Rural/Metro Medical

National Labor Relations Board - Board Decisions

Oct 30, 1998

327 N.L.R.B. 49 (N.L.R.B. 1998)

RURAL/METRO MEDICAL SERVICES 49
Lasalle Ambulance, Inc., d/b/a Rural/Metro Medical
Services and International Brotherhood of
Teamsters, Local 375. Cases 3–CA–20837–3 and
3–RC–10568
October 30, 1998
DECISION, ORDER, AND DIRECTION
BY MEMBERS FOX, LIEBMAN, AND BRAME
Upon a charge filed on August 27, 1997 against La-
salle Ambulance, Inc., d/b/a Rural/Metro Medical Ser-
vices (the Respondent), the General Counsel of the Na-
tional Labor Relations Board issued a complaint and no-
tice of hearing on September 30, 1997. On August 22,
1997, the Charging Party/Petitioner filed timely objec-
tions in an election held August 22, 1997. On October 2,
1997, the Regional Director for Region 3 issued an Order
Directing Hearing on Objection, Order Consolidating
Cases, and Notice of Hearing consolidating the election
objection and the complaint herein.
The complaint alleges that the Respondent violated
Section 8(a)(1) by distributing a memorandum to all em-
ployees at its facility, on or about August 21, 1997, stat-
ing that if a union was voted in, the Respondent could
not change employee wages (including merit increases),
hours and working conditions, unless and until there is a
contract. The election objection alleges that the distribu-
tion of this memorandum interfered with employee free
choice in the election held August 22, 1997. The election
was conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 88 for and 140 against
the Petitioner, with 1 void ballot and 4 challenged bal-
lots, an insufficient number to affect the results.
On December 15, 1997, and January 23, 1998, the Re-
spondent, the Charging Party, and the General Counsel
jointly filed a motion to transfer proceedings to the
Board and a stipulation of facts. The parties agreed that
the petition for certification, the charge, the complaint
and notice of hearing, the answer, the Order Directing
Hearing on Objections, and the Order Consolidating
Cases and Notice of Hearing, together with the stipula-
tion and exhibits referred to in the stipulation, constitute
the entire record in this proceeding and that no oral tes-
timony is necessary or desired by any party. The parties
further stipulated that they waived a hearing before an
administrative law judge, and the making of findings of
fact and conclusions of law and the issuance of a deci-
sion by an administrative law judge, and that they desired
to submit this case directly to the Board for findings of
fact, conclusions of law, and the issuance of an order by
the Board.
On March 5, 1998, the Board issued an order approv-
ing the stipulation, granting the motion, and transferring
the proceeding to the Board. Thereafter, the Respondent
and the Acting General Counsel filed briefs.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
On the basis of the record and the briefs, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New York
corporation with an office and principal place of business
located in Buffalo, New York, has been engaged in the
nonretail operation of an ambulance service. Annually, in
conducting these business operations, the Respondent
purchases and receives goods and materials valued in
excess of $50,000 directly from points located outside
the State of New York.
At all material times, the Respondent has been an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. At all material times, the
Charging Party has been a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
It has been the Respondent’s policy and practice, since
the inception of the Respondent’s operations in the Buffalo
area in about mid-1995, to review employee performance
annually and to award merit increases ranging from no
increase to an 8-percent increase, based on the perform-
ance reviews, but entirely at the Respondent’s discretion.
The Respondent’s employee handbook states that per-
formance reviews are held annually following an em-
ployee’s anniversary date. However, following a promo-
tion an employee’s review date is changed to the promo-
tion anniversary date. The Respondent uses a chart speci-
fying the range of merit increases for a given performance
rating. Unit employees did not customarily receive any
other types of wage increases.
On June 23, 1997, the Union filed a petition to represent
certain of the Respondent’s employees. On August 20,
1997, the Respondent held an employee meeting. At this
meeting, an employee asked the Respondent’s regional
president, Kurt Krumperman, what would happen to the
merit increases if the Union was voted in. Krumperman
was unable to provide a definitive answer at the time. On
the afternoon of August 21, 1997, in response to the ques-
tion, the Respondent posted a memorandum to all employ-
ees, entitled “After the Union Election,” which stated

During a meeting last night, the question was asked as
to what would happen with performance reviews and
merit increases if the union is voted in. We were not
sure of the answer at the time but have since found out
that if the union is voted in, all issues connected with
wages, hours and working conditions are subject to ne-
gotiation. Therefore, the Company cannot change your
wages (which includes merit increases), hours and
working conditions unless and until there is a contract.
Performance reviews will continue as usual.

327 NLRB No. 18
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 50
Please feel free to contact me if you have any ques-
tions.

The memorandum stated that it was from the Respondent’s
general manager, Gary Zachrich. The wording of the
memorandum was based on the Respondent’s understand-
ing of the law and the process of collective bargaining. The
memorandum was posted on bulletin boards at the Respon-
dent’s Buffalo, Amherst, Cheektowaga, and Niagara Falls
facilities, at which the employees eligible to vote in the Au-
gust 22 election were employed.
B. Contentions of the Parties
The Acting General Counsel asserts that the statements
in the Respondent’s August 21, 1997 memorandum inter-
fered with, restrained, and coerced employees in the ex-
ercise of their Section 7 rights and interfered with their
free choice in the election held the day after the memo-
randum was issued. The Acting General Counsel con-
tends that similar statements concerning effects of un-
ionization on wage increases were found unlawful in
Pyramid Management Group, 318 NLRB 607 (1995),
enfd. No. 95–4148 (L) (2d Cir. April 1, 1996) (unpub-
lished), and Teksid Aluminum Foundry, 311 NLRB 711,
711 fn.2., 717 (1993).
The Respondent asserts that the memorandum consti-
tutes a lawful expression of the Respondent’s opinion
concerning the likely consequences of unionization pro-
tected by Section 8(c) of the Act. According to the Re-
spondent, its merit increases were “highly discretionary”
and, therefore, could not be provided during contract
negotiations without violating the Respondent’s duty to
maintain the status quo with respect to wages and other
mandatory subjects of bargaining. The Respondent also
asserts that the memorandum did not include any threat
of reprisal that the Respondent intended to take of its
own volition, but instead merely stated the Respondent’s
belief concerning its legal obligations in the event the
Union won the election. It argues that there is no evi-
dence that it would not move forward with the merit in-
creases because it did not wish to do so, nor that it in-
tended to withhold such increases permanently. The Re-
spondent states that similar statements to employees have
been found to be lawful, citing, inter alia, Bonwit Teller,
Inc. v. NLRB, 197 F.2d 640 (2d Cir. 1952).
C. Analysis and Conclusions
It is settled law that when employees are represented
by a labor organization, their employer violates Section
8(a)(5) by unilaterally changing their terms and condi-
tions of employment, such as their wages or their wage
system, regardless of the employer’s motivation in doing
so. NLRB v. Katz, 369 U.S. 736, 747 (1962). When an
employer has an established practice of granting wage
increases according to fixed criteria at predictable inter-
vals, a discontinuance of that practice constitutes a
change in terms and conditions of employment even if
the amounts of increases have varied in the past. Daily
News of Los Angeles, 315 NLRB 1236, 1237–1241
(1994), enfd. 73 F.2d 406 (D.C. Cir. 1996). Accord:
Bryant & Stratton Business Institute, Inc. v. NLRB, 140
F.3d 169, (2d Cir. 1998), enfg. 321 NLRB 1007 (1996).
Thus, an employer’s pre-election statement that it
planned to discontinue an established system of merit
wage increases if the union won the election would not
be an accurate description of actions that could be law-
fully taken as part of the collective-bargaining process.
Applying these principles to this case, we find that the
Respondent, by the August 21, 1997 memorandum, un-
lawfully threatened employees with the withholding of
their merit increases. Thus, the memorandum plainly
states that if the Union wins the election, the employees
will not receive merit wage increases “unless and until
there is a contract.” Given the employees’ reasonable
understanding of the Respondent’s wage system, the
memorandum thus implies that if the Union wins the
election, the employer will, in violation of its statutory
obligation, automatically discontinue the employees’
system of annual wage increases based on their perform-
ance evaluations until a contract is reached.1 For the
reasons set forth below, that system was an established
term and condition of employment. Such a statement,
threatening the loss of so salient a benefit as anticipated
wage increases simply as the price of electing a collec-
tive bargaining representative, is clearly coercive and
violates Section 8(a)(1) of the Act. Pyramid Manage-
ment Group, supra; Teksid Aluminum Foundry, supra.2
Contrary to the Respondent, its statement that if the
employees voted for the Union it could not change wages
unless and until there was a contract is not protected
speech under Section 8(c) of the Act. Section 8(c) pro-
vides as follows:

The expressing of any views, argument, or opinion, or
the dissemination thereof . . . shall not constitute or be
evidence of an unfair labor practice under any of the
provisions of this subchapter, if such expression con-
tains no threat of reprisal or force or promise of benefit.

As noted above, the Respondent’s August 21, 1997 memo-
randum does contain a threat. Accordingly, Section 8(c) is

1 The Respondent’s memorandum does not expressly state that it
would continue to grant merit wage increases if the Union lost the
election. However, the merit increases were an established practice
specified in the Respondent’s employee handbook. Moreover, the
memorandum stated that the Respondent was retaining the performance
evaluations, which were an integral part of the merit pay program.
Under these circumstances, employees would reasonably infer that the
merit wage increases would be granted if the Union lost.
2 Although not determinative, we find that the coercive impact of the
Respondent’s announcement is heightened by the fact that employees
customarily did not receive any other type of wage increase, and by the
fact that the announcement was distributed the day before the election,
albeit in response to a question posed by an employee on the prior day.
RURAL/METRO MEDICAL SERVICES 51
not applicable. Pyramid Management Group, supra, 318
NLRB at 608.3
Likewise, there is no merit to the Respondent’s further
contention, which is, in essence, that its memorandum
merely restates its obligation under the law to bargain
with the Union, if it won the election, before changing
terms and conditions of employment. As explained
above, an automatic discontinuance of a regular system
of wage increases would constitute a change in terms and
conditions. Thus, the Respondent’s statement was a
threat to unilaterally withhold scheduled benefits, in vio-
lation of its obligation under the law, not an accurate
explanation of the nature of that obligation.
In this regard, a merit wage program will be found to
be a term and condition of employment when it is an
“established practice . . . regularly expected by the em-
ployees [footnote omitted].” Daily News of Los Angeles,
supra, 315 NLRB at 1236. As discussed below, relevant
factors in this determination include the number of years
that the program has been in place, the regularity with
which raises are granted, and whether the employer used
fixed criteria to determine whether an employee will re-
ceive a raise, and the amount thereof.
For example, in Daily News of Los Angeles, employees
received annual performance appraisals on their anniver-
sary date, and were awarded wage increases in an
amount determined solely by the employer in its discre-
tion but solely on the basis of their evaluation. The em-
ployer had maintained the program for three years, ever
since it acquired the company from a predecessor. Like-
wise, in Bryant & Stratton Business Institute, the em-
ployer evaluated employees either on their anniversary
date or in July of each year, and granted wage increases
on the basis of that evaluation. The employer had fol-
lowed this practice for the preceding 10 years with only
one exception: in 1988 the employer had suspended in-
creases at one of its three locations for economic reasons.
In both Daily News of Los Angeles and Bryant & Strat-
ton Business Institute, the Board found that the merit
increase program was a term and condition of employ-
ment, and further found that the employers in those cases
had violated Section 8(a)(5) by withholding the merit
increases after their employees had voted for union rep-

3 The Respondent argues that the Board has found lawful employer
statements, during an organizing campaign, that if the union is selected
benefits will be established through bargaining and there is no guaran-
tee that the bargaining process will result in maintenance or improve-
ment of existing benefits, citing, inter alia, Mediplex of Connecticut,
319 NLRB 281 (1995), Checker Motors, 232 NLRB 1077 (1977),
Computer Peripherals, 215 NLRB 293 (1974), and Armstrong Tire &
Rubber, 119 NLRB 382 (1957). However, as the Board held in Com-
puter Peripherals, such statements are lawful where there is “no express
or implied threat that [the employer] would unilaterally take away
benefits and require the Union to negotiate to get them back. . . .” 215
NLRB at 294. As discussed below, that is precisely the effect of the
Respondent’s statement. Accordingly, the cases cited by the Respon-
dent are distinguishable.
resentation. These determinations were enforced by the
D.C. and Second Circuit courts of appeals, respectively.
We find no meaningful distinction between the merit
increase program in this case and those in Daily News of
Los Angeles and Bryant & Stratton Business Institute.
The Respondent’s merit increase program, like those in
Daily News of Los Angeles and Bryant & Stratton Busi-
ness Institute, calls for increases on a specific schedule
(here the employee’s anniversary date), and uses specific
criteria (the employee’s evaluation). The discretionary
aspects of the program are further constrained by the
Respondent’s chart setting forth the acceptable ranges for
a merit increase for any given evaluation. Moreover, the
Respondent has maintained this practice since the incep-
tion of operations in Buffalo in mid-1995. Under these
circumstances, the Respondent was not only permitted,
but was in fact required to maintain the merit increase
program, if the Union won the election, unless a change
was negotiated with, and agreed to by, the Union or the
parties reached impasse after good-faith bargaining.4 In
Daily News of Los Angeles, the court stated that the “cru-
cial question is what Katz requires of an employer if an
established merit wage increase program is fixed as to
timing and criteria but discretionary as to amount” and
the court answered that, in such circumstances, “Katz
demands that the company continue to apply the same
criteria and use the same formula for awarding increases
during the bargaining period as it had previously.” 73
F.3d at 412. The Respondent’s memo threatens not to do
this.5
4 The issue here, involving threatened unilateral discontinuance of an
existing merit increase system is distinguishable from the issue in
McClatchy Newspapers, 321 NLRB 1386 (1996), enfd. 131 F.3d 1026
(D.C. Cir. 1997), which involved implementation upon impasse of an
expansion of an existing merit increase system.
Member Brame agrees with his colleagues that McClatchy Newspa-
pers is distinguishable. He therefore does not pass on whether that case
was correctly decided.
5 Bonwit Teller, Inc. v. NLRB, supra, upon which the Respondent re-
lies, concerned two different types of statements about the withholding
of wage increases, neither of which the Second Circuit deemed unlaw-
ful. Those holdings, however, are not dispositive of the issue in this
case.
A statement by the president of Bonwit Teller that the employer
would not put through wage increases before the election “lest we be
accused of an unfair labor practice” is similar to statements dealt with
in Atlantic Forest Products, 282 NLRB 855, 857–859 (1987), and cases
cited therein. The issue resolved in those cases—what steps an em-
ployer may lawfully take with respect to actions during the critical
period prior to the election to avoid having the grant of a wage increase
appear to be a bribe aimed at influencing the election—is different from
the issue here, i.e. what an employer may say about actions he will take
in the event the union wins the election.
Another statement by a Bonwit Teller supervisor (Neimark) that, if
the union were voted in, the employees would not get a scheduled wage
increase until a contract were negotiated is similar to the statement
here. The Bonwit Teller court’s holding that this statement was an
accurate description of the bargaining process is based on reasoning
that was undermined by the Supreme Court’s later decision in NLRB v.
Katz, supra. Thus, as indicated above, the Second Circuit, in a post-
Katz decision, Bryant & Stratton Business Institute, supra, acknow-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 52
For the foregoing reasons, we find that the Respon-
dent’s August 21, 1997 announcement that if the Union
were voted in, the Respondent could not change em-
ployee wages (including merit increases) unless and until
there was a contract violated Section 8(a)(1) of the Act.
We further find that the announcement, which was made
the day before the election, also constituted objectionable
conduct to the election held August 22, 1997. Pyramid
Management Group, supra.6
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
3. By telling employees that if the Union was voted in,
it could not change employee wages (including merit
increases) unless and until a contract was signed, the
Respondent has interfered with, restrained, and coerced
employees in the exercise of the rights protected by Sec-
tion 7 of the Act, and has violated Section 8(a)(1) of the
Act.
4. By the acts and conduct set forth in paragraph 3
above, the Respondent interfered with the conduct of the
election held August 22, 1997.

ledged that, in a unit with a collective-bargaining representative, an
employer’s unilateral discontinuance of an established merit increase
practice does violate Sec. 8(a)(5) and (1) of the Act. A statement
threatening to take such action would, therefore, be a coercive threat to
invade statutory rights.
6 Member Brame agrees with his colleagues that a violation has been
made out on the facts of this case. As a general proposition, however,
he finds that the law in this area, as interpreted by the Board, is to some
extent counter-intuitive. First, employers relying on “at-will” employ-
ment routinely reserve discretion to change the amount, timing and
form of pay increases. Thus, they are, for purposes of general contract
law, not an enforceable “term and condition” but an unenforceable
expectancy or hope. Second, an employer wishing to take no risks of
interfering with an election and avoid the charge that it “bribed” its
employees cannot safely wait until after the election to grant a wage
increase. And if the employer continued its past practice, it would be
subject to being second-guessed that it paid too much (a “bribe”) or too
little (a “threat”), too soon or too late. The common (and recom-
mended) practice of retaining discretion on pay increases, thus, puts
employers at risk whether they act or fail to act. As Judge Randolph
noted in his dissent in Perdue Farms, Inc., Cookin’ Good Division v.
NLRB, 144 F.3d 830 (D.C. Cir. 1998), with respect to the issue of pre-
election increases,
[w]hen a traffic light simultaneously blinks “Stop” and “Go” everyone
knows repairs are needed. If a motorist encountering the light pro-
ceeds ahead while another motorist pauses, it is unimaginable that
both would be guilty of failing to heed the signal. The Board’s “law”
governing pre-election wage increases is like the faulty traffic light
and the Board’s enforcement of that “law” approaches the unimagin-
able.
Likewise, in Acme Die Casting v. NLRB, 93 F.3d 854 (D.C. Cir. 1996),
denying enf. to 317 NLRB 1353 (1995), the court castigated the Board
for failing to identify the circumstances in which a merit increase pro-
gram would be considered a term and condition of employment. Mem-
ber Brame agrees with the D.C. Circuit and with Judge Randolph that
the Board’s failure to provide guidance to employers in this general
area is unfortunate and must be corrected.
REMEDY
Having found that the Respondent has violated Section
8(a)(1), we shall order it to cease and desist and to take
certain affirmative action that will effectuate the policies
of the Act. We also find that the election held August 22,
1997 must be set aside and a new election held.
ORDER
The National Labor Relations Board orders that the
Respondent, Lasalle Ambulance, Inc., d/b/a Rural/Metro
Medical Services, Buffalo, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that if the Union were voted in,
it could not change employee wages (including merit
increases) unless and until a contract was signed.
(b) 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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its Buffalo, Amherst, Cheektowaga, and Niagara Falls,
New York facilities copies of the attached notice marked
“Appendix.”7 Copies of the notice, on forms provided by
the Regional Director for Region 3, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed any of the facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since August 21, 1997.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the election held on
August 22, 1997, in Case 3–RC–10568, is set aside and
that the case is remanded to the Regional Director for
Region 3 for the purpose of conducting a new election.
[Direction of Second Election omitted from publica-
tion.]

7 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.”
RURAL/METRO MEDICAL SERVICES 53
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT tell employees that, if the Union is
voted in, we cannot change your wages (including merit
increases) unless and until there is a contract.
WE WILL NOT in any like or related manner, inter-
fere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.

LASALLE AMBULANCE, INC., D/B/A
RURAL/METRO MEDICAL SERVICES