented by a union, the employer
violates the Act if it unilaterally changes “wages,” which
Congress repeatedly placed first when enumerating bar-
gaining subjects.
7

Under a narrow exception recognized by the Supreme
Court in Katz, unilateral wage changes are permitted if
they are supported by a “long-standing practice” of giv-
ing the same “automatic increases” at fixed intervals in
the past.
8
But the possibility of permitting these types of
unilateral wage changes was stated as an exception to the
rule in Katz, and the employer in that case was found not
to have acted within that exception but to have violated
the Act by unilaterally changing wages. Specifically, the
employer had implemented selective “merit increases”
that had been discussed in three bargaining sessions,
even though “no final understanding had been reached.”
9

937 (7th Cir. 1992). The Board has resisted adopting this “contract
coverage” standard, and I express no opinion here regarding this issue.
The Board has held that bargaining is not necessary when there has
been a “clear and unmistakable waiver” of bargaining concerning the
particular matter at issue. Provena St. Joseph Medical Center, 350
NLRB 808, 811 (2007); American Diamond Tool, Inc., 306 NLRB 570,
570 (1992).
Other exceptions to normal bargaining requirements arise “‘[w]hen a
union, in response to an employer’s diligent and earnest efforts to en-
gage in bargaining, insists on continually avoiding or delaying bargain-
ing,’” Bottom Line Enterprises, 302 NLRB at 374 (quoting M & M
Contractors, 262 NLRB 1472 (1982)), or “when economic exigencies
compel prompt action,” id. In addition, when an economic exigency
compels prompt action but is not so urgent as to altogether relieve the
employer of its duty to bargain, the employer may act unilaterally if it
gives the union notice and opportunity to bargain over the discrete
matter and “either the union waives its right to bargain or the parties
reach impasse on the matter proposed for change.” RBE Electronics of
S.D., 320 NLRB 80, 81–82 (1995). Similarly, where a discrete, recur-
ring event—such as an annual wage adjustment—is scheduled to occur
during bargaining for an initial labor contract, the employer may im-
plement changes in that employment term provided it gives the union
timely notice and an opportunity to bargain about that matter. E.g.,
Stone Container Corp., 313 NLRB 336 (1993). Although I recognize
that Bottom Line Enterprises and RBE Electronics are extant precedent,
I do not pass on the soundness of these decisions.
7 See NLRA Sec. 1 (describing the Act’s policy of minimizing in-
dustrial strife “arising out of differences as to wages, hours, or other
working conditions”); Sec. 8(d) (defining bargaining in part as confer-
ring in good faith “with respect to wages, hours, and other terms and
conditions of employment”); Sec. 9(a) (designated or selected union
representatives, if supported by an employee majority, are the exclusive
representatives “in respect to rates of pay, wages, hours of employment,
or other conditions of employment”). Cf. NLRB v. Katz, supra, 369
U.S. at 745 (“[E]ven after an impasse is reached [an employer] has no
license to grant wage increases greater than any he has ever offered the
union at the bargaining table, for such action is necessarily inconsistent
with a sincere desire to conclude an agreement with the union.”).
8 Katz, 369 U.S. at 746–747.
9 Id. at 746.
ADVANCED LIFE SYSTEMS, INC. 9
The Supreme Court concluded that unilaterally changing
wages constituted an unlawful refusal to bargain in viola-
tion of Section 8(a)(5):

The respondents’ . . . unilateral action related to merit
increases . . . . must be viewed as tantamount to an out-
right refusal to negotiate on that subject, and therefore
as a violation of § 8(a)(5), unless . . . the January raises
were in line with the company’s long-standing practice
of granting quarterly or semiannual merit reviews—in
effect, were a mere continuation of the status quo . . . .
Whatever might be the case as to so-called “merit rais-
es” which are in fact simply automatic increases to
which the employer has already committed himself, the
raises here in question were in no sense automatic, but
were informed by a large measure of discretion. There
simply is no way in such case for a union to know
whether or not there has been a substantial departure
from past practice, and therefore the union may proper-
ly insist that the company negotiate as to the proce-
dures and criteria for determining such increases.
10

The rule in Katz is that employers cannot deviate from
the status quo by making unilateral changes in wages and
other mandatory bargaining subjects. The Katz excep-
tion—often referred to as the “dynamic status quo”—
permits unilateral wage increases that are supported by a
“long-standing practice” of giving “automatic increas-
es.”
11
As the above chart graphically demonstrates, the
rule of Katz applies here, not the exception.
The judge found otherwise. Although he acknowl-
edged that “the intervals between wage increases . . .
varied somewhat”—a stunning understatement—he
found that the Respondent violated Section 8(a)(5) when
it discontinued granting wage increases after the Union
was certified
12
on the basis that the intervals between
wage increases “were not random, as employees typical-
ly received wage increases every 6 months or sooner”

10 Id. at 745–747 (emphasis added; footnote omitted).
11 Id. at 746. As described by Professors Gorman and Finkin in the
most recent edition of their well-known treatise:
[T]he case law (including the Katz decision itself) makes clear that
conditions of employment are to be viewed dynamically and that the
status quo against which the employer’s “change” is considered must
take account of any regular and consistent past pattern of change. An
employer modification consistent with such a pattern is not a “change”
in working conditions at all.
Robert A. Gorman, Matthew W. Finkin, LABOR LAW ANALYSIS AND
ADVOCACY, at 720 (Juris 2013) (hereinafter “Gorman & Finkin”) (em-
phasis added). See also Westinghouse Electric Corp. (Mansfield
Plant), 150 NLRB 1574, 1577 (1965) (referring to whether unilateral
subcontracting decisions “vary significantly in kind or degree from
what had been customary under past established practice”).
12 My colleagues do not pass on this finding.
(emphasis added). Thus, according to the judge, a “pat-
tern” of regularly timed wage increases has been proven
here, even though the purported “pattern” includes inter-
vals between pay raises of 1/2 month,
13
1 month,
14
1 1/2
months,
15
2 months,
16
2 1/2 months,
17
3 months,
18
3 1/2
months,
19
4 months,
20
4 1/2 months,
21
5 months,
22
5 1/2
months,
23
and 6 months. Using this mode of analysis—
which simply disregards the irregularity of wage increas-
es by defining the pattern as “every 6 months or soon-
er”—evidence that wage increases were given at irregu-
lar intervals will “prove” that the increases were regular-
ly timed. Such after-the-fact “pattern” analysis bears no
resemblance to the Supreme Court’s reference, in Katz,
to a “long-standing pattern” of “automatic” increases that
were given quarterly or semiannually.
24

There is no reasonable way that one can extract a for-
ward-looking statutory obligation to provide future wage
increases from the patchwork of past wage adjustments
that the Respondent provided at different times in vary-
ing amounts to some employees and not others.
25
The

13 See Figure 1 (employees Lambert-Smith, Neumann, Sharp).
14 Id. (employees Ackley, Micheles, Pirolo, Rhodes, Sharp,
Ugaitafa).
15 Id. (employees Fandrich Jr., Hallmark, Pirolo, Wakeman).
16 Id. (employees Davie, Flodin, Gomez, Hallmark, Longie, Nokes,
M. O’Dell, Petersen, Ugaitafa, Wakeman, Weigley, Yeager).
17 Id. (employees Micheles, Gorman, Judkins, M. O’Dell, Wake-
man).
18 Id. (employees Brisky, Micheles, Derby, Gomez, Harpel, Judkins,
Matson, Mickelson, Petersen, Rhodes, Rosenkranz, Wakeman, Walker,
Weigley).
19 Id. (employees Adams, Gravel, Harpel, Nokes, M. O’Dell, Pirolo,
Rosenkranz, Schauer, Sharp, Wakeman).
20 Id. (employees Davie, Flodin, Judkins, Longie, Nokes, Schauer,
Ugaitafa, Walker).
21 Id. (employees Adams, Micheles, Davie, Fandrich Jr., Gomez,
Gravel, Holman, Ireton, Judkins, Madden Jr., McCabe, Mickelson, M.
O’Dell, Rhodes, Schauer, Walker, Weigley, Yeager).
22 Id. (employees Bardwell, Derby, Fandrich Jr., Gorman, Ireton,
Mickelson, C. O’Dell, Schauer, Sharp, Wakeman).
23 Id. (employees Ackley, Adams, Brisky, Davie, Derby, Fandrich
Jr., Flodin, Gomez, Gravel, Green, Hallmark, Holman, Ireton, Judkins,
Longie, Madden Jr., McCabe, Mickelson, Molina, Nokes, C. O’Dell,
M. O’Dell, Petersen, Rhodes, Rosenkranz, Schauer, Sharp, Wakeman,
Yeager).
24 Katz, 369 U.S. at 746.
25 The obligation to provide wage increases based on a “long-
standing practice” of giving “automatic increases,” Katz, 369 U.S. at
746, represents what might be called the reverse version of the Katz
exception. As noted in the text, the Katz exception recognizes that if an
employer implements unilateral wage changes, it can successfully
defend against an allegation that it violated Sec. 8(a)(5) by showing that
the changes were consistent with a “long-standing practice” of giving
the same “automatic increases” in the past. Id. In some cases, in which
a reverse version of the Katz exception was applied, the Board and the
courts have found that the Act required employers to make unilateral
wage changes—even though bargaining has not taken place regarding
such changes—when the status quo encompasses a consistent practice
of giving the same wage increases at fixed intervals. See, e.g., Daily
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent had no formal merit review program. There
is no evidence establishing when the Respondent evalu-
ated its employees’ performance or what criteria it ap-
plied in doing so. It is uncontroverted that CEO and
President Woodcock decided when to increase an em-
ployee’s wages based on his own discretion, and he de-
cided how much to increase an employee’s wages based
on “how I viewed they were performing.” In addition,
Respondent’s wage increases were given to particular
employees at highly irregular intervals, ranging from half
a month to more than 20 months. The Respondent’s
practice of increasing wages was not fixed in amount or
timing. Thus, just like the increases in Katz—which the
Supreme Court stated could not be unilaterally imple-
mented without bargaining—the wage increases at issue
here “were in no sense automatic, but were informed by a
large measure of discretion.” Katz, 369 U.S. at 746.
Indeed, if the Respondent had implemented unilateral
wage changes, it would have clearly violated Section
8(a)(5).
In contrast, the Respondent did have a longstanding,
established practice of giving its employees an annual
Christmas bonus. As stated above, the record reveals
that the Respondent had given employees a bonus every
year except one—and that year, the employees voluntari-
ly agreed to forego their bonuses so that Woodcock
could give $10,000 to an employee whose house had
burned down. Given that the only exception to the Re-
spondent’s past practice of giving out Christmas bonuses
was consented to by the employees themselves, I agree
that the bonuses were an established condition of em-
ployment, and the Respondent violated Section 8(a)(5) of
the Act by discontinuing them after employees selected
the Union.
B. Some of the Respondent’s Statements Concerning
Wage Increases Violated Section 8(a)(1), But Wood-
cock’s January 2013 Statement Was Lawful.
I agree with my colleagues that some statements made
by Woodcock violated Section 8(a)(1). According to the
credited testimony of employee Matthew Schauer, in

News of Los Angeles, 315 NLRB 1236 (1994) (“Daily News II”), enfd.
73 F.3d 406 (D.C. Cir. 1996). The Board has gone so far as to require
the employer to continue granting wage increases even though past
increases have varied in amount based on the employer’s exercise of
discretion. E.g., Mission Foods, 350 NLRB 336, 337 (2007).
In my view, the Board must exercise considerable care when inter-
preting Katz—where the Supreme Court described a defense against an
allegation that an employer’s unilateral changes violated Sec. 8(a)(5)—
to mean that Sec. 8(a)(5) imposes an obligation on employers to make
unilateral changes in wages, particularly since the Act explicitly states
that the duty to bargain “does not compel either party to agree to a
proposal or require the making of a concession.” Sec. 8(d); see also H.
K. Porter Co. v. NLRB, 397 U.S. 99, 102 (1970).
July or August 2012 Woodcock told Schauer that “he
would not be able to give us raises if we brought a union
in.” And according to the credited testimony of employ-
ees Schauer and Lenny Ugaitafa, in December 2012
Woodcock told Ugaitafa that he could not give Ugaitafa
a raise “because the Union was there” or “because of the
whole Union deal.” Although these statements might
conceivably be interpreted to reflect a lawful sentiment—
i.e., electing the Union precludes raises because Wood-
cock’s duty is to maintain the status quo pending collec-
tive bargaining—they would more likely be understood
by employees to mean, first, that Woodcock would with-
hold raises if employees selected a union, and second,
that Woodcock was withholding raises because employ-
ees selected the Union. In other words, employees
would reasonably hear the message that raises would be
withheld or are being withheld in retaliation for selecting
the Union, which would unlawfully interfere with, re-
strain, or coerce employees in the exercise of their Sec-
tion 7 rights regardless of whether that was the message
Woodcock meant to convey.
My colleagues do not pass on whether the Respondent
violated Section 8(a)(1) when Woodcock told two em-
ployees, in January 2013, that wage increases had previ-
ously been discretionary but now had to be negotiated
with the Union. I would find that the Respondent did not
violate the Act when Woodcock made this statement. In
my view, this was a clear, correct and lawful statement of
the Respondent’s obligations under the Act.
C. The Respondent Did Not Engage in Antiunion Dis-
crimination in Violation Section 8(a)(3) by Refraining
from Giving Unilateral Wage Increases
and Christmas Bonuses.
For the reasons stated above, I believe that Section
8(a)(5) clearly did not permit the Respondent to give
unilateral wage increases after the Union’s certification,
when wage increases had not been agreed upon and when
the parties had not even commenced collective bargain-
ing. Because the Respondent would have violated Sec-
tion 8(a)(5) by giving unilateral wage increases in these
circumstances, the Board cannot reasonably find that
Respondent’s failure to implement such increases consti-
tuted antiunion discrimination in violation of Section
8(a)(3).
I addressed a similar scenario in Arc Bridges, Inc., 362
NLRB No. 56 (2015). There, after the D.C. Circuit re-
jected the Board’s finding that annual wage increases
were an established condition of employment, the issue
before the Board on remand was whether the employer,
which had given a wage increase to its unrepresented
employees, was motivated by antiunion animus and vio-
lated Section 8(a)(3) when it decided not to give a wage
ADVANCED LIFE SYSTEMS, INC. 11
increase to its represented employees while it was en-
gaged in negotiations with their bargaining representa-
tive, even though such an increase would have violated
Section 8(a)(5) if given. I wrote:

[T]he Respondent’s legal duty was to maintain the sta-
tus quo unchanged while it bargained in good faith with
the Union to agreement or impasse. Annual wage in-
creases were not the status quo, as the D.C. Circuit has
made clear. Thus, refraining from giving unit employ-
ees a wage increase in October 2007, while bargaining
was ongoing, was what the Respondent was supposed
to do. Otherwise, the Respondent would have violated
Section 8(a)(5). Especially in this context, before de-
ciding that the withholding of a wage increase violates
Section 8(a)(3), the Board must require strong and con-
vincing evidence sufficient to prove unlawful motiva-
tion. Otherwise, parties would run the risk of violating
the Act whenever they exercise their legal right—and
their legal obligation—to refrain from automatically
giving represented employees whatever increases are
granted to other employees.

Arc Bridges, 362 NLRB No. 56, slip op. at 12 (Member
Miscimarra, dissenting).
Here, as discussed above, the Respondent faced the
same situation: it would have violated Section 8(a)(5) if
it gave the wage increases at issue. This precludes a rea-
sonable finding that the Respondent, by exercising the
restraint required by Section 8(a)(5), engaged in prohib-
ited discrimination in violation of Section 8(a)(3), which
makes it unlawful for an employer to engage in “discrim-
ination . . . to . . . discourage membership in any labor
organization.” As a result, I disagree with my col-
leagues’ finding that the General Counsel sustained his
initial burden under Wright Line
26
of showing that the
Respondent bore animus towards the Union.
Nor do I believe the Board can reasonably find that the
Respondent’s violations of Section 8(a)(1) support a
finding that the Respondent’s treatment of wages was
unlawfully motivated by antiunion considerations. I
agree that the Respondent violated Section 8(a)(1)
when, as described by employee Schauer, Respondent’s
CEO and President Woodcock (i) stated that “he would
not be able to give . . . raises if we brought a union in,”
and (ii) told employees Schauer and Ugaitafa that he
could not give Ugaitafa a raise “because the Union was
there” or “because of the whole Union deal.” I believe
these statements violated Section 8(a)(1) because Wood-
cock’s imprecise wording would reasonably be interpret-

26 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
ed by employees as an expression of retaliation for sup-
porting the Union, but I do not believe these statements
prove that Woodcock was motivated by an actual desire
to discriminate against employees. Section 8(a)(1) legal-
ity turns on what employees would have reasonably un-
derstood, but a Section 8(a)(3) violation requires proof
that the employer actually engaged in discrimination
motivated by a desire to “discourage” union member-
ship. Especially in light of Woodcock’s lawful statement
that wage increases had previously been discretionary
but now had to be negotiated with the Union, I believe
the record supports a finding that Woodcock reasona-
bly—indeed, correctly—believed that the Respondent
was required to bargain over wages and could not in-
crease wages until an agreement (or impasse) was
reached.
27

For similar reasons, I disagree that the Respondent’s
treatment of Christmas bonuses constituted unlawful
discrimination in violation of Section 8(a)(3). Although
I agree the Respondent violated Section 8(a)(5) when it
discontinued the Christmas bonuses, I believe the record
does not preclude the possibility that the Respondent, in
good faith, mistakenly believed that it had to refrain from
continuing to pay bonuses pending negotiations with the
Union. Under the circumstances presented here, I do not
believe the record establishes that antiunion animus mo-
tivated the Respondent’s decision not to provide Christ-
mas bonuses following the Union’s certification, particu-
larly given that the Respondent was not mistaken in be-
lieving that Section 8(a)(5) required it to suspend wage
increases pending bargaining with the Union.
Accordingly, I would find that the General Counsel
has not met his burden of proving that the Respondent

27 I disagree with my colleagues’ contention that antiunion discrimi-
nation is proven by Woodcock’s statements because the Respondent
“could have lawfully granted” the increases if the Respondent had
proposed them and “if the Union agreed.” I believe this contention is
plainly without merit. If this argument were accepted, it would mean
that whenever an employer described the Act’s prohibition against
unilateral action (preventing immediate wage increases), the Board
could find that the employer engaged in antiunion discrimination based
on the employer’s failure to propose the increases at issue and to as-
sume the union would accept them. I believe this is plainly insufficient
to prove unlawful antiunion motivation, given that the Respondent
reasonably understood (as explained in the text) that the duty to bargain
prevented it from unilaterally implementing discretionary wage in-
creases. Indeed, in another decision issued today, the Board in DuPont
has squarely held that discretionary employer actions can never be
taken unilaterally based on past practice, even though the employer
may have always taken precisely the same actions previously. See 364
NLRB No. 113 (2016). The Board cannot reasonably find that the
Respondent here engaged in unlawful antiunion discrimination based
on statements that, in fact, were consistent with the Board’s own hold-
ing in DuPont.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bore animus toward the Union, and I would dismiss the
Section 8(a)(3) allegations.
CONCLUSION
To the extent and for the reasons stated above, I re-
spectfully dissent.
Dated, Washington, D.C. August 27, 2016

______________________________________
Philip A. Miscimarra, Member

NATIONAL LABOR RELATIONS BOARD

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT tell you that you will not get raises if
you choose, or because you have chosen, to be represent-
ed by a union.
WE WILL NOT refuse to give you wage increases be-
cause you chose to be represented by a union.
WE WILL NOT refuse to give you your traditional
Christmas payments because you chose to be represented
by a union.
WE WILL NOT unilaterally cease to grant established
Christmas payments to you.
WE WILL NOT discontinue our custom and practice of
granting you Christmas payments because you chose to
be represented by a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:

All full-time, regular part-time and per diem EMTs,
paramedics and dispatchers employed by the Respond-
ent out of its Yakima, Washington facilities, but ex-
cluding all other employees, maintenance employees,
and guards and supervisors as defined in the National
Labor Relations Act.

WE WILL, on request of the Union, rescind the unilat-
eral changes in terms and conditions of employment and
restore the status quo ante with regard to our established
practice of granting Christmas payments every year, until
such time as we reach an agreement with the Union for a
new collective-bargaining agreement or a lawful impasse
based on good-faith negotiations.
WE WILL make unit employees whole for any loss of
earnings and other benefits suffered as a result of the
unlawful discrimination against them, plus interest.
WE WILL make unit employees whole for any loss of
earnings and other benefits suffered as a result of the
unlawful unilateral change, plus interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 19, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.

ADVANCED LIFE SYSTEMS, INC.

The Board’s decision can be found at
www.nlrb.gov/case/19–CA–096464 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.

ADVANCED LIFE SYSTEMS, INC. 13
Ryan Connelly, Esq., for the General Counsel.
Gary E. Lofland, Esq. (Halverson Northwest Law Group), of
Yakima, Washington, for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Yakima, Washington, on February 25, 2014. Inter-
national Association of EMTs and Paramedics (IAEP) filed
charges against Advanced Life Systems, Inc. (the Company) in
Case 19–CA–096464 on January 15, 2013, and Case 19–CA–
096899 on January 22, 2013. IAEP, an affiliated labor organi-
zation, filed the charges on behalf of the National Emergency
Medical Services Association (the Union).1 An order to con-
solidate both cases and complaints issued on April 29, 2013.
An amended order consolidating cases and complaints issued
on September 13, 2013. The amended complaint alleges that
the Company violated Section 8(a)(5) and (1) of the National
Labor Relations Act2 (the Act) by: (1) withholding regularly
scheduled biannual wage increases; (2) failing to provide em-
ployees with Christmas bonuses; and (3) telling employees that
wage increases were withheld because of their union activity.
The complaint also alleges that the Company violated Section
8(a)(3) and (1) for discriminating in regard to the hiring, tenure
or terms and conditions of employment of its employees. The
complaint alleges that the Company engaged in this conduct
because a majority of the Company’s employees voted for the
Union in the August 2012 election and engaged in concerted
activities, and to discourage employees from engaging in these
or other union and/or protected, concerted activities.
In its timely-filed answer, the Company essentially denies
the material allegations and asserts as an affirmative defense
that the General Counsel lacks standing to issue and bring this
complaint because he was improperly appointed.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a Washington State corporation with an of-
fice and place of business in Yakima, Washington (the facility),
is engaged in the business of providing emergency medical
transportation services. In conducting its operations during the
last 12 months, the Company derived gross revenues in excess
of $5000, and purchased and received goods at the facility val-
ued in excess of $50,000 directly from suppliers located outside
the State of Washington. The Company admits and I find that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the

1 From May or April 2012 to April 2013, IAEP had an affiliation and
service agreement with the Union, in which IAEP provided the Union
with representation services, contract negotiations, handling of arbitra-
tions, organizing, and servicing the members. (GC Exh. 1(a); Tr. 18–
19.)
2 29 U.S.C. §§ 151–169.
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties
The Company is a family-held S corporation formed in April
1996. William Woodcock (Woodcock) is the Company’s presi-
dent, chief executive officer (CEO), majority shareholder and
oversees day-to-day operations. Billie Woodcock, Woodcock’s
spouse, is the other majority shareholder, but is not actively
involved in the operation of the business. Woodcock’s two
daughters are minority, nonvoting shareholders and are not
actively involved in the business. Peter South is the Company’s
operations manager. Jameson McDougall is a paramedic with
supervisory responsibilities.3
The Company employs approximately 55 workers, consist-
ing of full-time and part-time employees, operating out of six
stations throughout Yakima. Employee categories include
Emergency Medical Technician (EMT) basics, advanced
EMTs, paramedics, dispatchers, billing staff, and an operations
manager.4 These employees include Matthew Schuaer, an ad-
vanced EMT, and paramedics Lenny Ugaitafa and Cole Gravel.
B. The Parties’ Collective-Bargaining Relationship
In July 2012, the Union began organizing Company employ-
ees. On August 15 and 16, 2012, a representation election was
held, and on August 24, 2012, the Board certified the Union as
the unit’s exclusive collective bargaining representative. The
bargaining unit (the unit) includes all full-time, regular part-
time and per diem EMT’s, paramedics, and dispatchers em-
ployed by the Company out of its six Yakima facilities, but
excludes all other employees, maintenance employees, and
guards and supervisors as defined in the Act.5 As of February
25, 2014, however, the Company and the Union had not yet
met for any negotiations.6
C. Wage Raises
The Company has no written policy regarding wage sched-
ules or increases in its policy manual or standard operating
procedures.7 Nor does it have a formal procedure of evaluating
unit employees’ performance.8 However, during the hiring
process, Woodcock or the General Manager usually informs
new employees to expect periodic wage increases. Thereafter,
increases are determined by Woodcock based on tenure and
performance.9

3 The Company admitted that Woodcock, McDougall, and South
were supervisors and/or agents within the meaning of Sec. 2(11) and
(13) of the Act. (GC Exh. 1(R).)
4 Woodcock estimated that the 55 employees, including an undeter-
mined amount of part-time employees, actually add up to the equivalent
of 45 to 50 full-time employees. (Tr. 70–72.)
5 GC Exh. 1(P) at 3-4, 1(R) at 1.
6 No explanation was provided by either party as to why they had not
yet met to engage in collective bargaining. (Tr. 76.)
7 R. Exh. 1–2.
8 There was no testimony to refute Woodcock’s credible testimony
that he had exclusive authority in determining wage increases. (Tr. 82.)
9 Schauer, Gravel, and Ugaitafa credibly testified that, upon being
hired, they were told by South, Woodcock, or other managers to expect
periodic wage increases once every 6 months. Starting out, employees
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Prior to July-August 2012, the intervals between wage in-
creases and wage increase amounts varied somewhat, but were
not random,10 as employees typically received wage increases
every 6 months or sooner.11 The increases ranged from 25
cents to 2 dollars and 50 cents.12 Woodcock started new em-
ployees at relatively low wage rates, but increased their wages
as they progressed.13
At some point after the organizing campaign began in July
and before the representation election in August 2012, Wood-
cock spoke with Schauer at station 4 about the implications of
unionization. McDougall, Schauer’s supervisor, was present.
One implication of union certification, Woodcock told Schauer,
would be the need to negotiate wage increases before the Com-
pany could give raises.14
In December 2012, after the Union prevailed in the election
and was certified, Ugaitafa approached Woodcock about his
overdue raise. Schauer was standing nearby and overheard the
conversation. Woodcock explained that, because the Union was
now involved, he had been advised by counsel to freeze all
terms and conditions of employment, including pay raises.15
In January 2013, Schauer and Gravel approached Woodcock
about the lack of pay raises since the Union was certified. They
told him that it was supposed to be business as usual until con-
tract negotiations were complete. Woodcock, however, insisted
that pay raises had been discretionary and now needed to be

typically received $1-per-hour raises and then the raises decreased in
25- or 50-cent increments. (Tr. 23-24, 51–52, 63, 67.)
10 Jt. Exh. 1.
11 Prior to December 2012, Schauer received the following consecu-
tive wage increases over the corresponding periods of time: 50 cents (4
months); $1 (4 months); 50 cents (4 months); 25 cents (5 months); 25
cents (6 months); 25 cents (6 months); and 25 cents (6 months). Gravel
received the following consecutive wage increases during the following
periods of time: $1 (3 months); 50 cents (5 months); 50 cents (5
months); 50 cents (5 months); $1 and 50 cents (6 months); 50 cents (6
months); 50 cents (6 months); 25 cents (6 months). Ugaitafa received
the following consecutive wage increases during the following periods
of time: 50 cents (2 months); 50 cents (4 months); $1 (1 month). (Jt.
Exh. 1.)
12 Among the employees who testified, the largest wage increase was
$1.50 per hour. (Jt. Exh. 1.)
13 Woodcock provided credible testimony that he also considers oth-
er factors, including the availability of employees, the economy, com-
pany expenses, call volumes, and reimbursement rates. (Tr. 79–81, 92.)
14 There is no testimony as to the month or day that the conversation
took place. However, the conversation between Schauer, McDougall,
and Woodcock occurred at station 4 prior to the union certification.
Neither Schauer nor Woodcock recalled everything that was said dur-
ing the discussion. I credit Schauer’s version, however, because he
specifically recalled hearing Woodcock say that he would be unable to
give raises if employees voted in favor of the Union. (Tr. 25–27.)
Woodcock, on the other hand, conceded that the conversation took
place, but simply denied stating what was alleged in the complaint. (Tr.
74–75.)
15 Ugaitafa and Schauer provided credible testimony about this con-
versation. (Tr. 27–29, 64–65.) Woodcock, on the other hand, issued a
vague denial to the complaint allegation (“not exactly like that”) and
conceded that he told the employees that he could not undertake unilat-
eral action without first bargaining with the Union. (Tr. 75.)
negotiated.16
Since July-August 2012, a majority of the unit has not re-
ceived any wage increases from the Company.17 Nor did the
Company notify the Union, at any time since it was certified in
August 2012 as the bargaining unit’s labor representative and
prior to December 19, 2013, that it would cease giving wage
increases. On December 19, 2013, however, approximately 2
months prior to this hearing, the Company notified the Union
that it intended to provide employees with hourly wage increas-
es in January 2014. Only certain employees, however, have
received wage increases since that time.18
D. Christmas Bonus
The Company also has no formal written employee policy
regarding bonuses.19 However, prior to December 2012, unit
employees regularly received Christmas payments in different
forms and amounts. In fact, this practice evolved to the point
where unit employees, upon being hired by the Company, were
notified to expect such future payments.20 Woodock generally
gave unit members payments ranging in amounts from $50 to
500 each (totaling around $10,000-15,000) in the form of cash,
check, tangible raffle chances, gifts, or trip prizes at the annual
Christmas party hosted by the Company. Since the Company’s
inception in 1996, the payments were usually distributed at the
annual Christmas party and the gifts increased in value as the
business prospered.21
More recently, unit employees received some form of
Christmas payments in 2008 and 2009.22 In 2010, after an em-
ployee’s home was destroyed in a mud slide, Woodcock asked
unit employees if they would agree to forego their Christmas

16 Schauer and Gravel provided inconsistent testimony as to what
Woodcock told them on this occasion. Gravel simply recalled Wood-
cock responding that he would consult with his attorney (Tr. 30–31.),
while Schauer recalled Woodcock saying that he was not allowed to
give employee raises because they were now represented by the Union.
(Tr. 53–55.) Nevertheless, Schauer’s recollection of the conversation
was close to Woodcock’s version that everything had been discretion-
ary in the past and now had to be negotiated. (Tr. 76.)
17 Jt. Exh. 1.
18 Gravel and Ugaitafa received a wage increases in January 2014.
(Tr. 52, 62, 90; R. Exh. 3.) The Company allegedly awarded wage
raises to certain employees in an effort to retain them. (Tr. 90.)
19 R. Exhs. 1, 2.
20 Schauer and Gravel credibly testified that they were told by Gen-
eral Manager Ann McCarter that EMTs receive bonuses around
Christmastime, and that EMTs receive $50 for every year up to $500,
and paramedics receive $100 for every year up to $500. (Tr. 32, 55–
56.)
21 Woodcock credibly testified that his family personally gave em-
ployees Christmas gifts and that records were not kept. However, I do
not credit his assertion that employees had to be present at the Christ-
mas party to receive the gift (Tr. 82–85, 94–95.), as Gravel’s credible
and unrefuted testimony revealed that, in some instances, the payments
were distributed by the dispatch office prior to the Christmas party. (Tr.
56.) Moreover, he failed to refute the credible testimony of Schauer
and Gravel that bonuses ranged from $50-$500.
22 Schauer testified to receiving a bonus in 2009 (Tr. 32.), but was
impeached by a sworn affidavit in which he stated the contrary. (Tr.
39.) Gravel, however, provided credible and unrefuted testimony that
he received one that year. (Tr. 55–56.)
ADVANCED LIFE SYSTEMS, INC. 15
payments in return for a $10,000 contribution by Woodcock to
the affected employee. Unit employees agreed, the affected
employee was given a $10,000 check, and there were no
Christmas bonuses. Some employees, however, randomly re-
ceived gifts through a raffle.23 In 2011, most employees re-
ceived Christmas payments in the form of checks. New em-
ployees, however, were allowed to take part in a raffle for gift
cards and other products.24 In 2012 and 2013, Woodcock did
not give Christmas payments to unit employees. Nor did he
notify the Union that he would cease giving the customary
Christmas bonuses or gifts.25
Monetary payments given to employees at Christmas time
were always issued in the form of personal checks or cash from
Woodcock and his wife. There were no records kept of such
payments and neither Woodcock nor the Company claimed
them as employee compensation or business expenses on their
respective income tax returns.26 Nor did employees report such
payments as income on their income tax returns.27
Legal Analysis
I. THE 8(A)(5) VIOLATIONS
The complaint alleges that the Company stopped giving unit
employees annual pay increases and Christmas bonuses without
prior notice to the Union and without affording the Union an
opportunity to bargain with respect to the changes, and without
first bargaining with the Union to a good-faith bargaining im-
passe. The Company admits that employees have not received
wage increases since 2012 but denies that it was required to do
so. Similarly, the Company admits that it has not given any
Christmas payments to employees since 2011, but denies that it
has ever given employee bonuses or is required to do so.
Section 8(a)(5) of the Act provides that “[i]t shall be an un-
fair labor practice for an employer . . . to refuse to bargain col-
lectively with the representatives of his employees,” 29 U.S.C.
§ 158(a)(5); and Section 8(d) identifies the subject matters of
such bargaining as including “wages, hours, and other terms
and conditions of employment.” Id. § 8(d). An employer vio-
lates the Act when it unilaterally alters wages, hours, or other
terms or conditions of employment without first negotiating to
a valid impasse with the union representing the employees.
Covanta Energy Corp., 356 NLRB 706, 727 (2011), citing
NLRB v. Katz, 369 U.S. 736, 742–743 (1962) (“Unilateral ac-
tion by an employer without prior discussion with the union
does amount to a refusal to negotiate about the affected condi-

23 Woodcock’s testimony was credible and corroborated by Gravel
on this point. (Tr. 57, 85–86.)
24 This finding is based on the credible and unrefuted testimony of
Schauer (Tr. 36), Gravel (Tr. 57), and Ugaitafa (Tr. 66).
25 Woodcock conceded that he stopped the practice in 2012 and 2013
and, in response to leading questions, attributed it to several factors:
helping a family member experiencing financial difficulties, increasing
business competition from American Medical Response, and decreas-
ing margins in the reimbursement system from Medicare and Medicaid.
(Tr. 36, 57–58, 66, 86–89, 93–94.)
26 Woodcock’s testimony as to the personal forms of cash and check
payments to employees was not refuted by any company employees.
(Tr. 85, 96.)
27 This finding is based on Gravel’s credible testimony. (Tr. 60.)
tions of employment under negotiation, and must of necessity
obstruct bargaining, contrary to the congressional policy.”)
An employer and the representative of its employees are ob-
ligated to bargain with each other in good faith regarding wag-
es, hours, and other terms and conditions of employment.
NLRB v. Borg-Warner Corp., 356 U.S. 342, 349 (1958). The
duty to bargain is limited to those subjects; as to all other mat-
ters, each party is free to bargain or not to bargain. Id. Among
those other matters not requiring bargaining are gifts given to
employees by their employers. North American Pipe Corp., 347
NLRB 836, 837 (2006); See, e.g., Benchmark Industries, 270
NLRB 22 (1984), affd. Amalgamated Clothing v. NLRB, 760
F.2d 267 (5th Cir. 1985).
A. Wage Raises
The wage increases fall within the ambit of section 8(a)(5)
“if they are of such a fixed nature and have been paid over a
sufficient length of time to have become a reasonable expecta-
tion of the employees and, therefore, part of their anticipated
remuneration.” Phelps Dodge Mining Co. v. NLRB, 22 F.3d
1493, 1496 (10th Cir.1994) (quoting NLRB v. Nello Pistoresi &
Son, Inc., 500 F.2d 399, 400 (9th Cir.1974)). Periodic wage
increases become conditions of employment if they are “an
established practice . . . regularly expected by the employees.”
Daily News of Los Angeles, 315 NLRB 1236 (1994), enfd. 73
F.3d 406 (D.C. Cir. 1996).
On the other hand, if an employer “retain[s] total discretion
to grant [wage] increases based on any factors it chooses,” it is
doubtful that discontinuing the policy would violate Section
8(a)(5).” Daily News of Los Angeles v. NLRB, 73 F.3d 406, 412
fn. 3 (D.C. Cir. 1996). Indeed, wage increases that “are fixed as
to timing but discretionary in amount do not become part of the
employees’ reasonable expectations and thus are not considered
‘terms and conditions’ of employment.” Acme Die Casting, 93
F.3d 854, 857 (D.C. Cir. 1996), citing Phelps Dodge, 22 F.3d at
1496 (holding that payments to employees were not a condition
of employment where the payments varied in time, recipients,
amounts and manner in which calculated). See also Daily
News, 73 F.3d at 412 fn. 3 (“fixed timing alone would be suffi-
cient to bring the program under Katz”). Further, the compa-
ny’s periodic wage increase must establish a discernable pattern
or practice in regard to timing, amount and selection of em-
ployees to receive the increases. Phelps Dodge, 22 F.3d at
1497, citing Ithaca Journal-News, Inc., 259 NLRB 394, 395
(1981); UARCO, Inc., 283 NLRB 298, 300 (1987) (employer
unlawfully discontinued an established 17-year annual wage
increase to newly represented employees); Southeastern Michi-
gan Gas Co., 198 NLRB 1221, 1222–1223 (1972) (employer
violated § 8(a)(5) by discontinuing established 20-year practice
of biannual wage increases).
Prior to the Union’s representation of unit employees, the
Company had a longstanding practice of granting hourly wage
increases mainly between 25 to 50 cents once every 6 months
or sooner, depending on tenure and performance. Its cessation
of such a practice since that time, without notice to the Union,
amounts to a unilaterally discontinuation of an expected term of
employment. Jensen Enterprises, 339 NLRB 877, 877 (2003)
(by withholding customary increases during a potentially long
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
period of negotiations for an agreement covering overall terms
and conditions of employment, employer unlawfully changes
existing terms and conditions without bargaining to agreement
or impasse). Moreover, the unilaterally imposed change was
“material, substantial, and significant,” thus impacting the em-
ployees or their working conditions in violation of Section
8(a)(5). Toledo Blade Co., 343 NLRB 385 (2004).
B. Christmas Payments
The inquiry here is whether the Christmas payments were
gifts or “wages” in the form of bonuses. See Acme Die Casting,
v. NLRB., 93 F.3d 854, 857 (D.C. Cir. 1996); Phelps Dodge
Mining Co., Tyrone Branch v. NLRB, 22 F.3d 1493, 1496 (10th
Cir. 1994). The Board has construed the term “wages” to in-
clude “emoluments of value . . . which may accrue to employ-
ees out of their employment relationship.” N. Am. Pipe Corp. &
Unite Here, 347 NLRB 836, 837 (2006); See generally Inland
Steel Co., 77 NLRB 1, 4 (1948), enfd. 170 F.2d 247 (7th Cir.
1948), cert. denied 336 U.S. 960 (1949). On the other hand, it is
recognized that gifts do not become wages or terms and condi-
tions of employment simply because they are made in the con-
text of an employment relationship. N. Am. Pipe Corp. & Unite
Here, 347 NLRB at 837. An employer can make such pay-
ments as it pleases. Id. citing NLRB v. Wonder State Mfg. Co.,
344 F.2d 210, 213 (8th Cir. 1965), denying enf. in pertinent
part at 147 NLRB 179(1964).
The Board has found that an employer cannot unilaterally
discontinue a bonus if it is of a fixed nature and has been paid
over a sufficient length of time or with an explicit promise of
future payments, thereby creating a reasonable expectation
among employees that the payment will be received as part of
their remuneration from employment. North American Pipe
Corp., 347 NLRB at 838. Thus, a holiday bonus is a mandatory
bargaining subject if the employer’s conduct raises the employ-
ees’ reasonable expectation that the bonus will be paid. Waxie
Sanitary Supply, 337 NLRB 303, 304 (2001) (unlawful discon-
tinuance of a holiday bonus where the employer based the
amount in part on individual performance and company profits,
and posted the monthly gross profits in the employee lunch-
room so that employees could monitor the size of their antici-
pated bonus for the prior 3 consecutive years). See, e.g., E.C.
Waste, Inc., 348 NLRB 565 (2006) (unlawful discontinuance of
a supplemental bonus, given on top of statutorily mandated
bonus, which was given at Christmas, every year until Union
was elected, and in a significant amount, $900, per employee);
Sykel Enterprises., 324 NLRB 1123, 1124–1125 (1997) (un-
lawful discontinuance of a Christmas bonus where it was given
to different employees in different amounts, determined solely
by the employer, and based in part on “how the Company oper-
ated that year” for the prior four consecutive years).
Woodcock began hosting Christmas parties for Company
employees the mid-1990s. They began as pot-luck dinners, but
graduated to catered events in which the monetary value of
payments and things given to employees increased over the
years as the Company expanded its operations. At each Christ-
mas party hosted by Woodcock at the Company facility from
December 2008 through December 2011, he gave a total of
between $5000 and $15,000 to unit employees through cash,
checks, gift cards, TVs, clothing, raffle tickets for prizes, in-
cluding cruises and other trips. On at least one occasion, pay-
ments were also distributed by the dispatch office prior to the
Christmas party. The monetary value of each payment or thing
given to each employee ranged in value from $50 to $500.
Here, the critical issue is whether the distribution chain of
some form of Christmas compensation was broken in instances
when employees were given raffle tickets and a chance to win
valuable prizes. In Benchmark Industries, the Board found an
employer had not violated Section 8(a)(5) when it unilaterally
ended its practice (in existence for at least 3 years) of giving
employees hams and holiday lunches or dinners as a Christmas
bonus. Benchmark Industries, 270 NLRB 22 (1984). The
Board concluded these were token items which could not be
fairly characterized as compensation or as terms and conditions
of employment. Id. Additionally, in Harvstone, the Board held
that unilaterally discontinued Christmas bonuses, prizes and
parties were in the nature of gifts rather than terms and condi-
tions of employment. Harvstone Mfg. Corp., 272 NLRB 939
(1984). However, in Benchmark, the Board plurality noted that
the facts did not involve discontinuance of Christmas cash bo-
nuses. Also, the Board acknowledged that “[i]n our view there
are circumstances where Christmas bonuses may become part
of the employees’ remuneration and, therefore, a subject over
which an employer must bargain with a union prior to discon-
tinuing such payments.” Freedom Wlne-TV, 278 NLRB 1293,
1296 (1986), citing Benchmark, supra at fn. 5. The present
circumstances are those in which the Christmas payments con-
stituted bonuses and a mandatory subject of bargaining.
These Christmas payments were given in the context of the
employment relationship. The Company insists that these pay-
ments were “gifts” made on behalf of Woodcock family’s per-
sonal funds and are, therefore, not attributable to the Company.
Its claim is bolstered by the absence of any documentary evi-
dence to refute Woodcock’s credible testimony that the cash
and checks given, and gift cards and prizes procured came from
personal funds. However, the remaining circumstantial evi-
dence strongly supports the charge that the Christmas payments
were distributed on behalf of the Company. See H.S.M. Ma-
chine Works, Inc., 284 NLRB 1482, 1494 (1987) (cash pay-
ments and personal gifts given by owner of 95 percent of com-
pany deemed given by the company), citing NLRB v. Rubatex
Corp., 601 F.2d 147, 150 (4th Cir. 1979). First, Woodcock and
his wife were majority owners of the Company. Secondly, the
payments were given at the Christmas party, which was held at
the Company’s facility (since an employee always had to be on
shift) or by the dispatch office. Employees only received a
payment if they attended the party. Lastly, while Woodcock
denied that the purpose of the party and payments were em-
ployee retention-based, it was no doubt aimed at boosting em-
ployee morale, since employees had to be present to receive a
gift and the event made them interact.
Additionally, it appears that all unit employees who attended
the party received a Christmas payment in some form or anoth-
er. Only employees who recently started working for the Com-
pany were ineligible for cash payments. For example, Ugaitafa
only received a $50 coffee gift card instead of being entered
into the drawing, since he had only worked for the Company
ADVANCED LIFE SYSTEMS, INC. 17
for one month as of December 2011. Regardless of the payment
form, Woodcock distributed significant payments to unit em-
ployees, ranging from $50 to $500. In 2011, prior to the Un-
ion’s arrival, Woodcock sought the employees’ approval to
forgo Christmas payments and, instead, give the total funds to
an employee who lost his house in a mudslide. This series of
events demonstrates that the Company knew that unit employ-
ees expected to receive Christmas payments in some form or
another. Considering that most unit employees received pay-
ments, the significance of the amount, and the consistency of
the payments, Woodcock’s practice created a reasonable expec-
tation among unit employees that the Christmas party payment
would be received as part of their remuneration from employ-
ment. See Laredo Coca-Cola Bottling Co., 241 NLRB 167,
173–174 (1979), enfd. 613 F.2d 1342–1343 (5th Cir. 1980),
cert. denied 449 U.S. 889 (1980) (unlawful discontinuance of a
Christmas bonus where it was given the previous 3 years and
employees received payments in the form of cash, beer, soda,
hams, or fruitcakes based on employee earnings and subjective
evaluation of employee’s performance and attitude).
Finally, Woodcock discontinued the payments in 2012 and
2013, both subsequent to the union certification. Woodcock
attributed this to a myriad of factors, including the need to help
a family member with financial difficulties, increased business
competition from a competitor, American Medical Response,
and decreased margins in the Company’s reimbursement sys-
tem from Medicare and Medicaid. Specifically, he claims that
profits were down and he could not afford to distribute pay-
ments as he had in the past. The Company also notes that it did
not deduct the payments as business expenses.
In relying on such economic arguments, however, Woodcock
essentially conceded that past Christmas payments were bonus-
es because they were tied to production and the financial health
of the Company. See North American Pipe Corp., 347 NLRB at
837; Sykel Enterprises, 324 NLRB at 1124–1125. Moreover,
the Company’s failure to report the payments as business ex-
penses is inconsequential, as unreported tax withholdings alone
are insufficient to prove that payments are gifts, and not bonus-
es or wages. See North American Pipe Corp., 347 NLRB at
840.
Under the circumstances, the Company’s discontinuation of
payments at its annual Christmas party violated Section 8(a)(5)
and (1) of the Act.
II. THE 8(A)(1) VIOLATIONS
The complaint also alleges that Woodcock made several co-
ercive statements to employees relating to the Union: (1) that
he would not be able to give them raises if they voted for the
Union; (2) subsequently, after the Union was certified as labor
representative, that he could not give them their raises because
the Union was there; and (3) that he did not need to give wage
increases during contract negotiations. The Company denies the
allegations.
Section 8(a)(1) of the Act makes it an unfair labor practice
for an employer “to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in section [7 of the
Act].” 29 U.S.C. § 158(a)(1). Section 7 rights include the right
“to self-organization, to form, join, or assist labor organizations
[and] to bargain collectively through representatives of their
own choosing.” 29 U.S.C. § 157.
Statements that the Company would not be able to give em-
ployees raises if they voted for the Union and, subsequently, if
a union represented them, would certainly run afoul of the Act.
Such statements would be unlawful because they constitute
threats of reprisal. Winkle Bus Co., 347 NLRB 1203, 1205 fn.
12 (2006). In this case, Woodcock told Schauer, prior to the
representation election, that he would be unable to give raises if
employees voted in favor of the union. That statement effec-
tively restrained protected Section 7 activity. See Milum Tex-
tile Services Co., 357 NLRB 2047, 2058 (2011) (implicitly
threatening to reduce wages if employees selected union). Simi-
larly, Woodcock’s statement that he would freeze pay raises
because employees were now represented by a union, constitut-
ed a threat of reprisal. Teksid Aluminum Foundry, 311 NLRB
711, 712–713 (1993) (explicit threat of wage freeze).
Similarly, Woodcock told employees unit employees that
pay raises had always been discretionary and, since they select-
ed a union to represent them, now needed to be negotiated.
Jensen Enterprises, 339 NLRB 877, 877 (2003) (employer’s
statement that wages would be frozen until a collective-
bargaining agreement is unlawful if employer has a past prac-
tice of granting periodic wage increases). First Student, Inc.,
341 NLRB 136, 141 (2004) (employer's announcement to em-
ployees that there would be no wage increase during negotia-
tions, notwithstanding history of providing annual wage in-
creases, violated Sec. 8(a)(1)); Illiana Transit Warehouse
Corp., 323 NLRB 111, 113–114 (1997); 299 Lincoln Street,
Inc., 292 NLRB 172, 174 (1988); More Truck Lines, 336
NLRB 772, 773–775 (2001), enfd. 324 F.3d 735 (D.C. Cir.
2003). Such an announcement suggested to employees that the
employer intends to unilaterally take away benefits and require
the union to negotiate to get them back. See also Covanta En-
ergy Corp., 356 NLRB 706, 717 (2011). Under the circum-
stances, the Company violated Section 8(a)(1) of the Act.
III. THE 8(A)(3) VIOLATION
The complaint alleges that the Company also violated Sec-
tion 8(a)(3) of the Act by eliminating its customary biannual
wage increases raises for a majority of its employees since
July/August 2012 and Christmas bonuses after December 2011
because a majority of its employees voted in favor of the Union
to served as their labor representative and engaged in concerted
activities, and to discourage these or other protected concerted
activities. The Company denies the allegations.
An employer violates Section 8(a)(3) by taking adverse ac-
tion against an employee because the employee engages in, or
is suspected of engaging in, union activities. Mays Electric Co.,
343 NLRB 121, 134 (2004). Under Wright Line, 251 NLRB
1083 (1980), enfd. 602 F.2d 899 (1st Cir. 1981, cert. denied
455 U.S. 989 (1982), the General Counsel has the burden of
establishing that union activity was a motivating factor in the
Respondent's action alleged to constitute discrimination in vio-
lation of Section 8(a)(3) of the Act. The elements required to
support such prima facie violations of Section 8(a)(3) are union
or other protected concerted activity by employees, employer
knowledge of the activity, and a connection between union
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
animus by the employer and adverse employment action. See,
e.g., Consolidated Bus Transit, 350 NLRB 1064, 1065 (2007);
Desert Springs Hospital Medical Center, 352 NLRB 112
(2008); American Gardens Management Co., 338 NLRB 644,
645 (2002). Once the General Counsel has established a prima
facie case, the burden shifts to the Respondent to show it would
have, and not merely could have, terminated an employee even
in the absence of protected activity. Chadbury Beverages, Inc.
v. NLRB, 160 F.3d 24, 31 (D.C. Cir. 1998).
There is no dispute that the Company knew that employees
voted in favor of union representation and, after the Union was
certified, proceeded to discontinue its past practice of granting
periodic wage increases and Christmas payments. Considering
his prior consistent practice of paying Christmas bonuses,
Woodcock was clearly making a statement that the injection of
the Union into the employer-employee relationship would have
repercussions; his discontinuance of the wage increases and
Christmas bonuses evidenced animus toward the Union.
Moreover, the aforementioned 8(a)(1) violations of threats to
freeze wages before the Union was certified and then freezing
wages after the Union came in, shed additional evidence of
Woodcock’s animus and unlawful motivation. See Ridgeview
Industries, 353 NLRB 1096, 1097 fn. 3 (2009) (evidence of
numerous 8(a)(1) violations is sufficient to demonstrate unlaw-
ful motive with respect to an 8(a)(3) violation).
The burden thus shifts to the Company to demonstrate that it
would have, even in the absence of union certification, frozen
wages and Christmas payments. Woodcock attributed the wage
freeze to increased competition and health insurance costs, and
decreased governmental reimbursement rates. However, his
vague explanation was insufficient to overcome the clearly
pretextual nature of his actions and fell short of meeting the
Company’s rebuttal burden. See Stevens Creek Chrysler Jeep
Dodge, 357 NLRB 633, 637 (2011), enfd. sub nom. Mathew
Enterprises. v. NLRB, 498 Fed.Appx. 45 (D.C. Cir. 2012) (find-
ing of pretext defeats an employer's attempt to meet its rebuttal
burden).
Under the circumstances, the Company violated Section
8(a)(3) and (1) of the Act. An argument can be made that the
finding and conclusion that the wage freeze violated Section
8(a)(5) makes it unnecessary to sustain an 8(a)(3) violation. See
Bryant & Stratton Business Institute, 321 NLRB 1007 fn. 4
(1996) (unnecessary to pass on alternative finding that wage
freeze also violated Section 8(a)(3) in light of finding that the
wage freeze violated Section 8(a)(5) and that finding would not
materially affect the remedy). Such a decision, however, is one
best left to the Board upon review of any exceptions to my
findings and conclusions.
IV. STANDING TO ISSUE COMPLAINT
Finally, the Company asserts as an affirmative defense that
the Regional Director of Region 19 and then-Acting General
Counsel were improperly appointed based, in part, on a lack of
quorum and, thus, lacked standing to issue this complaint, un-
der Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), pet.
for cert. pending, No. 12–1281 (filed Apr. 25, 2013). The
Board rejected that argument in Belgove Post Acute Care Cen-
ter, 359 NLRB 633 (2013), and Bloomingdale's, Inc., 359
NLRB 1015 (2013).
CONCLUSIONS OF LAW
1. By telling unit employees that they will not get raises if
they choose, or have chosen, to be represented by a union, the
Company violated Section 8(a)(1) of the Act.
2. By refusing to give unit employees wage increases be-
cause they chose to be represented by a union, the Company
violated Section 8(a)(1) of the Act.
3. By refusing to give employees their traditional Christmas
payments because they chose to be represented by a union, the
Company violated Section 8(a)(1) of the Act.
4. By unilaterally ceasing to grant established wage increases
to unit employees, the Company violated Section 8(a)(5) and
(1) of the Act.
5. By unilaterally ceasing to grant Christmas payments to
unit employees, the Company violated Section 8(a)(5) and (1)
of the Act.
6. By discontinuing its custom and practice of granting unit
employees periodic wage increases and Christmas payments
because the employees chose to be represented by a union, the
Company violated Section 8(a)(3) and (1) of the Act.
7. The aforementioned unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended28
ORDER
The Company, Advanced Life Systems, Inc., Yakima, Wash-
ington, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the National Emergency Medi-
cal Services Association

(“the Union) as the duly designated representative of a majority
of its employees in the bargaining unit appropriate for purposes
of collective bargaining (the “unit”), within the meaning of
Section 9(b) of the Act:

All full-time, regular part-time and per diem EMT’s, para-
medics and dispatchers employed by us out of our Yakima,
Washington facilities, but excluding all other employees,
maintenance employees, and guards and supervisors as de-
fined in the National Labor Relations Act.

(b) Telling unit employees that they will not get raises if they
choose, or have chosen, to be represented by a union.
(c) Refusing to give unit employees wage increases because
they chose to be represented by a union.

28 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
ADVANCED LIFE SYSTEMS, INC. 19
(d) Unilaterally ceasing to grant established wage increases
to unit employees.
(e) Unilaterally ceasing to grant established Christmas pay-
ments to unit employees.
(f) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of their rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request of the Union, reinstate the practice of provid-
ing unit employees with a wage increase of at least 25 cents an
hour every 6 months.
(b) On request of the Union, reinstate the practice of provid-
ing a Christmas payment.
(c) Fully remedy its failure to provide its established practice
of wage increases, within 14 days from the date of this Order,
by making unit employees whole for any loss of earnings and
other benefits they suffered as a result of the Company’s ac-
tions, by ordering the Company to provide a wage increase of
at least 25 cents an hour, 6 months from the date of employees’
last wage increase in 2011–2012, with an additional increase of
at least 25 cents an hour at 6-month intervals after that point.
(d) Fully remedy its failure to follow its established practice
of wage increases within 14 days from the date of this Order by
making unit employees whole for any loss of earnings and oth-
er benefits they suffered as a result of the Company’s actions,
by ordering the Company to provide unit employees a Christ-
mas payment for 2012 and 2013 in an amount not less than an
employee’s last Christmas payment.
(e) Within 14 days after service by the Region, post at its six
facilities in Yakima, Washington, copies of the attached notice
marked “Appendix.”29 Copies of the notice, on forms provided
by the Regional Director for Region 19, after being signed by
the Company’s authorized representative, shall be posted by the
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the
notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Company customarily communicates with its
employees by such means. Reasonable steps shall be taken by
the Company to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Company has gone out of
business or closed the facility involved in these proceedings,
the Company shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Company at any time since July 2012.
(f) Reasonable steps shall be taken by the Company to en-
sure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these
proceedings, the Company has gone out of business or closed

29 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the facility involved in these proceedings, the Company shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Company at any time since July 2012.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. May 2, 2014

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT do anything to prevent you from exercising the
aforementioned rights.
WE WILL NOT refuse to bargain in good faith over terms and
conditions of employment with your designated exclusive bar-
gaining representative in the following bargaining unit:

All full-time, regular part-time and per diem EMT’s, para-
medics and dispatchers employed by us out of our Yakima,
Washington facilities, but excluding all other employees,
maintenance employees, and guards and supervisors as de-
fined in the National Labor Relations Act.

WE WILL NOT tell you that you will not get raises if you
choose to be represented by a union.
WE WILL NOT tell you that we cannot give you a raise be-
cause you choose to be represented by a union.
WE WILL NOT fail to give you raises because you chose to be
represented by a union.
WE WILL NOT fail to give you a holiday payment or gift be-
cause you chose to be represented by a union.
WE WILL NOT unilaterally, and without notifying and/or bar-
gaining with your union, cease giving you raises.
WE WILL NOT unilaterally, and without notifying and/or bar-
gaining with your union, stop giving you a holiday payment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL upon request, bargain in good faith over subjects
covering wages, hours, and other terms and conditions of your
employment.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL reinstate our past practice of giving raises and holi-
day payments.
WE WILL pay you for the wages and other benefits lost be-
cause we unilaterally ceased giving you raises and holiday
payments.
ADVANCED LIFE SYSTEMS, INC.

The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/19–CA–096464 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.