Reliable Ambulance Service, Inc.

National Labor Relations Board - Board Decisions

Jul 8, 1981

256 N.L.R.B. 1165 (N.L.R.B. 1981)

RELIABLE AMBULANCE SERVICE, INC. 1165
Reliable Ambulance Service, Inc. and Local Union
No. 25, Service Employees International Union,
Petitioner. Case 13-CA- 15168
July 8, 1981
DECISION AND DIRECTION OF THIRD
ELECTION
The National Labor Relations Board has consid-
ered objections in a rerun election held on August
8, 1980,1 and the Acting Regional Director's report
recommending disposition of the same. The Board
has reviewed the record in light of Petitioner's ex-
ceptions and Employer's response to Petitioner's
exceptions, and hereby adopts the Acting Regional
Director's findings only to the extent herewith. 2
In his Report on Objections, the Acting Region-
al Director recommended that the portion of Peti-
tioner's Objection I dealing with Employer's an-
nouncement and implementation of a profit-sharing
plan be overruled. The Acting Regional Director
found that Employer announced the profit-sharing
plan on December 20, 1979, while objections to the
first election were still pending, and thereafter im-
plemented the plan, making two payments before
the second election.3 The Acting Regional Direc-
tor found that the announcement and implementa-
tion of the plan stemmed from Employer's past
promise of establishing a profit-sharing plan by the
end of 1979, and that it was not a response to Peti-
tioner's campaign. The Acting Regional Director
therefore concluded that Employer's announce-
ment and implementation of the profit-sharing plan
was not objectionable since the plan had been
under consideration prior to the start of the critical
period. Petitioner excepts to these findings, and we
find merit in Petitioner's exceptions.
The Acting Regional Director's finding is pre-
mised on the fact that Employer's promise of a
I The original election was held on September 21, 1979 Thereafter,
Petitioner filed timely objections to conduct affecting the results of the
election On July 8, 1980, the Board, in an unpublished decision, directed
a second election, which was held on August 8. 1980. The tally for the
second election was 3 votes for, and 11 votes against, Petitioner: there
were 5 challenged ballots, an insufficient number to affect the results.
2 In the absence of exceptions, we adopt pro forma the Acting Region-
al Director's recommendation that Petitioner's Objections 2, 3, 4, 5, and
be overruled In view of our disposition herein of the portion of Objec-
tion I dealing with profit sharing, we find it unnecessary to pass on the
remaining portion of Objection I and Objection 7
3 On March 29, 1980. Employer made its first distribution under the
plan. Full-time employees received $15(0.80. part-time employees received
S75.40, and occasional employees received between $50 and 556.55 A
second distribution occurred on or about July lb. 1980
256 NLRB No. 174
profit-sharing plan was made prior to the first elec-
tion. The Acting Regional Director apparently rea-
soned that, because Employer's promise was made
outside the critical period for the second election,
Employer was entitled to announce and implement
its plan. The difficulty with this reasoning is that,
as we found in setting aside the first election, Em-
ployer's plan was first promised in direct response
to Petitioner's campaign during the critical period
of the first election, and was therefore objection-
able. 4
The profit-sharing plan subsequently announced
and implemented by the Employer as the fulfill-
ment of its earlier objectionable promise is similarly
objectionable. An employer is not free to carry out
an objectionable promise made during the critical
period of a first election, and then argue that he is
merely implementing a promise made at an earlier
time. 5 Rather, it is clear that the implementation of
a promise initially made to defeat a union is simply
another step in that effort, and is therefore objec-
tionable when undertaken during the critical period
of a subsequent election. Such a grant is designed
to assure continued employee support of an em-
ployer's position in a subsequent election. Triangle
Plastics, Inc., 166 NLRB 768, 775 (1967). We there-
fore find that Employer's announcement and imple-
mentation of the profit-sharing plan, made at a time
when objections to the first election were still
pending and the possibility of a second election
was very real, was an objectionable continuation of
its earlier objectionable promise. We accordingly
set aside the second election.
[Direction of Election and Excelsior footnote
omitted from publication.]
4 Employer's promise of a profit-sharing plan was the subject of one of
Petitioner's objections to the first election Concerning those objections,
we adopted the findings of the Hearing Officer that, during the critical
preelection period, Employer told its employees both individually and at
a group meeting that the Company had finally turned a profit and that
employees would benefit as a result of this profit The Hearing Officer
specifically discredited the testimony of Employer's president and owner.
Richard Golden, that Employer had told employees before the critical
period that they would share i the profits when the Company became
profitable; instead, the Hearing Officer found that Employer's promise of
benefits was in direct respnsec to Petitioner's campaign and the inmpend-
ing election
s The Acting Regionral Director erred In his assumption that the two
critical periods could be analyzed completely separately The initial
promise, while made outside the second critical period, was still objec-
tionable conduct made during the first critical period in response to the
Union' carlmpaigln