Network Ambulance Services

National Labor Relations Board - Board DecisionsAug 31, 1999

329 N.L.R.B. 1 (N.L.R.B. 1999)

NETWORK AMBULANCE SERVICES 1 Network Ambulance Services, Inc. and International Association of EMTs & Paramedics, National Association of Government Employees, a/w Ser- vice Employees International Union, AFL–CIO, Petitioner. Case 4–RC–19511 August 31, 1999 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FOX, LIEBMAN, AND HURTGEN The National Labor Relations Board, by a three- member panel, has considered objections to an election held on October 16, 1998, and the hearing officer’s re- port recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agree- ment. The tally of ballots showed 9 for and 25 against the Petitioner, with no challenged ballots. The Board has reviewed the record in light of the Em- ployer’s exceptions and supporting brief, and has adopted the hearing officer’s recommendations only to the extent consistent with this decision. Contrary to the hearing officer, the Board finds no objectionable conduct and concludes that a certification of results of election should be issued. The hearing officer recommended that the Board over- rule the Union’s objections concerning the Employer’s granting of sick pay and one additional fixed holiday (Easter Sunday) during the critical period before the elec- tion, and concerning an election-related raffle the Em- ployer held for employees the same day as the election. The hearing officer also found that the Employer’s an- nouncement of a new annual benefit consisting of two floating holidays during the critical period was not objec- tionable because the Employer and its corporate owner had an established practice of announcing new employee benefits during the month of September, during which month the announcement was made.1 However, the hearing officer found that the actual implementation of the new benefit of floating holidays on October l, 1998,2 was objectionable and accordingly recommended that the election be set aside. The record establishes that the Employer, Network Ambulance Services (Network), is a subsidiary of Gene- sis Health Ventures (Genesis), which employs about 47,000 employees at its facilities in a number of States. During the critical period, Network had 42 full-time and part-time health care and office employees, who com- prised the voting unit. On September 22—which was 24 days before the election3—Network circulated a memo informing its employees that “the following new bene- fits,” including two floating holidays a year, would “be available beginning 10/1/98” for full-time employees. As the hearing officer noted, the Employer’s vice presi- dent, Michael Kling, testified without contradiction that this new benefit was given to all Genesis employees, effective October 1, at the direction of Genesis manage- ment; that none of Genesis’ employees enjoyed the bene- fit prior to that date; and that it was Genesis’ policy to offer the same benefits package to all of its employees. 1 In the absence of exceptions we adopt, pro forma, the hearing offi- cer’s recommendations concerning all of the foregoing objections. 2 All dates are in 1998 unless otherwise indicated. 3 The Union filed its petition for recognition with the Board on Sep- tember 1, 1998. The hearing officer found the granting of the floating holidays to Network employees to be objectionable on the grounds that “no reason has been advanced by the Employer which would explain why it needed to put into effect the new benefit of floating holidays beginning Oc- tober 1, 1998, during the critical period instead of defer- ring this benefit pending the election’s outcome.” In the hearing officer’s view, under Kauai Coconut Beach Re- sort, 317 NLRB 996, 997 (1995), the employer was re- quired either to defer announcing and implementing the new benefit until after the election, or to inform the em- ployees that implementation of the new benefit would be deferred until after the election in order to avoid the ap- pearance of election interference. In view of the em- ployer’s “speedy implementation” of the floating holi- days during the critical period, the hearing officer con- cluded that the implementation was intended to deter employees from voting for the Union. As the hearing officer noted, benefits granted during the critical preelection period are coercive, and therefore objectionable, if they are granted for the purpose of in- fluencing the employees’ vote and are of a type reasona- bly calculated to have that effect. NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964). The Board has drawn an inference that benefits granted during the criti- cal period are coercive, but an employer may rebut this inference by showing that the action was motivated by a legitimate business purpose unrelated to the election. Perdue Farms, 323 NLRB 345, 352 (1997), modified on other grounds 144 F.3d 830 (D.C. Cir. 1998); B & D Plastics, 302 NLRB 245 (1991). As noted above, the hearing officer found that the floating holidays were made available for the first time to all Genesis employees, including Network’s, on October 1 on a corporatewide basis. In a number of cases where a multiunit corporation has granted corporatewide em- ployee benefits during the critical period before a Board election held at one of its subsidiaries, the Board has viewed the corporatewide nature of the action as evi- dence that the action was taken for legitimate business reasons and was not objectionable.4 4 E.g., Stanley Smith Security, 270 NLRB 225 (1984); American Sunroof Corp., 248 NLRB 748, 749 fn. 10 (1980), enfd. 667 F.2d 20 (6th Cir. 1981); Northern Telecom, Inc., 233 NLRB 1104, 1105 (1977). The Board’s approach in these cases has been based on the premise that, where there is no other indication of an antiunion motive, a multi- unit entity is unlikely to have granted a benefit to all of its employees 329 NLRB No. 13 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The record contains no evidence negating Kling’s credited testimony that the benefit was implemented solely at the direction of Genesis management, and for the sole purpose of equalizing Network’s benefits with those offered by Genesis to its other 42,000 employees as of October 1, 1998. As the hearing officer found, Gene- sis’ policy was to offer the same benefits package to all of its employees, and the Petitioner has not contended that Genesis’ other employees did not enjoy the two floating holidays after October 1.5 It was also Genesis’ practice to announce new employee benefits in Septem- ber and implement them on October 1, the beginning of its fiscal year. All of this is consistent with the Em- ployer’s contention that it was Genesis’ management, not Network’s, that made the decision to implement the two floating holidays for Network’s 42 employees in October 1998, and that the implementation was not related to the election. By the same token, there is no indication in the record that Genesis, in mandating the new benefit, was motivated by an intent to affect the election’s outcome. The hearing officer concluded, substantially for these reasons, that Network’s announcement of the new benefit on September 22 was not objectionable. He nevertheless found that the Employer was required to defer the actual implementation of the benefit until after the election. However, Kauai Coconut Beach Resort, supra, the sole authority on which the hearing officer relies for this find- ing, imposes no such requirement. Kauai, and similar cases preceding it, addressed the situation where an em- solely for the purpose of influencing an election that affected only a few. 5 While there is some indication, based on the text of a December 23, 1997 memo from Kling, that Genesis’ other employees may have been receiving a floating holiday even prior to October 1, and that they may have also begun to receive as many as three floating holidays after that date, there is no evidence to dispute that Genesis employees received at least two such floating holidays as of October 1, consistent with the September announcement. ployer, during a critical preelection period, had a legiti- mate concern that the Board might perceive a projected pay increase or benefit improvement as objectionable, even though the employer had made the decision to grant the improvement before the critical period. In such cases, the Board has permitted the employer to announce that, solely for the purpose of avoiding the appearance of influencing the election’s outcome, the scheduled im- provement will be deferred until after the election.6 317 NLRB at 997; Atlantic Forest Products, 282 NLRB 855, 858 (1987). However, we have not held or implied, in Kauai or any other case, that an employer is obligated to take this course of action. An announcement that an im- provement planned for legitimate business reasons will be deferred under these circumstances is rather an op- tional exception to the general rule that the employer is required to proceed with projected wage or benefit im- provements as if the union were not on the scene. Atlan- tic Forest, 282 NLRB at 858. Since Network has made a credited and uncontested showing that the new benefit was implemented for a law- ful purpose, and since there is no other evidence from which we could infer that the benefit was calculated to influence the election, we cannot find that the implemen- tation of the floating holidays was objectionable. We will accordingly certify the election results. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid ballots have not been cast for the International Association of EMTs & Paramedics, National Association of Government Em- ployees, a/w Service Employees International Union, AFL–CIO, and that it is not the exclusive representative of these bargaining unit employees. 6 Such an announcement must make it clear to employees that the improvement will occur regardless of whether they select a union, and it must also avoid the appearance of implying that the union is respon- sible for the delay. E.g., Atlantic Forest Products, supra.