ARC Bridges

National Labor Relations Board - Administrative Judge Opinions

Dec 31, 2008

13-CA-044627 (N.L.R.B. Dec. 31, 2008)

JD(SF)-53-08
Gary, Indiana
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
ARC BRIDGES
and Case No. 13-CA-44627

AMERICAN FEDERATION OF
PROFESSIONALS
Jeanette Schrand, Esq., Chicago, IL,
for the General Counsel
Raymond C. Haley, III, Esq., Woodward.
Hobson & Fulton, LLP, Louisville, KY,
for the Respondent
Eugene Elk, International Representative,
Pittsburgh, PA, for the Union
DECISION
Statement of the Case
Gerald A. Wacknov, Administrative Law Judge: Pursuant to notice a hearing
in this matter was held before me in Chicago, Illinois on July 28 and 29, 2008. The
charge was filed by American Association of Professionals (Union) on March 31, 2008.
Thereafter, on May 28, 2008, the Regional Director for Region 13 of the National Labor
Relations Board (Board) issued a complaint and notice of hearing alleging a violation by
Arc Bridges (Respondent) of Section 8(a)(1) and (3) National Labor Relations Act, as
amended (Act). The Respondent, in its answer to the complaint, duly filed, denies that it
has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to call, examine, and
cross-examine witnesses, and to introduce relevant evidence. Since the close of the
hearing, briefs have been received from Counsel for the General Counsel (General
Counsel), counsel for the Respondent, and counsel for the Union. Upon the entire
record, and based upon my observation of the witnesses and consideration of the briefs
submitted, I make the following:
JD(SF)-53-08
2
Findings of Fact
I. Jurisdiction
The Respondent, an Indiana corporation with an office and place of business in
Gary, Indiana and additional facilities in Lake County, Indiana, is engaged in providing
social services, including residential services, transitional services, supported
employment, and sheltered workshops for individuals with developmental disabilities.
The Respondent annually derives gross revenues in excess of $250,000, and annually
purchases and receives at its Indiana facilities goods, products and materials valued in
excess of $50,000 directly from points outside the State of Indiana. It is admitted and I
find that the Respondent is, and at all material times has been, an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.1
II. The Labor Organization Involved
It is admitted, and I find, that The Union is and at all times material herein has
been, a labor organization within the meaning of Section 2(5) of the Act,
III Alleged Unfair Labor Practices
A. Issues
The principal issue in this proceeding is whether the Respondent has violated
and is violating Section 8(a)(1), (3) of the Act by withholding a wage increase from its
unionized employees during the course of bargaining negotiations.
B. Facts
The Respondent provides a variety of services for developmentally disabled
individuals (clients) in northwest Indiana, including the operation of residential group
homes, transitional services, employment counseling and assistance, and sheltered
workshops. Such services are largely funded by Medicaid and state appropriations.
On November 15, 2006 and February 22, 2007, the Union was certified as the
exclusive collective bargaining representative of two distinct units of employees,
known as the Day Services Unit and the Residential Supportive Living Unit,
respectively. Both units, collectively, total approximately 260 employees, who
provide the aforementioned services to the Respondent’s clients. Approximately 121
individuals, consisting of managers, supervisors, truck drivers and clerical support
staff, are not represented by the Union; of this number approximately 70 to 80
individuals are not managers or supervisors.
The Respondent actively campaigned against the Union during the two pre-
election campaigns. Following the first election, Dorothy Shawver, Respondent’s
Director of Community Services, sent a memo to the employees, inter alia, as
follows:

1 The record also shows the Respondent is a health care institution within the meaning
of Section 2(14) of the Act.
JD(SF)-53-08
3
As you know the Day Services Staff voted for union representation.
Now, as you might expect the union is pushing others to join what
they call their “winning team.”
* * *
In the weeks and months to come you will begin to see how things
turn out and whether the 57 folks who voted for the AFP are able to
get what they thought they would obtain. As of this date the union has
yet to begin negotiations with Arc BRIDGES and is now attempting to
expand their membership by seeking support from you asking that
you sign a membership card. (Original emphasis)

And on January 24, 2007, prior to the election in the Residential Supportive
Living Unit, Shawver, sent the following note to the employees:
During the union campaign, many people have said to me “don’t take
it personally”. I do take this personally. If you were in my position I
think you’d take it personally too. I have worked at Arc Bridges for 22
years. I have built wonderful working relationships with many of you.
It saddens me to think that all of that could change in the coming
weeks. The Area Managers, Directors and I have spent the last few
months making sure you have the facts in order to make an informed
choice. I hope these facts have assisted you in your choice. It is
important that you vote. This is your chance to let your voice be
heard. I ask that you vote “NO”, put this experience behind us and
refocus our efforts on those people that are most important to us—our
clients. (Original emphasis)
Collective bargaining for the Day Services Unit began in December, 2006, and
collective bargaining for the Residential Supportive Living Unit began in March, 2007.
Thereafter, separate bargaining sessions continued to be held for each unit, one
session in the morning and the other in the afternoon. However, the issues
discussed during the course of bargaining, particularly the economic issues, were
identical for both units.
On July 10, 2007, the Union presented its initial economic demands as part of a
multi-page proposed collective bargaining agreement. Up to this point in
negotiations the parties had apparently not discussed monetary issues. Included in
the demands were a health insurance proposal requiring the Respondent to pay a
significant increase per month per employee for health insurance; a wage increase
proposal calling for a 20 percent increase in wages for the first year of the contract, a
20 percent increase for the second year, and a 10 percent increase for the third year;
and a proposal that the Respondent’s then current profit sharing plan be frozen and
that it be replaced by a 401k plan administered by the Union.
At the following session, on July 12, 2007, the Respondent presented the Union
with several documents: A document headed “Key Financial Data,” showing that its
2007 net income (deducting revenues from expenses) was projected to amount to
$53, 497; and another document headed “Projected Contract Costs, Union First
Demand,” showing that the first year of the contract proposed by the Union would
require additional outlays by the Respondent of $4, 311,905.
JD(SF)-53-08
4
At this bargaining session the Respondent’s chief negotiator told the Union’s
bargaining committee that it was “time to bring a healthy dose of reality to these
negotiations.” The Union was requested to “narrow its focus,” and to determine which
issues were most important to it so that bargaining could proceed on those issues.
Further, the Respondent took the position that wages, and apparently current health
care and pension benefits, be frozen, and declined to provide a counter proposal on
wages, or apparently other economic issues.
The parties were not scheduled to meet again until August 8, 2007. However that
negotiating session was cancelled due to the illness of the Union’s chief negotiator.
Before another negotiating session was held the Union sent out an announcement to
the bargaining unit employees entitled “Strike Vote.” The announcement states, in
part, as follows:
Remember—the Company REJECTED your entire economic proposal
and DID NOT offer one of their own. They told the Union negotiators that
they simply wanted to know one or two economic areas that were “the
most important” to you and they would “look at what they could do in
those areas.”
The propaganda that they are feeding you about a strike vote is just
that—propaganda. How can they expect you to take care of the Arc
Bridges Client Family if you can’t take care of your own family? As of
June 30, 2006, Bridges, Inc. had $7,699,465.00 in NET ASSETS!
(Original emphasis)
It appears that negotiations thereafter were infrequent. There were no further
economic proposals from either party until after the Respondent granted a wage
increase to its supervisors, managers and non-unit employees, infra.
The Respondent’s fiscal year extends from July 1 to June 30. For many years it
has been the practice of the Respondent to review wages in June of each year as a
component of the budget process, and to budget for wage increases, if financially
feasible. Customarily, such wage increases are granted in July of each year.
Following this pattern, in July of each of the prior two years, 2005 and 2006, before
the Union became the employees’ bargaining representative, the Respondent
granted across the board wage increases of 3 percent to all staff, including
managers and supervisors.
Executive Director Kris Prohl is responsible for all the operations of the
Respondent. Prohl testified that at the June 2007 budget meeting she was given
authority by the board of directors to grant a 3 percent across the board wage
increase in July to all staff, including managers and supervisors. However, she did
not do so “because the situation was not clear to us to be able to expect what was
going to happen.” Prohl was not questioned further about the import of her testimony
in this regard, but its meaning seems clear: that the Respondent did not grant the
wage increase because of union-related considerations.
JD(SF)-53-08
5
Since the aforementioned July, 2007 negotiating sessions there have been no
change in either the Union’s or the Respondent’s bargaining position, and the only
significant event thereafter took place in late August, 2007, when the unit employees
voted to authorize the Union to call a strike. However, no strike was announced or
instituted.2 On about October 12, 2007, there being no foreseeable prospects of a
successful resolution of the matter, Prohl decided to grant the aforementioned wage
increase, retroactive to July, 2007, to all non-bargaining unit personnel, including
supervisors and managers.
Asked why she did not also grant the wage increase to the unit employees, Prohl
testified that she was attempting to avoid a charge for “not good faith bargaining.”
Questioned about this, Prohl explained, in effect, that if the Respondent unilaterally
granted the wage increase the Union would have likely filed a refusal to bargain
charge. Further, if the Respondent would have proposed, and the Union would have
accepted the increase as a down payment on the 20 percent increase it was
requesting, the Respondent would have had no further bargaining leverage, as any
amount of wage increase was simply one component of the entire contract. Also
entering into Prohl’s assessment of the situation were the matters of “grant money”
and the fact that the Union had taken a strike vote.
Regarding the matter of grant money, Prohl testified that in mid-September,
2007, the Respondent proposed to the Union that certain grant money, which came
from an outside source on a “pass through” basis,3 be distributed to the unit
employees as a bonus and not a wage increase; further, as time was running out
under the terms of the grant, the Respondent was looking for a quick response from
the Union regarding this proposal. However the Union according to Prohl, was
apparently not sufficiently interested in this proposal, and because of the Union’s
procrastination the grant expired and the funds were no longer available.4 This
conduct of the Union, according to Prohl, convinced her that the Union would
similarly disregard and deem inadequate the offer of a 3 percent wage increase.
And, Prohl reasoned further that because the employees had voted to authorize
a strike, she believed such a relatively “little three percent “ wage offer, compared
with the Union’s 50 percent three-year wage proposal, would make the employees
“very unhappy” and a strike more likely, and would have served no useful purpose.
In this regard, Prohl emphasized that the Union, in advocating for strike
authorization, apparently did convince the employees that the Respondent should
sell its assets, largely consisting of physical facilities needed to house and support its
programs, to finance the Union’s substantial wage increase proposal and other
economic proposals. Thus, according to Prohl, the employees had been led to
believe there was much more money potentially available to finance a wage increase
than the mere $53,497 that the Respondent maintained it had available.

2 Because the Respondent is a health care institution, the Union was required to give the
Respondent the appropriate ten-day advance written notification of a strike under
Section 8(g) of the Act.
3 That is, the money was not attributable to the Respondent but rather to the grantor.
4 The Union maintains that it did have some concerns over the distribution of the grant
money, but the fact that the grant expired without the money being distributed to the
employees was not due to the Union’s inattention or disinterest.
JD(SF)-53-08
6
On the other hand, if the Union agreed to the three- percent wage increase
there would have been nothing left to bargain with. Prohl testified:
My concern was that we were looking at 50 percent increases [over three
years] in wages at a bare minimum is what was on the table. There were
significant [proposed] changes across the board in terms of employee
benefits and work rules, all kinds of things, which had not had an
opportunity to be negotiated. I felt that if we just parceled out the three
percent of the 50 percent that was asked for, that, in the first place, that
would not do us any good…once we said this is all the money we have
and we agreed to use it for this purpose, there’s nothing left.
On October 12, 2007, Prohl issued the following memorandum to all
supervisors and managers, entitled “Non-Union Staff Annual Raises”:
This week we informed all non-represented staff of their annual increase
retroactive to July 1, 2007. No adjustment has been made for
represented workers because there has been no agreement reached with
the union.
We waited on giving pay raises to our non-union staff as we hoped that
the union would be reasonable in negotiations and we would be able to
reach an agreement in a reasonable amount of time.
Unfortunately, the union has maintained its outrageous demands in
negotiations. Unless there is a dramatic change in the union’s position,
which we don’t expect, an agreement in the near future is unlikely. It is
not fair to the rest of our employees to make them wait for their salary
adjustment because the union has more than $4 million in first year
demands on the table.
Unit employees will have to wait to see what increases, if any, will be
negotiated by the AFP.
The memorandum was not to be shared with bargaining unit employees because,
according to Prohl, the Respondent didn’t want to “shout [the wage increase] from the
roof,” but wanted the managers and supervisors to be able to answer questions about it
if asked by bargaining unit employees.
Prohl testified that the Respondent granted the October, 2007 wage increase to
the other staff, particularly the supervisory and managerial staff, “so we can retain them,
so that we can keep people here.”5 However, the amount of turnover of the unit
employees, which was somewhat lower but nevertheless significant,6 did not outweigh
her aforementioned concerns regarding the bargaining process and other matters
mentioned above.

5 The turnover for the managerial and supervisory staff was projected to be about 40
percent for 2008.
6 The turnover for the unit employees and apparently the non-unit employees, was about
34 percent.
JD(SF)-53-08
7

Thereafter, during the course of bargaining, the Respondent offered the Union a
one-and-a-half percent retroactive wage increase, and later offered a 2 percent
retroactive wage increase. The Respondent did not offer the full 3 percent increase
because, according to Prohl, “subsequently there have been significantly more costs that
the Agency has encountered and less income.”
Prohl testified that in the mid 1990’s there was a prior union certification of the
Auto Workers Union as the collective bargaining representative of certain of the
Respondent’s employees. Negotiations lasted about a year and-a-half with no
bargaining agreement being reached. During a decertification campaign, according to
Prohl, the Auto Workers “walked away.”
The General Counsel and Union presented witnesses for the purpose of
demonstrating the Respondent’s union animus and discriminatory motivation for the
Respondent’s failure to grant or offer to grant the wage increase to the unit employees.7
Teresa Pendleton, a former unit employee, testified that she had an employment
interview on May 7, 2007, with Raymond Teso, a supervisor. Teso told her there was a
“union coming in.” Pendleton indicated she was against unions. Teso encouraged her
to not sign a union card, telling her that if the employees signed cards the Union would
be voted in. Teso said the health insurance the Union wanted would cost the employees
more money than they currently paid, and that employees would lose the pension plan
they currently had if the Union’s 401k plan was put into effect. These things, he said,
would “greatly affect us.” He said there would be a vote, and that “signing the union card
would vote the Union in. And that would be in November.”
Asked to clarify her testimony, Pendleton testified that from her date of hire and
thereafter, Teso continued telling her:
[T]he union has not been established. That’s what he made me
understand, had not been established. And that when they came, when
the Union would come to me to sign a union card, to not sign it because if
I sign it then I’m voting the union in. And as long as we don’t sign the
union cards to November, then the union would not be in Bridges. And
that was in November of ’07.
Q. (By Admin. Law Judge): And what was supposed to happen in
November? Do you know?
A. That the union would be gone. But, again, his whole thing was he
made me understand that the Union had never, had never been
established at Arc Bridges, even though they were representing us, they
were working with us. He made me understand that they were doing this
out of their own free will.

7 The complaint alleges no independent Section 8(a)(1) violations. To the extent that the
testimony of the witnesses may establish independent Sect 8(a)(1) violations, these
matters were resolved by means of an informal Board settlement agreement in
settlement of prior charges brought by the Union against the Respondent.
JD(SF)-53-08
8
In August, according to Pendleton, Teso urged her to attend a union meeting and
again said that voting the Union in would greatly affect the employees. He again said
that the employees would not be able to afford the insurance the Union was proposing,
and they would lose their current pension system. And he urged her to vote against
striking, as the Union had announced a strike vote. Teso also asked Pendleton to talk to
the other employees about “not standing for the Union,” and said that Kris Prohl, the
Respondent’s executive director, “would pat us on the back.”
Pendleton testified that on August 14, 2007, Teso asked her if she would talk to
Norma, a coworker, about not voting for the Union because he felt that Norma was a
major union supporter. Pendleton agreed to do so.
Also in August, Teso held a meeting with the nine unit employees under his
supervision, including Pendleton. According to Pendleton, Teso talked to them about
the Union’s contract proposals, and essentially told the employees what he had
previously told Pendleton alone, supra. He showed them the Union’s proposal and said
the Union wanted $4 million in benefits while the company had only $56,000 to expend
for wage increases. . He encouraged them to go to the union meeting scheduled for
August 18, 2007, because he wanted them to know exactly what the union was
demanding.8
Pendleton did attend the August 18, 2007 meeting. Teso asked her about the
meeting several days later, and Pendleton told him that she had become a union
supporter. She “straight up told him, yes, I support the union because the union is
good,” and suggested to Teso that the company could sell some of its buildings to raise
the money the employees were demanding. Teso said the company could not do that.
There was some pro and con discussion, and Teso said Prohl had intended to give the
employees raises in June but did not do so because they were going to strike or were
going to take a strike vote, and that the $56,000 the company had for the employees
was going to the company’s lawyers. After that conversation there were no further union-
related discussions.
Teso, a member of the Respondent’s bargaining committee, testified that during
the course of his employment interview with Pendleton he mentioned that the company
was beginning contract negotiations with the Union. Pendleton told him that she was not
interested in the union, as her husband was or had been a member of the Teamsters
Union and had experienced problems with that union. Teso admits that after learning
Pendleton did not favor unions in general, he continued to have ongoing conversations
with her about what the Union was proposing, and, after the company received the
Union’s initial proposal, he did encourage her to speak with coworkers. He also had
conversations with other employees who inquired about the status of negotiations, and
urged them to attend union meetings. However, he said nothing to Pendleton about
signing a union card, as the election had taken place and the union had been
established. Thus, it made no difference whether or not Pendleton signed a union card.

8 The Union had announced that a strike vote would be taken at the August 18 meeting.
However, apparently at the meeting, it was decided that the strike vote would be taken
by mail ballot sometime thereafter in August.
JD(SF)-53-08
9
During a staff meeting in August, 2007, Teso read the Union’s proposal to the
employees, as he had been asked by Pendleton and others about the contract
negotiations. He told them he was happy with the Respondent’s current pension
program, in which he participated, and did not say that pensions would be lost. There
was discussion about the Union’s 50 percent proposed pay raise over three years.
After the strike vote in August, 2007, Pendleton told him she had become a union
supporter. Because of this Teso discontinued his conversations with her about union
matters.
Pendleton’s testimony, standing alone, simply does not make much sense. And
to make some semblance of logic or consistency from her testimony requires a degree
of interpolation and supposition. Nevertheless it is clear she indicated to Teso, during
her May 7, 2007 interview, that she did not favor unions, and this caused Teso to
discuss the union situation with her on repeated occasions, during which discussions
Teso attempted to convince her the Union was making demands upon the Respondent
that he, personally, did not like and that would “greatly affect” both himself and the
employees. He asked her to speak to other employees about “not voting for the Union,”
or “not standing for the Union,” (apparently referring to the strike vote that was to be
taken), and said that Kris Prohl, the Respondent’s executive director, “would pat us on
the back” (again, apparently meaning that Prohl would pat them on the back for voting
against strike authorization). And he urged her to attend union meetings so that she
would have firsthand knowledge of what the Union was demanding. Despite these
discussions, and the fact that she received leaflets regarding the strike vote, Pendleton
claims she did not understand that the Union had been “established”9 until she learned
this when, following Teso’s advice, she did attend the August 18, 2007 union meeting.
And, as noted above, Teso held a group meeting with the 9 employees under his
supervision, including Pendleton, during which meeting he read from the Union’s
contract proposal, voiced his objections to some of them, and urged the employees to
attend union meetings.
Despite the difficulties with Pendleton’s testimony, I find that Teso did tell
Pendleton that Prohl had intended to give the employees raises in June but did not do
so, 10 that the $56,000 the company had for the employees was going to the company’s
lawyers, and that “the Union would be gone in November. I credit this testimony of
Pendleton because Pendleton seemed to be a forthright witness who, although confused
about certain matters, was attempting to recount the conversations as she understood
them, and because Teso, during the course of his testimony, did not specifically deny
making such statements.

9 Pendleton apparently believed the Union would not be “established” until a contract
was in place and the employees began paying union dues.
10 However I do not credit that part of Pendleton’s testimony that the wage increase was
withheld in June because of a strike vote, as the strike vote matter did not arise until
August.
JD(SF)-53-08
10
Shirley Bullock, a unit employee, testified that around the end of July or early part
of August, 2007, Area Manager Bonnie Gronendyke, during a work-related telephone
conversation, told her that Kris Prohl “was going to give us a raise until we voted the
Union in.” Bullock asked her how much of a raise, and Gronendike said three percent.
Bullock asked how much that amounted to and Gronendike replied it would amount to a
raise of about 25 cents per hour. Bullock indicated that this amount was insufficient.
Gronendike testified that she did not make this statement to Bullock. Rather,
during a phone conversation in the summer of 2007, regarding staffing issues,
Gronendyke asked Bullock whether there was anything else she wanted to discuss, and
Bullock “jokingly” said, “you can get me a raise.” Gronendyke replied, “now you know
that we’re in a bargaining situation and all economic issues are up for bargaining, and
that’s something that we [can’t] legally do at this time while its in bargaining.”
Gronendyke further testified she had received instructions from management
consultants regarding the responses that managers were to give to employees’
questions.
I credit the testimony of Bullock who testified in a spontaneous fashion and
seemed to have a vivid and detailed recollection of the conversation. Gronendyke’s
testimony on this issue, in contrast, was abbreviated, more measured and less detailed,
and less probable; thus, during the course of a casual “joking” question, it is not likely
that Gronendyke would have responded to Bullock in such a formal, legalistic fashion.
Jaunece Ghant, a non-bargaining unit facility clerk, testified that several days
prior to October 12, 2007, she asked her supervisor, Terry Lancow, why she had not
received a tee-shirt that certain other employees had received for participating in a
particular program. Lancow advised her that she would be getting something better
than a tee shirt, and would find out later what this was. Then, on October 12, 2007, she
received a pay envelope that included the following note: “Please notice that your pay
stub contains a budgets (sic) 3% cost of living adjustment for fiscal year 2008 retroactive
to July 1, 2007.”
As noted, no progress had been made during the course of bargaining over the
economic items. On July 9, 2008, a year after the stalemate in negotiations and three
weeks prior to the instant hearing, Prohl sent a memorandum to all employees entitled
“Bargaining Update.” Included in the memorandum is the following paragraph:
The union has said we have not given pay raises to [unit employees]
because they voted for the AFP. This is simply wrong. It is because of
the union’s unrealistic demands and strategy. We have been in lengthy
negotiations because the union has refused to recognize the limits on the
Agency’s financial resources, and has not prioritized its demands. A year
ago, we asked the union for its priorities and the union still has not
responded. They refused, and continue to demand improvements that
would put the Agency’s financial health and the quality of care given to
our clients in jeopardy.
JD(SF)-53-08
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C. Analysis and Conclusions
The complaint alleges, and the General Counsel and Union maintain, that the
failure to grant the wage increase to unit employees was discriminatorily motivated and
therefore violative of Section 8(a)(3) of the Act.
Cases cited by the General Counsel or Union that find pre-certification
withholding of wage increases to be violative of Section 8(a)(3) of the Act, such as
Florida Steel Corp., 220 NLRB 1201 (1975), enfd. 538 F.2d 324 (4th Cir. 1976), Choctaw
Maid Farms, 308 NLRB 521, 527 (1992), and Associated Milk Products, Inc., 255 NLRB
750 (1981) are inapposite. These cases hold that while Board representation
proceedings are pending an employer is required to continue its established pattern or
practice of granting periodic increases that have become a term and condition of
employment. That is not the situation in the instant case.
Nor is there an allegation in this case that the Respondent has violated Section
8(a)(5) of the Act by unilaterally changing an established term or condition of
employment, namely, the annual granting of wage increases. 11 Accordingly, the various
cases relied upon by the General Counsel in support of a unilateral change argument
are also inapposite. Further, since it is not alleged that the Respondent unilaterally
changed an established practice of granting annual wage increases, it makes no
difference whether in fact such an established practice existed.12
It is clear that an employer may withhold wage increases from employees during
the course of bargaining negotiations, even if those wage increases would have been
granted in the absence of a union, provided the withholding of such increase is not
discriminatorily motivated but is rather motivated by lawful considerations. Shell Oil Co.,
77 NLRB 1306 (1947); Sun Transport, Inc., 340 NLRB 70 (2003); Empire Pacific
Industries, 257 NLRB 1425 (1981); The B.F. Goodrich Company, 195 NLRB 914 (1972).
The Respondent maintains that its determination not to grant the three percent
increase to the unit employees in October, 2007, was dictated by its bargaining strategy,
namely, to use the wage offer to its best advantage by waiting until the Union offered a
realistic package proposal. Thus, the Respondent reasoned that to simply grant the
wage increase and thereafter bargain with no ability to make an additional monetary
offer would serve no useful purpose. Moreover, Prohl testified that she was very
concerned about the possibility of a strike, and believed the “little three percent “ wage
increase offer would make the employees “very unhappy” and a strike more likely.
I conclude from the foregoing, therefore, that in October, at the time the wage
increase was granted to the non-unit individuals, Prohl was no longer concerned that the
granting of the wage increase to the unit employees would precipitate a strike.

11 The charge, but not the complaint, contains an 8(a)(5) allegation that the Respondent
“unilaterally changed its annual wage increase policy without bargaining with the Union.”
12 The parties litigated this matter extensively, and it seems clear, as noted herein, that
an annual wage increase in July of each year, with some exceptions as noted in the
record, had in fact become a condition of employment which the Respondent was not
privileged to unilaterally change.
JD(SF)-53-08
12
The position of the General Counsel and Union is essentially as follows. The
Respondent admits the unit employees would have received this increase absent the
Union, and it seems likely under the circumstances that to have offered and granted the
modest retroactive wage increase during bargaining would have neither advanced nor
hindered the further course of the stalemated negotiations; and since there was no strike
following the strike vote or following the granting of the wage increase to non-bargaining
unit personnel, the Respondent was apparently no longer fearful of a strike. Further,
such a timely wage increase would have helped ameliorate the 34 percent employee
turnover problem; indeed, this was allegedly a principal reason for the granting of the
increase to supervisory and managerial staff. Thus, while the granting of the increase
would not have affected the course of bargaining, the withholding of the increase was
detrimental to the Respondent’s interests in terms of lowered employee morale and
higher employee turnover; accordingly, it follows that the withholding of the increase was
intended to punish the employees for bringing in the Union rather than for any legitimate
purpose.
While such reasoning make sense, the Respondent’s apparent rationale is
equally viable. Namely, the wage increase was all it had to offer; under the
circumstances as the Respondent viewed them the granting of the wage increase in
October, 2007 would have served no useful bargaining purpose; and therefore the
Respondent decided to withhold the increase until such time as it could be used to the
Respondent’s best bargaining advantage. Further, regarding the matter of employee
turnover, the outcome of contract negotiations took precedence over matters of unit
employee retention.
The General Counsel contends the written and verbal statements by
Respondent’s managers and supervisors constitute strong evidence of Respondent’s
discriminatory motive for not granting the wage increase.
Following the first election, the Respondent’s Director of Community Services,
Dorothy Shawver, made the Respondent’s position clear to the employees that the
Union was detrimental to the interests of both the Respondent and its employees;
further, she stated, “In the weeks and months to come you will begin to see how things
turn out and whether the 57 folks who voted for the AFP are able to get what they
thought they would obtain.” And prior to the election in the Residential Supportive Living
Unit, Shawver advised the employees that she would take it “personally” if the
employees voted for the Union, and urged them to vote no.
Further, I have found that Teso did tell Pendleton that Prohl had intended to give
the employees raises in June but did not do so,13 that the $56,000 the company had
for the employees was going to the company’s lawyers, and that “the Union would be
gone in November.” In agreement with the General Counsel, the only reasonable
interpretation to attach to Teso’s latter remarks is that he expected the Union’s departure
to be concurrent with the end of the certification year for the Day Services Unit, which

13 However I do not credit that part of Pendleton’s testimony that the wage increase was
withheld in June because of a strike vote, as the strike vote matter did not arise until
August.
JD(SF)-53-08
13
had been certified on November 15, 2006. Accordingly, the General Counsel argues
that Teso was, in effect, letting Pendleton know that no contract would be agreed upon
by that date and supports the further argument that Respondent planned “to oust the
Union after a year of unsuccessful bargaining.”
In addition, Shirley Bullock, was told by Area Manager Gronendike, during a
work-related telephone conversation, that Kris Prohl “was going to give us a raise until
we voted the Union in.”
As noted above, the Respondent is not alleged to have violated Section 8(a)(5)
of the Act by withholding the wage increase in order to impede the bargaining process or
avoid reaching an agreement. Rather, the Respondent is alleged to have withheld the
wage increase in order to punish and retaliate against the employees for bringing in the
Union. Indeed, given the record evidence of Respondent’s general anti-union bias as
well as Shawver’s adverse personal reaction to the employees’ selection of the Union,
and coupled with the Respondent’s past practice of giving a wage increase to all
employees in July of each year, such a discriminatory intent is clearly plausible.14
However, as noted, the Respondent’s asserted rationale is also feasible as a legitimate
bargaining strategy,15 and it has not been shown that the Respondent’s rationale for
withholding the wage increase is inherently implausible, or unsupported by the record
evidence, or materially inconsistent with other conduct, or that it was advanced merely
as a pretext to mask discriminatory behavior.
Accordingly, I find that the General Counsel has not sustained her burden of
proof under Wright Line16 by proving by a preponderance of the evidence that the
employees’ protected activity was a motivating factor for Respondent’s withholding of the
wage increase; and, assuming arguendo that such a burden has been sustained, I find
that the Respondent has met its Wright Line burden of proof by demonstrating it would
have taken the identical action for legitimate, non-discriminatory reasons.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged in the complaint.

14 I do not find that the credited testimony of Pendleton over Teso, or Bullock over
Gronendike, adds additional weight to the showing of a discriminatory motive vis-a-vis
the wage increase issue: Teso’s statement that the Union would be gone at the end of
the certification year simply indicates that he believed no contract would be negotiated;
and Gronendyke’s statement (and Teso’s similar statement) to the effect that Prohl “was
going to give us a raise until we voted the Union in,” is a correct, albeit incomplete
assertion that may be viewed either as an admission of discriminatory intent or as an
abbreviated and imperfect summary of the rationale readily admitted by the Respondent.
15 See Shell Oil Co., supra.
16 Wright Line, 251 NLRB 1083, enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982).
JD(SF)-53-08
14
On these findings of fact and conclusions of law, I issue the following recommended:
ORDER17
The complaint is dismissed in its entirety.
Dated: December 31, 2008.
________________________
Gerald A. Wacknov
Administrative Law Judge

17 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in
Section 102.48 of the Rules, be adopted by the Board and all objections to them shall be
deemed waived for all purposes.