SW General, Inc., d/b/a Southwest Ambulance

National Labor Relations Board - Board Decisions

May 8, 2014

360 N.L.R.B. 835 (N.L.R.B. 2014)

SOUTHWEST AMBULANCE 835
360 NLRB No. 109
SW General, Inc. d/b/a Southwest Ambulance and
International Association of Fire Fighters Local
I-60, AFL–CIO. Case 28–CA–094176
May 8, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On August 8, 2013, Administrative Law Judge Donna
N. Dawson issued the attached decision. The Respond-
ent filed exceptions, a supporting brief, and a reply brief.
The General Counsel filed an answering 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
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified2 and set
forth in full below.

1 We adopt the judge’s finding that the Respondent’s unilateral ces-
sation of longevity payments violated Sec. 8(a)(5) and (1) for the rea-
sons stated in her decision and in Finley Hospital, 359 NLRB 156, 157
(2012). The Respondent did not except to the judge’s finding that it
violated Sec. 8(a)(1) by informing the Union, after the fact, of its deci-
sion to cease issuing longevity payments. Accordingly, we adopt that
finding as well.
Member Miscimarra does not adopt the finding that the Respondent
violated Sec. 8(a)(1) by a statement it made to the Union. The com-
plaint did not allege an 8(a)(1) violation based on such a statement, the
complaint was not amended at the hearing to allege such a violation,
and the parties did not litigate this issue. To the contrary, the record
expressly negates such an allegation. Before the Respondent presented
its case in chief, it asked for a clarification of the issues in the case, and
counsel for the General Counsel stated: “The alleged unfair labor prac-
tices are set forth specifically in the complaint. . . . And those are the
only allegations being made at this time. Those are the only allegations
that this hearing is going to determining [sic]” (Tr. 118). Accordingly,
Member Miscimarra would reverse the judge’s 8(a)(1) finding. Mem-
ber Miscimarra also dissents from the majority’s finding that the judge
properly concluded the Respondent violated Sec. 8(a)(5) by discontinu-
ing longevity payments following expiration of the collective-
bargaining agreement. Because the contract language expressly limits
Respondent’s longevity pay obligation to specified dates during “each
year of this Agreement,” Member Miscimarra believes that the Board
cannot reasonably conclude the Respondent implemented a “change”
by giving effect to this language and limiting its longevity payments to
the agreement’s term. See Finley Hospital, supra, 359 NLRB 156,
165–167 (Member Hayes, dissenting).
The Respondent excepted to the judge’s ruling to exclude CFO Roy
Ryals’s testimony regarding his intent in drafting the original longevity
pay provision in the parties’ 2001 collective-bargaining agreement. We
find, for the reasons stated by the judge, that the exclusion of that tes-
timony was not an abuse of discretion.
2 We shall modify the judge’s Conclusions of Law and recommend-
ed Order to conform to her findings and to the Board’s standard reme-
dial language. We shall substitute a new notice in accordance with our
decision in Durham School Services, 360 NLRB 694 (2014).
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s Conclusion
of Law 2.
“2. The Charging Party, International Association of
Fire Fighters Local I-60, AFL–CIO (the Union), is a la-
bor organization within the meaning of Section 2(5) of
the Act and is the recognized collective-bargaining repre-
sentative of a bargaining unit composed of full-time and
regular part-time EMT, EMT-I, Paramedics, and Regis-
tered Nurses.”
2. Insert the following after the judge’s Conclusion of
Law 3 and renumber the subsequent paragraph.
“4. The Respondent violated Section 8(a)(1) of the
Act by notifying the Union, after the fact, of its decision
to discontinue longevity pay.”
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally discontinuing longevity
payments as described in article 44 of the July 1, 2009 to
July 1, 2012 collective-bargaining agreement, as extend-
ed to September 8, 2012, we shall order it to notify and,
on request, bargain collectively and in good faith with
the Union before implementing any changes in wages,
hours, or other terms and conditions of employment. In
addition, we shall order the Respondent to rescind the
unlawful change and resume issuing biannual longevity
payments to eligible employees until an agreement has
been reached with the Union or a lawful impasse in ne-
gotiations occurs. We shall further order the Respondent
to make employees whole for any losses sustained as a
result of the unlawful change, in the manner prescribed
in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), plus interest as set forth in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010). The Respondent shall file a report
with the Social Security Administration allocating back-
pay to the appropriate calendar quarters, and shall com-
pensate the affected employees for the adverse tax con-
sequences, if any, of receiving one or more lump-sum
backpay award(s) covering periods longer than 1 year.
ORDER
The National Labor Relations Board orders that the
Respondent, SW General, Inc. d/b/a Southwest Ambu-
lance, Mesa, Arizona, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD836
(a) Unilaterally discontinuing biannual longevity pay-
ments as described in article 44 of the July 1, 2009-July
1, 2012 collective-bargaining agreement, as extended to
September 8, 2012.
(b) Notifying the International Association of Fire
Fighters Local I-60, AFL–CIO (the Union), after the fact,
that Respondent had decided to cease issuing longevity
payments contained in the July 1, 2009-July 1, 2012 col-
lective-bargaining agreement, without giving the Union
notice or an opportunity to bargain.
(c) 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) Before implementing any changes in wages, hours,
or other terms and conditions of employment, notify and,
on request, bargain collectively and in good faith with
the Union as the exclusive representative of its employ-
ees in the following appropriate unit:
All full-time and regular part-time EMT, EMT-I, Par-
amedics and Registered nurses, but excluding any on-
call part-time employees, office clerical employees,
guards, watchmen and supervisors as defined in the
Act.
(b) Resume issuing biannual longevity payments to el-
igible employees as described in article 44 of the July 1,
2009-July 1, 2012 collective-bargaining agreement until
an agreement has been reached with the Union or a law-
ful impasse in negotiations occurs.
(c) Make employees whole for any losses sustained as
a result of the unlawful change made on December 3,
2012, with interest, in the manner set forth in the remedy
section of this decision.
(d) 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 money to be reim-
bursed under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in Mesa, Arizona, copies of the attached no-
tice marked “Appendix.”3 Copies of the notice, on forms

3 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.”
provided by the Regional Director for Region 28, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent 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,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate 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 December 3, 2012.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondent has taken to
comply.
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 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
activities.
WE WILL NOT unilaterally discontinue issuing biannual
longevity payments as described in article 44 of the July
1, 2009-July 1, 2012 collective-bargaining agreement, as
extended through September 8, 2012.
WE WILL NOT notify the International Association of
Fire Fighters Local I-60, AFL–CIO (the Union), after the
fact, of our decision to cease making longevity payments
contained in the July 1, 2009-July 1, 2012 collective-
bargaining agreement, when we have not given the Un-
ion notice and an opportunity to bargain.
SOUTHWEST AMBULANCE 837
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 your
wages, hours, or other terms and conditions of employ-
ment, notify and, on request, bargain collectively with
the Union as the exclusive bargaining representative of
employees in the following appropriate unit:
All full-time and regular part-time EMT, EMT-I, Par-
amedics and Registered Nurses, but excluding any on-
call part-time employees, office clerical employees,
guards, watchmen and supervisors as defined by the
Act.
WE WILL resume issuing biannual longevity payments
to eligible employees as described in article 44 of the
July 1, 2009-July 1, 2012 collective-bargaining agree-
ment until an agreement has been reached with the Union
or a lawful impasse in negotiations occurs.
WE WILL make you whole, with interest, for any losses
sustained as a result of the unlawful cessation of biannual
longevity payments on December 3, 2012.
SW GENERAL, INC. D/B/A SOUTHWEST
AMBULANCE
The Board’s decision can be found at
www.nlrb.gov/case/28–CA–094176 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.
Daniel B. Rojas, Esq., and Paul Irving, Esq., for the Acting
General Counsel.
Todd A. Dawson, Esq. (Baker & Hostetler, LLP), of Cleveland,
Ohio, for the Respondent.
Philip Elias, V.P. and Union Representative, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. This case
was tried in Phoenix, Arizona, on April 23, 2013. The
Charging Party Union, International Association of Fire
Fighters, Local Union I-60, AFL–CIO (the Union) filed the
charge in this case on December 3, 2012, and the Acting
General Counsel (AGC) issued the complaint on January 31,
2013. (GC Exhs. 1(a) and 1 (c)1 The complaint alleges that
Southwest General, Inc., d/b/a Southwest Ambulance
(Respondent) violated Section 8(a)(5) and (1) of the Act when
it made a unilateral change in working conditions without
having afforded the Union notice, and an opportunity to
bargain. More specifically, the complaint alleges that upon
expiration of the most recent collective-bargaining agreement,
from 2009–2012 (the 2009 Agreement) (Jt. Exh. 4), Respondent
unilaterally discontinued biannual longevity payments to unit
employees, pursuant to said agreement. Respondent denied, in
its answer2, that it had any obligation to continue longevity
payments once the 2009 Agreement expired, and denied any
other unlawful conduct alleged in the complaint. The
Respondent asserted several affirmative defenses, including
that any contractual dispute that exists should be deferred to an
arbitrator, and not interpreted by the Board. (GC Exh. 1(e); Tr.
222–223.)3
After the trial, the Acting General Counsel and the
Respondent filed briefs, which I have read and considered.
Based on the entire record in this case, including the testimony
of witnesses, and my observation of their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office and place of

1 Exhibits received into evidence are referred to here as “GC
Exh.”for General Counsel Exhibit; “R Exh.” for Respondent Exhibit;
and “Jt. Exh.” for Joint Exhibit. The parties’ briefs will be referred to
here as “GC Br.” for General Counsel’s brief, and “R Br.” for Re-
spondent’s brief.
2 During the trial, Respondent amended its answer to admit to pars.
5(a) and 5(b) of the complaint. (Tr. 89.)
3 Respondent also asserted, as an affirmative defense, that the com-
plaint must be dismissed because the President’s purported appoint-
ments of two new Board members were unconstitutional and invalid.
Respondent argued that the Board lacks a quorum since the expiration
of member Becker’s term on January 3, 2012 (citing New Process Steel
v. NLRB, 1380 S.Ct. 2635, 2640 (2010) (held “two [remaining Board]
members may [not] continue to exercise that delegated authority once
the group’s (and the Board’s) membership falls to two.” (GC Exh.
1(e).) This argument lacks merit here, however, as the Board rejects
any ruling that it does not have the requisite three-board member au-
thority. I am aware that the United States Court of Appeals, D.C. Cir-
cuit, in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), con-
cluded that the President’s recent recess appointments to the Board
were not valid. However, as noted by that Court, this conclusion is in
conflict with at least three other courts of appeals’ rulings. See Evans
v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert denied 544 U.S. 942
(2005); U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985); U.S. v. Al-
locco, 305 F.2d 704 (2d Cir. 1962). Thus, the Board has rejected this
argument, as the issue regarding the validity of recess appointments
“remains in litigation, and pending a definitive resolution, the Board is
charged to fulfill its responsibilities under the Act.” See G4S Regulated
Security Solutions, 359 NLRB 947, 947 fn. 1 (2013), citing Belgrove
Post Acute Care Center, 359 NLRB 633, 633 fn. 1 (2013).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD838
business in Mesa, Arizona (Respondent’s facility), provides
emergency and nonemergency ambulance services throughout
the State of Arizona by contracting with hospitals, nursing
homes, municipalities, counties and other local government
entities (Tr. 119, 120–121). During a representative 1-year
period, ending December 3, 2012, Respondent purchased and
received goods and materials valued in excess of $50,000
directly from suppliers located outside the State of Michigan.
During that same representative period, Respondent received
gross revenues in excess of $250,000. Respondent 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. The parties
admit, and I also find, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent Southwest Ambulance contracts with
municipalities and other government entities, including
unincorporated areas of counties within the State of Arizona to
provide emergency 911 ambulance services. It also provides
critical care and convalescent facility ambulance transportation
services between hospitals, and between hospitals and nursing
homes and vice versa. Id.
Respondent has admitted, and I find, that since 1992 (Jt.
Exhs. 1(e) and 1(c)), and at all relevant time periods here,
Respondent has recognized the Union as the exclusive
collective-bargaining representative of the unit. This
recognition has also been embodied in successive collective-
bargaining agreements, including the most recent 2009
Agreement. (GC Exhs. 1(e), p. 2 and 1(c), p. 2; Jt. Exhs. 1–4;
Tr. 121.) The employees of the respondent (the unit) constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act, and include:
All full-time and regular part-time EMT, EMT-I, Paramedics
and Registered Nurses, but excluding any on-call part-time
employees, office clerical employees, guards, watchmen and
supervisors as defined in the Act.
(Jt. Exhs. 4; GC Ex. 1(e).)4 The unit currently includes
approximately 800 employees (Tr. 88, 121), of Respondent’s
Southwest Emergency Medical Services Group’s Maricopa,
Pinal, Pima and Graham County nonfire integrated ambulance
operations. (GC Exh. 1(e); Jt. Exh. 4, p. 4.)
Respondent’s chief operating officer (COO), Roy Ryals, is
responsible for most of Southwest Ambulance’s operations,
including management-union negotiations and contract
administration and internal adjudication of grievances and labor
disputes. (Tr. 120.) He has participated in collective-
bargaining negotiations between Respondent and the Union, as
the lead negotiator or conegotiator, since at least the late 1990’s
or early 2000’s, as well as the drafter of 2009 Agreement at
issue here. (Tr. 121–124.) John Karolzak, employed by
Respondent’s parent company, Rural/Metro Corporation, is
Respondent’s Southwest Zone vice president. Tuesday Kramer
is the human resource manager and Cassandra Collins is the

4 EMT- Emergency Medical Technician.
payroll manager. Roy Ryals and Cassandra Collins testified
during the trial, but Karolzak and Kramer were not called as
witnesses.5
The current union president is Adam Lizardi,6 who has held
that position since January 2012. Prior to that, he was the
Union’s business manager for several years, serving on the
Union’s contract negotiations team since about 2006. Other
union officers with whom Lizardi works on his negotiations
team are Kevin Burkhart, treasurer; P J Elias, vice president;
Eddy Dobiecki and Michael Lovett, business managers (Tr. 91–
92, 101). Only Lizardi testified at the hearing.
Longevity Pay
1. History
Respondent and the Union first reached an agreement on
language concerning longevity pay during negotiations of their
2001 collective-bargaining agreement. This language was set
forth in article 45 of that agreement, entitled “Longevity Pay”;
and referred to biannual payments for long-term employees
after they reached a qualifying threshold of service with
Respondent. Respondent and the Union continued to include a
“Longevity Pay” article in successive collective-bargaining
agreements from June 2003 through September 20097 (Jt. Exhs.
1–4), without any lapses in agreements between May 2001
through September 2012. (Tr. 102.) In fact, the language
contained in the “Longevity Pay” articles remained virtually
unchanged in these agreements, except for the 2003 Agreement,
in which the parties agreed to add a separate tier of longevity
pay for employees with 15 years or more seniority. (Id.)
The parties stipulated that pursuant to these collective-
bargaining agreements, Respondent issued biannual longevity
payments (in June and December)8 to eligible unit employees
from 2001 through June 2012, the month during which the most
recent 2009 Agreement initially expired. (Jt. Exh. 8.)
According to current Union President Adam Lizardi, the
Union initially wanted the longevity pay provision to give
senior employees an opportunity to continue to receive a raise
during a time when Respondent had placed caps on annual
hourly wage increases at 10 years of service.9 (Tr. 109–111.)

5 Respondent initially denied in its answer that Ryals and Collins
were supervisors, but amended its answer during the trial to admit they
were supervisors and agents of Respondent. (GC Exh. 1(e); Jt. Exh. 8;
Tr. 32.)
6 Lizardi is also an Emergency Medical Technician, with just over
19 years of service with Southwest Ambulance/Respondent. (Tr. 90.)
7 The 2001 collective-bargaining agreement (2001 Agreement) was
to remain in effect until 2004, but the parties entered into negotiations
early and signed a new collective-bargaining agreement that became
effective in June 2003 (2003 Agreement) through June 2006, keeping
the “Longevity Pay” provision in art. 45. In the subsequent 2006 and
2009 Agreements, this provision was placed in art. 44. The 2006
Agreement was effective from August 2006 through July 1, 2009, and
the last and most recent agreement became effective on July 1, 2009
(2009 Agreement). (Jt. Exhs. 1–4.)
8 These payments were included in either the first or second pay
checks issued in June and December of each year from 2001 through
June 2012. (Tr. 96–97.)
9 While Lizardi recalled a pay scale in 2001, when the Longevity
Pay article was implemented, that “topped out” at 10 years, the collec-
SOUTHWEST AMBULANCE 839
Respondent asserted that this testimony be disregarded since
Lizardi was not present during the 2001 contract negotiation
meetings when the parties began to implement longevity pay
language. (R. Br.) However, Lizardi recalled that in 2001
union officials offered this explanation to union members when
the 2001 Agreement was brought to them for a vote. He also
remembered that this historical basis for longevity pay was
discussed during subsequent union board meetings, of which he
was a part. (Tr. 101–102, 109–111.) Lizardi was credible in his
presentation, and Respondent did not present any evidence to
dispute this explanation. However, I credit this testimony for
historic background only, as it is not material or critical in the
determination of liability in this case. Neither Lizardi nor
Ryals offered an explanation for maintaining this benefit, nor
do I find one is necessary. Lizardi acknowledged, and there is
no dispute, that after Respondent removed the caps on hourly
wage increases10 the parties agreed and continued to include
longevity pay articles in successor agreements. (Jt. Exhs. 3, pp.
31–32; 4, p. 53.) Thus, I find there is a long-standing history
and practice, no matter what the reason or origin, for
Respondent and the Union to agree to longevity pay provisions.
While the parties sharply disagree as to whether Respondent
had an on-going obligation to issue longevity pay after the
expiration of the 2009 Agreement, neither Lizardi nor Ryals
recalled any discussions among the Respondent-Union 2009
negotiations team members as to this obligation. (Tr. 109, 170.)
During the trial, the parities disagreed as to whether the
longevity pay was a “payment” or “bonus.” Respondent made
a point of referring to the payments at issue during the trial as
“longevity bonuses,” and in its answer as “longevity bonuses”
and “longevity bonus payments.” inferring a distinction
between “pay” and “bonus.” (GC Exhs. 1(e); Jt. Exhs. 1–4.)
However, Respondent did not proffer any arguments to support
such a distinction. Nor did it specifically argue that longevity
pay was not a mandatory subject of bargaining. Respondent
did assert that these payments were separate, stand-alone
events, and not an ongoing practice, and did not affect regular
wages or otherwise impact future terms and conditions. (R. Br.,
pp. 7–8.) Both parties repeatedly included articles entitled
“Longevity Pay” in their successive collective-bargaining
agreements implemented from 2001 through 2012. (Jt. Exhs.
1–4.) When asked to describe “longevity pay” or “longevity
bonus,” Ryals responded that “[i]t is a payment that’s made to
employees that have achieved ten-plus years of service.” (Tr.
121.) He also repeatedly identified the payment as “longevity
pay” during his testimony, even when questioned by
Respondent’s attorney. (Tr. 57, 150, 163, 166–167.) It matters
little to the ultimate question in this case what the parties chose
to call the longevity payments. While these payments may not
have been a part of regular wages or overtime pay, I find the

tive-bargaining agreements effective from 2001 to 2003 and 2003 to
2006 reveal that annual wage increases were actually capped at 11
years for all Emergency Medical Technicians and Registered nurses,
and at 13 years for Paramedics (i.e., caps were dependent upon em-
ployees’ job classifications). (Jt. Exh. 1 pp. 50–52; Jt. Exh. 2, p. 51 and
appendix A.)
10 See fn. 8, above.
parties agreed that they be paid to more senior employees as a
type of enhancement or addition to regular wages.
2. Article 44 of the 2009 Agreement
The most recent collective-bargaining agreement became
effective July 1, 2009, and remained in effect until July 1, 2012.
(Jt. Exh. 4.) The “Longevity Pay” provision of the 2009
Agreement in article 44, which is at issue in this case, provided
in relevant part:
44.1 Every December 1st and June 1st of each year of this
Agreement, employees who have completed at least ten years
of full-time service but less than 15 years of [full-time] service
shall qualify for $100.00 for each year of continuous full-time
service in excess of nine years.
44.2 Employees that have completed 15 or more years of
full-time service shall receive $150.00 for each year of
continuous [full-time] service in excess of nine years, up to a
semi-annual maximum of $3,000.00 and an annual maximum
of $6,000.00.
44.3 Employees on industrial leave shall qualify for this
payment for only the first six (6) months of industrial leave.
44.4 Payments will be made to employees who are active as
of the date payment is made. Payments will be paid no longer
than 30 days after the qualifying date.
44.5 An employee must be in good standing as of the
qualifying date to receive longevity pay. Good standing shall
be defined as not currently on probation for prior actions,
being in compliance with attendance and timeliness policies,
and maintaining acceptable documentation performance
during the prior six (6) month period.
(Jt. Exh. 4, p. 61 of 62.)
3. Other relevant provisions of the 2009 Agreement11
Article 3, entitled “Duration of Agreement,” Section 3.1
provided, in relevant part: “[t]his Agreement shall be
considered effective July 1st, 2009 and shall remain in effect
until July 1, 2012.” The cover page of the 2009 Agreement
contains the following: “Effective Dates: July 1st, 2009–July
1st, 2012.” (Jt. Exh. 4, p. 6 of 62; p. 1 of 62.)
Article 36-“Hourly Pay,” Section 3.1 of this Agreement
provided in relevant part:
36.1 Beginning with the first full pay period following the
signing of this labor agreement, each active/current employee
covered under this agreement will receive a 4% increase
including retroactive pay for hours worked since July 1, 2009.
This retro payment will be based on only hours worked in a
position covered in this labor agreement.

11 Respondent cited to or referenced these other provisions to sup-
port its theories that the Union either agreed to a set number (six) of
longevity payments during the specific term of the 2009–2012 Agree-
ment, waiving its right to bargain, or waived its right to bargain by
failing to file a grievance or unfair labor practices (ULP) charge when
Respondent discontinued pay increases under art. 36 of the 2009
Agreement. These theories will be discussed in the Discussion and
Analysis sections of this decision. (R. Br.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD840
36.2 Beginning with the first full pay period in July 2010,
each employee covered under this agreement will receive a
2.5% increase.
36.3 Beginning with the first full pay period in July 2011,
each employee covered under this agreement will receive a
3.5 % increase.
(Jt. Exh. 4, p. 53 of 62.)
4. Expiration of 2009 Agreement and discontinuance
of longevity pay
The 2009 Agreement expired on September 8, 2012. It
initially expired on July 1, 2012, pursuant to the effective dates
in the agreement, but the parties entered into three consecutive,
temporary agreements to extend the 2009 Agreement through
September 8, 2012. (Jt. Exh. 4, p. 6 and Jt. Exhs. 5–7.)
However, the parties began negotiations for a successor
agreement in about March 2012, and in fact, continue to meet
and negotiate for a new agreement. (Tr. 54–55, 92–93; GC
Exh. 2.) The parties agree to the most material facts following
the expiration of the 2009 Agreement. They agree that
Respondent made the last longevity payment to eligible unit
employees in June 2012, and refused to continue to make these
payments in December 2012 and thereafter. Respondent,
through COO Ryals’ testimony and stipulations, admits that it
did not provide the Union with notice or an opportunity to
bargain prior to the decision to discontinue longevity
payments.12 In fact, Ryals did not “believe there was any need
for [Respondent] to notify them.” He asserted that “[t]he plain
language of the CBA that was expired, there was no continuing
process that I would notify them about.” (Tr. 59–60; 166; Jt.
Exh. 8.)
Although questioned at length as to who made the decision
to discontinue longevity pay, and with whom he discussed the
decision, it is evident from Ryals’ undisputed, unwavering
testimony that he made the decision to terminate longevity pay
after the 2009 Agreement expired, and that Respondent
sanctioned this decision. (Tr. 56–60.) Ryals did not, however,
inform the Union of his decision until December 3, 2012, when
Lizardi contacted Respondent’s payroll manager, Cassandra
Collins,13 via email, to ask if the “longevity checks would be in
the next check or the one after[.]” Collins initially responded
“[t]he one after,” but 13 minutes later, emailed the following:
“Sorry, but from what I understand we won’t be paying any
longevity yet.” She then clarified that “the company is not
planning on paying longevity.” Lizardi forwarded these emails
to the Union Treasurer, Kevin Burkhart. (GC Exh. 4.) Kevin
Burkhart subsequently asked Ryals “to do the right thing,” 14

12 The parties also stipulated had Respondent issued longevity pay
pursuant to the formula set forth in the 2009 Agreement, payment
would have totaled $87,150 to 138 bargaining unit employees. (Jt.
Exh. 8.)
13 Collins normally administered the actual payments as directed by
Respondent. She did not make decisions as to whether or not payments
would be issued. (Tr. 73–77.)
14 Ryals did not specifically recall this conversation with Burkhart,
but admitted that “Kevin says things like that, it wouldn’t be out of
character for him.” (Tr. 60.)
and issue the longevity pay, but Ryals denied the request. (Tr.
57, 60; Jt. Exh. 8.)
I credit Lizardi’s undisputed testimony that he and one or
more of his other Union officials contacted Respondent
almost immediately after he received word from Collins that
the longevity benefit would not be paid. They inquired as to
the reason why it was not paid. As previously stated,
Respondent admits that it refused to honor this request or give
the Union an opportunity to bargain over its decision not to
make longevity payments.
Ryals recalled that he verbally communicated his decision to
stop longevity pay to his managers and other company
executives, and that no one disagreed. (Tr. 57, 139–140.) The
only email produced regarding written communication to other
managers/officials was dated September 11, 2012, and entitled
“Local I-60 Negotiations Update.” While it confirmed that the
parties were still working together to negotiate a new
agreement after the 2009 contract expired, it did not mention
longevity pay, or other specific provisions in the 2009
Agreement. It did state in pertinent part:
Managers:
By now you have all heard that the contract with Local
I-60 has expired and the company did not extend the con-
tract. This is true.
. . . .
[W]e agreed to begin negotiations in March, well before the
June expiration date of the existing contract.
. . . .
Much to the Company’s surprise, during our first ne-
gotiation session on March 27th, the Union announced that
they wanted to completely scrap all articles in the existing
contract, which took literally hundreds of hours to negoti-
ate over the years, and start over.
. . . .
The Company has negotiated in good faith and, as
such, extended the existing contract twice. The Company
did not feel that continued extension of the contract would
result in any improvements in the negotiations process.
Thus, the Company declined to take such action. Obvi-
ously the process is taking longer than anyone wants, but a
lot of progress has been made. We are optimistic that we
will be able to reach Agreement in a timely manner on the
remaining outstanding articles.
Now what does this all mean to you and how you
manage your direct reports? The answer is, pretty much
nothing.
Wages benefits and working conditions remain un-
changed. The disciplinary process remains unchanged.
The disciplinary process remains unchanged at your level.
All policies, procedures, and standard operating proce-
dures remain unchanged.
In other words, it is business as usual
. . . .
SOUTHWEST AMBULANCE 841
While there are a few changes that the Law allows,
like the ability of the Union to Strike and the ability of the
Company to Lock Out the workforce, no one is even con-
templating strikes or lockouts that I am aware of. Again,
your responsibility is to perform business as usual.15
(GC Exh. 2; Tr. 150–151.)
In August 2012, prior to the expiration of the 2009
Agreement, the parties reached a tentative agreement (TA)16 to
retain a longevity pay provision in the new or successor
agreement that would remain identical to the in article 44 of the
2009 Agreement. (Tr. 55–56; 95–97.)
Ryals testified that he drafted the longevity language in the
collective-bargaining agreements from 2001 through 2009. (Tr.
123, 124.) He explained that his understanding of what
Respondent committed to in art. 44 of the 2009 Agreement was
that “longevity pay would be paid out on the two dates
specified, which were . . . July and December of each year that
the agreement [went] into effect. When the agreement was no
longer in effect, the company had no obligation, and nor would
[he] believe the plain language indicates that payment [would
continue].” He asserted that the Company believed it was
agreeing to only “a total of six payouts for longevity,” and
those were the only payments made throughout the course of
the 2009–2012 Agreement. (Tr. 165–166.) Clearly, the Union
has a different understanding as to what would occur after the
expiration of the 2009 Agreement. I find that this is a legal
dispute rather than a factual one, and that the 2009 Agreement
was silent as to what would happen to the longevity provision
in the event it expired. Respondent refused to stipulate that the
parties had not discussed with each other their postexpiration
expectations for the 2009 Agreement, either during negotiating
sessions or otherwise, leading up to the 2009 contract.
However, it is uncontested that neither Lizardi nor Ryals could
recall any discussions among the parties’ negotiating team
members regarding what would happen to the biannual
longevity payments if the 2009 Agreement expired without a
successor agreement in place.17 (Tr. 109–110, 170.) Thus, I

15 It appears from this correspondence to managers, that Ryals may
not have made his decision to discontinue longevity payments as of
September 11, 2012 (3 days after the expiration of the Agreement). His
testimony indicates that he probably made his decision in November
2012 or before the time that longevity pay historically being paid out to
someone. (Tr. 57.)
16 Both Ryals and Lizardi explained that a TA occurs when both ne-
gotiating parties to a new or successor agreement agree to the language
of a particular provision, pending approval of a final collective-
bargaining agreement. (Tr. 55–56; 95–97.)
17 There was a lot of trial discussion as to whether or not Ryals or
Tuesday Kramer took and kept bargaining session notes regarding
longevity pay discussions. Ryals asserted that he nor Kramer had any
such notes. On the other hand, Lizardi observed that in most meetings,
Kramer appeared to be taking notes on her laptop, but he could not
recall if she took notes during longevity pay discussions. (Tr. 94–95.)
I tend to credit Lizardi’s observations over Ryals’ rather unequivocal,
vague testimony that “[s]he’s been there, she takes notes some of the
time . . . [s]ome of the time, she does not.” (Tr. 48.) Since Kramer was
not called by either party to settle this dispute, and neither Ryals nor
Lizardi could recall specific discussions about longevity pay, other than
find the parties did not discuss or come to an agreement, nor
include in any agreement, what would occur to longevity pay
once the 2009 Agreement expired.
III. DISCUSSION AND ANALYSIS
Legal Standards
1. Threshold issue is whether a determination of the
merits should be deferred to a Grievance
and Arbitration Process
I will first address Respondent’s assertion that it may be
appropriate to defer my decision in this case to an arbitrator
pursuant to the 2009 Agreement’s grievance and arbitration
procedures. Respondent relies on the holding in Nolde Bros.,
Inc. v. Bakery Workers Local 358, 430 U.S. 243 (1977). (Tr.
22; GC Exh. 1(e); Jt. Exh. 4, pp. 37–41.)18 Respondent
asserted, at the trial and in its answer, that if the Agency alleges
that it violated the collective-bargaining agreement, then any
right that arises under the contract is arbitral, regardless of
whether the contract has expired. (Tr. 22). As the Agency
pointed out in its brief,19 the Board has long recognized the
appropriateness of deferring certain unfair labor practice
charges in cases where a union and employer have active
grievance and arbitration procedures in place. See University
Moving & Storage Co., 350 NLRB 6, 20 (2007), citing Collyer
Insulated Wire, 192 NLRB 837 (1971); United Technologies
Corp., 268 NLRB 557 (1984) (the Board reaffirmed and
bolstered its doctrine in Collyer Insulated Wire, supra).
Under Collyer Insulated Wire, supra, and United
Technologies Corp., supra at 558, deferral is appropriate when:
[T]he dispute arose within the confines of a long and
productive collective-bargaining relationship; there is no
claim of employer animosity [or “enmity”] to the employees’
exercise of protected rights; the parties’ agreement provides
for arbitration of a very broad range of disputes; the
arbitration clause clearly encompasses the dispute at issue; the
employer has asserted its willingness to utilize arbitration to
resolve the dispute; and the dispute is eminently well suited to
such resolution [by arbitration].
University Moving & Storage Co., supra at 20. In the instant
case, the parties had a long and productive collective-
bargaining relationship, with no claim of employer animosity,
as evidenced by the successive agreements and on-going
negotiating towards a new agreement. However, this case does
not pass the Collyer Insulated Wire test, in that the 2009
Agreement does not encompass the dispute at issue. In fact, as
discussed further here, the 2009 Agreement specifically stated
that the arbitration clause would not survive the Agreement.
In Nolde Bros., Inc. v. Bakery Workers Local 358, 43, supra

in sessions for the new contract, this matter is not relevant or critical to
the decision in this case.
18 In its answer, and at trial, Respondent asserted this deferral argu-
ment as an affirmative defense, but did not address it in its brief. (R.
Br.) However, since Respondent has not officially abandoned this
affirmative defense, it is appropriate to address it as a threshold issue
before deciding the merits of the unfair labor practice issue.
19 R. Br. pp. 11–12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD842
at 243, the Supreme Court held that when the parties have
agreed to arbitrate grievances arising under a collective-
bargaining contract, that obligation is presumed to continue
once the contract has expired. In a subsequent case, the
Supreme Court clarified its holding in Nolde Bros., Inc., supra,
stating that “Nolde Bros., Inc., supra, 430 U.S. at 255 . . . found
a presumption in favor of postexpiration arbitration of disputes
unless negated expressly or by clear implication so long as such
disputes arose out of the relation governed by the contract.”
Litton Financial Printing Div. v. NLRB, 501 U.S. 190, 191–192
(1991).
The facts in Nolde Bros., Inc., are easily distinguished from
this case. First, the case involved a suit to compel arbitration
under the arbitration provisions of an expired collective-
bargaining agreement, which, unlike the arbitration in the
instant case, was silent regarding postexpiration grievances or
arbitration. The union alleged the employer was obligated to
arbitrate its refusal to provide severance pay, under the expired
agreement, to displaced employees who had worked for the
company for at least 3 years. The employer argued that its
obligation to arbitrate (and pay the displaced employees) died
with the contract because the event leading to displacement and
giving rise to the dispute—the closing of the plant—occurred
after the expiration of the contract. The Court held that “[t]he
dispute . . . although arising after the expiration of the
collective-bargaining contract, clearly arises under that
contract.” Nolde Bros., supra at 249. The Court observed that
parties had agreed in the expired contract’s arbitration clause to
attempt to resolve “all grievances,” but that the contract was
silent as to postexpiration grievances. It held that “in the
absence of some contrary indication, there are strong reasons to
conclude the parties did not intend their arbitration duties to
terminate automatically with the contract.” Nolde Bros., at 253.
The Court concluded “[i]n short, where the dispute is over a
provision of the expired agreement, the presumptions favoring
arbitrability must be negated expressly or by clear implication.”
Nolde Bros., supra at 255.
In S & W Motor Lines, 236 NLRB 938 (1978), the Board
adopted the position that the arbitration provision did not
survive contract expiration because the Nolde presumption
favoring arbitrability of postexpiration disputes had been
negated by express language in the contract. Unlike the
contract in Nolde, but like the contract in S & W Motor Lines,
supra, the expired 2009 Agreement in this case explicitly states
that the parties’ grievance and arbitration procedure “does not
survive the term of this Agreement.” (Jt. Exh. 4, p. 37.)20
Therefore, I find no basis upon which to defer the merits of this
case to arbitration where the parties clearly decided that
arbitration would not survive the contract. Furthermore, the

20 The Board has consistently recognized that the parties generally
do not have an obligation to adhere to the terms of an expired arbitra-
tion agreement. See Indiana & Michigan Electric Co., 284 NLRB 53,
57 (1987) (the Board reaffirmed its view that “the arbitration commit-
ment arises solely from mutual consent. . . . Congress did not intend the
[NLRA] to . . . create a statutory duty to arbitrate,” and recognized
deferral of charge to be inappropriate where grievances were triggered
by events occurring after the expiration of contacts”).
parties to this expired 2009 Agreement “have no contractual
obligation to adhere to the agreement’s arbitration procedure in
processing grievances arising after the agreement’s arbitration
date.” See W. H. Froh, Inc., 310 NLRB 384, 386 (1993), citing
Indiana & Michigan Electric Co., 284 NLRB 53, 57 (1987),
and Hilton-Davis Chemical Co., 185 NLRB 241, 242 (1970).21
2. Discontinuance of longevity pay after expiration
of the 2009 Agreement
Mandatory Subject of Bargaining
First, I find that longevity pay, as described in article 44 of
the 2009 Agreement, as well as the three predecessor
agreements, is clearly a mandatory subject of bargaining.22 The
Board has recognized longevity pay as a mandatory subject of
bargaining. In Pine Brook Care Center, 322 NLRB 740, 748
(1996), the Board adopted the Administrative Law Judge’s
findings which including a finding that certain benefits,
including “longevity pay,” constituted terms and conditions of
employment which were “clearly” mandatory subjects of
bargaining. Additionally, whether described as a “longevity
bonus” of “longevity pay,” I find article 44 describes a payment
to eligible senior employees which constitutes a mandatory
subject of bargaining.
Unilateral Change Violation
Section 8(a)(5) of the Act provides that it is an unfair labor
practice for an employer to “refuse to bargain collectively with
the representatives of his employees;” and has culminated into
a longstanding rule that an employer violates Section 8(a)(5) if
it “unilateral[ly] change[s] conditions of employment under
negotiation, for it is a circumvention of the duty to negotiate
which frustrates the objectives of § 8(a)(5) much as does a flat
refusal.” NLRB v. Katz, 369 U.S. 736, 743 (1962).
Furthermore, it is well settled that the unilateral change
doctrine set forth in NLRB v. Katz, supra, whereby an employer
violates the NLRA if it effects a unilateral change of an existing
term or condition of employment, without bargaining to
impasse, extends to cases in which an existing agreement has
expired and negotiations on a new one are pending. See, e.g.,
Laborers Health & Welfare Trust Fund v. Advanced
Lightweight Concrete Co., 484 U.S. 539, 544 fn. 6 (1988),
Litton Financial Printing Div. v. NLRB., supra, 191–192.
Therefore, an employer’s duty to maintain the status quo
remains the same, during negotiations, when both the Union
and employer have agreed to a particular term or condition of

21 The Board in W. H. Froh, Inc., supra at 386 fn. 5, noted that Hil-
ton-Davis has been cited with approval by the Supreme Court in Litton
Financial Printing Div. v. NLRB., 501 U.S. 190 (1991).
22 While Respondent does not assert that longevity pay is not a
mandatory subject of bargaining, at trial, it insisted on characterizing
longevity pay as a “longevity bonus” or “bonus,” rather than agreeing
that it is the same as “longevity pay.” However, as I found earlier in
this decision, art. 44, drafted by Ryals, and approved by the Union, is
entitled “Longevity Pay,” and both parties have certainly referred to
benefit as a “bonus” or “pay” interchangeably throughout these pro-
ceedings. Nevertheless, no matter what they call it, it is clearly an
economic benefit flowing from the relationship between the employer
and unit employees, and a mandatory subject of bargaining as discussed
here.
SOUTHWEST AMBULANCE 843
employment in a collective-bargaining agreement which has
expired. Finley Hospital, 359 NLRB 156, 157 (2012), citing
Litton, supra at 198; Laborers Health & Welfare Trust Fund v.
Advanced Lightweight Concrete Co., supra.
An employer may escape liability for a unilateral change
violation if it proves that a union has expressed or implied a
“clear and unmistakable waiver” of its right to bargain.
American Broadcasting Co., 290 NLRB 86, 88 (1988);
California Pacific Medical Center, 337 NLRB 910 (2002).
The Board has relied on several factors in assessing whether
a clear and unmistakable waiver exists: (1) language in the
collective-bargaining agreement, (2) the parties’ past dealings,
(3) relevant bargaining history, and (4) other bilateral changes
that may shed light on the parties’ intent. See Johnson-
Bateman, 295 NLRB 180, 184–187 (1989); American Diamond
Tool, 306 NLRB 570 (1992). The party asserting the waiver,
however, bears the burden of establishing the existence of the
waiver. Pertec Computer, 284 NLRB 810 fn. 2 (1987).
Respondent, from the offset, does not raise the customary
defense that the Union waived its right to bargain. Rather,
Respondent asserts that the waiver doctrine is irrelevant in this
case because it never changed existing terms and conditions of
employment. In fact, Respondent even argues that “longevity
bonuses” were not an ongoing practice, “but were limited by
both parties in the 2009 Agreement to a fixed number of
payments (six) on specified dates which “expired of [their] own
accord” once they were made.23 Respondent contends that this
calculated expiration did not constitute a “change,” nor create
an obligation to bargain, because Respondent made all
longevity payments required by the expired 2009 Agreement.
Respondent does argue, alternatively, that if I apply the “clear
and unmistakable waiver” doctrine, Respondent’s obligation
would be satisfied much for the same reasons, i.e., that it met
its obligation once the sixth payment was made. Respondent
also avers, alternatively, that the Union implicitly waived its
right to bargain when it failed to grieve or file a charge in
connection to Respondent’s termination of wage increases
under article 36 of the 2009 Agreement. It relies heavily on its
interpretation of Union President Adam Lizardi’s testimony.
(R. Br.)
First, I have considered all of Respondent’s arguments as to
why its actions did not constitute a “change” or “unilateral
change,” and find they are unsupported by the case law and
merits. Pursuant to Katz, supra, and its progeny cited here,
Respondent effected a unilateral change of an existing term or
condition of employment, without bargaining to impasse. This
rule, as set forth above, has been extended to cases such as the
instant case, in which an existing agreement has expired and
negotiations on a new one are pending. See, e.g., Laborers

23 Respondent made the last longevity payment in June 2009, prior
to the expiration date of the longevity agreement. I must reject, howev-
er, this questionable assertion that longevity payments were not an
ongoing practice. This belies the undisputed evidence that Respondent
and the Union have in fact continued the practice of including longevity
pay provisions in its collective-bargaining agreements since 2001.
Furthermore, there is no language in the 2009 Agreement to even infer
that issuance of biannual longevity payments was a one-time or occa-
sional practice.
Health & Welfare Trust Fund v. Advanced Lightweight
Concrete Co., supra at 544, fn. 6 (1988); Litton Financial
Printing Div. v. NLRB, supra at 191–192. There is simply no
dispute in this case that Respondent changed a term and
condition of employment pending negotiations for a new
contract.
Next, I find there is clearly no express waiver encompassed
in the 2009 Agreement, and reject Respondent’s assertion that
the language in the Longevity Pay article 44, i.e., “Every
December 1st and June 1st of each year of this Agreement,”
coupled with effective dates of the contract, represents the
Union’s express or implied waiver, much less a “clear and
unmistakable” waiver of its bargaining rights. The Board
rejected similar language in Finley Hospital, supra at 1, in
which it found the respondent violated Section 8(a)(5) of the
Act by unilaterally discontinuing the annual 3-percent pay
raises provided in the parties collective-bargaining agreement
upon expiration of the agreement. The Board applied the “clear
and unmistakable waiver” standard in that case, requiring
parties to “unequivocally and specifically express their mutual
intention to permit unilateral employer action with respect to a
particular employment term, notwithstanding the statutory duty
to bargain that would otherwise apply.” Finley Hospital, supra
at 2, citing Provena St. Joseph Medical Center, 350 NLRB 808,
810–812 (2007).
The respondent in Finley Hospital, as in this case, relied on
the multiple references, in the collective-bargaining agreement
provision at issue, to the term of the agreement, i.e., “During
Term of the Agreement,” “For the duration of this Agreement,”
and “during the term of this Agreement.” The Board found that
while such references might limit the contractual obligation and
right for any period after the contract expiration, “these
references fail to ‘unequivocally and specifically express [the
parties’] mutual intention to permit unilateral employer action
with respect to the [annual wage increases].” The Board
recognized that neither the wage increase provision, nor the
agreement as a whole, provided for any postexpiration action or
conduct, much less expressly permit[ted] unilateral employer
action” upon the expiration of the agreement. Finley Hospital,
supra at 3, citing Provena, supra at 811.
Prior to Finley Hospital, the Board consistently reached this
same result its cases involving postexpiration changes in terms
and conditions established by an expired agreement. See
AlliedSignal Aerospace, 330 NLRB 1216, 1216–1222 (2000),
review denied sub nom. Honeywell International v. NLRB, 253
F.3d 125 (D.C. Cir. 2001) (“[w]hatever the scope of the
[r]espondent’s obligation as a matter of contract, there is no
basis for finding the [u]nion waived its [statutory] right to
continuance of the status quo as to terms and conditions . . .
after contract expiration); General Tire & Rubber Co., 274
NLRB 591, 592–593 (1985), enfd. 795 F.2d 585 (6th Cir. 1986)
(Board found the contract did not address employer’s statutory
obligation to pay benefits postexpiration of a contractual
benefit continuation period, and therefore did not constitute a
waiver of the union’s rights). The Board in this case
distinguished Finley Hospital from Board decisions which
found a “clear and unmistakable,” because the contracts in
those cases included postexpiration language. See Cauthorne
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD844
Trucking, 256 NLRB 721 (1981), granted in part, denied in part
691 F.2d 1023 (D.C. Cir. 1982); Oak Harbor Freight Lines, 358
NLRB 328 (2012).
The contract language in the instant case, like that in Finley
Hospital,24 and the other Board cases cited there, AlliedSignal
and General Tire, sets limits on the effective periods of the
contractual obligation, but fails to provide for the employer’s
postexpiration conduct or obligation or authorize unilateral
changes by the employer. Respondent contends Finley
Hospital is factually apposite from this case because the
longevity payments provided in this case’s 2009 Agreement
were “separate, stand-alone [events] timed to occur on specific
dates, and were not ongoing [practice] like the wage increases
in Finley Hospital.” This argument is completely unsupported
by the evidence, as discussed earlier. The longevity payments
in the instant case were not “stand-alone” or “separate” events.
Rather, they were consistent payments issued biannually in
several successive agreements between Respondent and the
Union from 2001 through 2012. In fact, while not at issue here,
the parties admitted they agreed to a tentative agreement (TA)
to continue to maintain the longevity payments in a successor
agreement. Therefore, I find the employer in this case has not
shown a clear and unmistakable waiver, of any kind, of its
obligation to maintain the status quo created in the expired
2009 Agreement, and has therefore violated Section 8(a)(5) and
(1) of the Act.
Respondent also argues that Finley Hospital is based on
reasoning that has been rejected by the D.C. Circuit, and
therefore should not be treated as binding or persuasive “in any
sense.” See NLRB v. USPS, 8 F.3d 832, 838 (D.C. Cir. 1993);
Enloe Medical Ctr. v. NLRB, 433 F.3d 834, 837 (D. C. Cir.
2005). (R. Br., p. 7, fn. 2.) The D.C. Circuit Court of Appeals
rejected the Board’s “clear and unmistakable” waiver doctrine
in those cases, implementing instead, its own “waiver” vs.
“covered by” doctrine.25 While the Board is not bound by the
findings in these cases, as evidenced in its findings in Finley
Hospital, I find that even applying the D.C. Court of Appeals
doctrine here, Respondent’s argument is without merit, and my
decision remains the same. The Court of Appeals found in both
cases that the companies’ actions, including implementation of

24 I have considered, and dismiss, Respondent’s argument that Fin-
ley Hospital should not be considered by me because it was decided by
an improperly constituted Board, citing Noel Canning v. NLRB, supra,
and New Vista Nursing & Rehab., 2013 U.S. App. LEXIS 9860 (3d Cir.
2013). As decided earlier on in this decision, I find this argument is
without merit, as the Board is not bound by these decisions. It has
rejected this argument, as the issue regarding the validity of recess
appointments is pending litigation and “definitive resolution.” I note,
as well, that the Board in Finley did not make decisions of first impres-
sion, but relied on well-settled Board and Court decisions.
25 Held that “questions of ‘waiver’ normally do not come into play
with respect to subjects already covered by a collective bargaining
agreement,” citing NLRB v. USPS, supra at 836–837. Instead, the
proper inquiry is “simply whether the subject that is the focus of the
dispute is ‘covered by’ the agreement.” Id at 836. Also see Dept. of
Navy v. FLRA, 962 F.2d 48, 57 (D.C. Cir. 1992). Unlike the subject
matter in dispute in the D.C. Circuit Court of Appeals cases cited here,
I find termination of longevity pay and the refusal to bargain over the
same was not “covered by” the 2009 Agreement.
changes and refusal to bargain over the effects of those
changes, were sanctioned by agreed-upon, existing collective-
bargaining agreements. See NLRB v. USPS, supra at 834, 837;
Enloe Medical Ctr., supra at 837. The instant case is
distinguishable in that the 2009 Agreement was not an existing
agreement, and the 2009 Agreement’s Management Rights
clause or other provisions did not so authorize or “sanction”
Respondent to discontinue longevity pay, and refuse to bargain.
(Jt. Exh. 4, pp. 8–9 of 62.) Thus, the D.C. Circuit Court’s
waiver approach is not inapposite to this case, and I still find
the Union in the instant case did not waive its bargaining rights.
Likewise, I reject the notion that the Union implicitly waived
its right to bargain over the termination of longevity pay
because it did not challenge, but rather, accepted limitations on
hourly wage increases in article 36 of the agreement. Article 36
of the 2009 Agreement provides for annual percentage
increases in hourly pay beginning with the first full pay period
following the signing of the agreement, and thereafter,
beginning with the first full pay period in July 2010 and July
2011, for each “active/current employee covered under this
agreement.” Lizardi acknowledged that the Union did not take
issue with this provision since it set forth specific dates and
years for the increases and termination thereof. I agree, and so
find, that the language in this provision is distinguishable from
article 44, in that it specifically terminated hourly wage
increases 1 year before the contract ended. Notwithstanding
my finding, the Board has rejected “waiver-by-inaction
defense, finding the Union must have clear notice of the
employer’s intent to institute a change. Rappazzo Elec. Co.,
281 NLRB 471, 482 (1986).
I therefore conclude that Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally discontinuing longevity pay
without first having afforded the Union notice and an
opportunity to bargain. I further conclude that Respondent
violated Section 8(a)(1) of the Act by notifying the Union, after
the fact, of its decision that it would not be issuing longevity
pay.
CONCLUSIONS OF LAW
1. SW General, Inc. d/b/a Southwest Ambulance (the
Company) is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party (the Union) is a labor organization
within the meaning of Section 2(5) of the Act and is the
recognized collective-bargaining representative of a bargaining
unit composed of the production, maintenance, clerical,
technical, and office employees employed by the Company at
its facility in Mesa, Arizona.
3. On or about December 1, 2012, and thereafter, the
Company violated Section 8(a)(5) of the Act by failing to give
notice and an opportunity to bargain with the Union prior to
unilaterally terminating longevity payments for all eligible unit
employees after the most recent expiration of the 2009
collective-bargaining agreement on September 8, 2012.
4. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
SOUTHWEST AMBULANCE 845
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall order it to cease and desist from such
conduct and take certain affirmative action designed to
effectuate the policies of the Act. Having found that
Respondent unlawfully and unilaterally terminated longevity
payments, and failed to distribute them to eligible unit
employees as required by the parties’ July 1, 2009, through July
1, 2012 contract, as extended to September 8, 2012, I shall
order it to make whole for any loss of earnings or benefits
suffered as a result of said unilateral change. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons, 283
NLRB 1173 (1987), compounded daily under Kentucky River
Medical Center, 356 NLRB 6 (2010). Respondent shall file a
report with the Social Security Administration allocating
backpay to the appropriate calendar quarters, and shall
compensate the affected employees for the adverse tax
consequences, if any, of receiving one or more lump-sum
backpay award award(s) covering periods longer than 1 year.
Latino Express, Inc., 359 NLRB 518 (2012).
[Recommended Order omitted from publication.]