ARC Bridges

National Labor Relations Board - Board Decisions

Sep 29, 2010

355 N.L.R.B. 1222 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 199
1222
Arc Bridges, Inc. and American Federation of Profes-
sionals. Case13–CA–44627
September 29, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On December 31, 2008, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
General Counsel and the Charging Party each filed ex-
ceptions and a supporting brief, the Respondent filed an
answering brief, and the General Counsel filed a reply
brief. The Respondent filed cross-exceptions and a sup-
porting brief, the General Counsel filed an answering
brief, and the Respondent filed a reply 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, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions only to the extent consistent with this
Decision and Order.
I. INTRODUCTION
For 8 consecutive years, the Respondent annually re-
viewed its finances in June and, if sufficient funds ex-
isted, implemented an across-the-board wage increase in
July. In June 2007, the Respondent determined that it
could give a 3-percent across-the-board wage increase,
and, after an initial delay, gave that increase to its unrep-
resented employees but not to its newly union-
represented employees. The judge found that the Re-
spondent’s conduct did not violate Section 8(a)(3) and
(1) of the Act. We disagree. Indeed, although there is
strong evidence that the withholding of the wage increase
was unlawfully motivated, we find, for the reasons dis-
cussed below, that the Respondent’s conduct was “inher-
ently destructive” of the represented employees’ Section

1 The General Counsel, the Charging Party, and the Respondent have
implicitly excepted to some of the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
7 rights, even absent proof of antiunion motivation. Ac-
cordingly, we find that the Respondent violated Section
8(a)(3) and (1) as alleged.
II. RELEVANT FACTS
The Respondent provides services for developmentally
disabled individuals. On November 15, 2006, and Feb-
ruary 22, 2007,2 the Board certified the Union as the col-
lective-bargaining representative of two distinct units of
employees, known as the day services unit and the resi-
dential supportive living unit. Together, there are ap-
proximately 260 employees in the two units. About 121
individuals (managers, supervisors, and support staff) are
not represented by the Union.
The Respondent’s practice was to review its finances
each June and, if feasible, to grant across-the-board wage
increases in July. The Respondent conducted that review
every year from 1999 through 2006 and provided across-
the-board, nonmerit-based increases in all but 3 years. In
those 3 years, the Respondent reviewed its finances but
did not provide any wage increase because it found it
could not afford one.
The Respondent followed the same review procedure
in 2007. Executive Director Kris Prohl testified that the
Respondent’s board of directors had given her authority
at the board’s June 2007 budget meeting to grant a 3-
percent wage increase to all staff in July. Prohl, how-
ever, decided not to grant the increase to represented or
unrepresented employees at that time “because the situa-
tion was not clear to us to be able to expect what was
going to happen [with the Union].”
In July, during negotiations over an initial collective-
bargaining agreement, the Union made economic de-
mands including, among other things, wage increases
totaling 50 percent over 3 years. The Respondent coun-
tered that the Union sought much more than the Respon-
dent could afford.
On various dates between May and August, former
employee Teresa Pendleton had several conversations
about the Union with Supervisor Raymond Teso. During
those conversations, Teso told Pendleton that: (1) Prohl
had intended to give the employees raises in June; (2) the
$56,000 the Respondent had budgeted for the unit em-
ployees was now going to its lawyers; and (3) “the Union
would be gone in November.” Additionally, in late July
or early August, Area Manager Bonnie Gronendyke told
employee Shirley Bullock that Prohl “was going to give
us a raise until we voted the Union in.”

2 All subsequent dates are in 2007, unless otherwise noted.
ARC BRIDGES, INC. 1223
In August, the Union announced a “Strike Vote.” In
late August, the represented employees voted to author-
ize the Union to call a strike. No strike was called or
instituted, however.
Around October 12, the Respondent granted the previ-
ously authorized 3-percent across-the-board wage in-
crease, retroactive to July, to all unrepresented employ-
ees. Employees represented by the Union received no
increase.
Prohl testified that if she had proposed, and the Union
had accepted, the 3-percent increase for represented em-
ployees, the Respondent would have had no further bar-
gaining leverage on the topic of wages. Prohl also testi-
fied that because the employees had voted to authorize a
strike, she believed that such a relatively “little 3-
percent” wage offer, compared with the Union’s 50-
percent 3-year wage proposal, would make the employ-
ees “very unhappy” and a strike more likely.
Some time later, the Respondent offered the Union a
1.5-percent wage increase and, later still, a 2-percent
increase, both retroactive to July. 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.”
III. THE JUDGE’S DECISION
As stated, the judge found no violation and dismissed
the complaint. The judge found that the Respondent’s
practice of granting wage increases based on its annual
financial review had become an established term and
condition of employment. In his view, however, that
finding was irrelevant because the General Counsel had
not alleged a violation of Section 8(a)(5). Accordingly,
the judge cabined his analysis within the Shell Oil line of
cases,3 which hold that employers may treat represented
and unrepresented employees differently when imple-
menting new benefits, as long as the disparate treatment
is not unlawfully motivated. Applying Wright Line,4 the
judge concluded that the Respondent did not violate Sec-
tion 8(a)(3) because, in his view, the General Counsel
failed to establish unlawful motivation.
IV. DISCUSSION
We reverse the judge’s dismissal. Specifically, we
conclude that the Respondent’s withholding of an estab-
lished term and condition of employment from its newly
organized employees, while continuing the same for un-
organized employees, was “inherently destructive” of

3 See Shell Oil Co., 77 NLRB 1306 (1948); see also Sun Transport,
Inc., 340 NLRB 70 (2003); Empire Pacific Industries, 257 NLRB 1425
(1981); B. F. Goodrich Co., 195 NLRB 914 (1972).
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
their Section 7 rights and, accordingly, violated Section
8(a)(3) and (1).
The Shell Oil cases applied by the judge stand for the
general proposition that the Act does not require employ-
ers to afford represented and unrepresented employees
the same wages and benefits. For example, an employer
may, as part of a bargaining strategy, withhold from rep-
resented employees a wage increase granted to unrepre-
sented employees, provided the withholding is not dis-
criminatorily motivated. The key fact in the Shell Oil
cases, however, is that the wages or benefits withheld
from represented employees were new.5
By contrast, where an employer withholds from its
represented employees an existing benefit (i.e., an estab-
lished condition of employment), the proper analytical
framework is found in NLRB v. Great Dane Trailers,
Inc., 388 U.S. 26 (1967). In those circumstances, the
Board will find that the unilateral withholding of an es-
tablished condition of employment from only the repre-
sented employees is “inherently destructive” of their Sec-
tion 7 rights, even absent proof of antiunion motivation.6
See United Aircraft Corp., 199 NLRB 658, 662 (1972),
enfd. in relevant part 490 F.2d 1105 (2d Cir. 1973); East-
ern Maine Medical Center, 253 NLRB 224, 242 (1980),
enfd. 658 F.2d 1 (1st Cir. 1981). The key question,
therefore, is whether the June–July wage review process
was, as the judge found, an established condition of em-
ployment for all of the Respondent’s employees, includ-
ing those represented by the Union.
A. The Respondent’s Annual Wage Review/Increase
was an Established Condition of Employment
The evidence supports the judge’s finding that the Re-
spondent had a practice of reviewing its finances each
June and then granting nonmerit-based, across-the-board
wage increases to employees each July, if sufficient
funds existed.7 The Respondent conducted that review
each and every year from 1999 through 2006 and either
provided an across-the-board increase (in 5 of those

5 See Shell Oil Co., 77 NLRB at 1309 (employer implemented new
pay increase and hours only for unrepresented employees); see also Sun
Transport, Inc., 340 NLRB at 72 (employer offered lower severance
pay to unrepresented employees); Empire Pacific Industries, 257
NLRB at 1426 (employer granted new cost-of-living increase only to
unrepresented employees); B. F. Goodrich Co., 195 NLRB at 915
(employer granted new profit-sharing benefits only to unrepresented
employees).
6 No proof of antiunion motivation is necessary because inherently
destructive conduct “carries with it unavoidable consequences which
the employer not only foresaw but which he must have intended and
thus bears its own indicia of intent.” Great Dane Trailers, supra at 33
(internal quotations and citation omitted).
7 That the specific amount of the increase was not fixed is not sig-
nificant. See Otis Hospital, 222 NLRB 402, 404 (1976), enfd. 545 F.2d
251, 255 (1st Cir. 1976).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1224
years) or gave no increase at all (in 3 of those years). We
agree with the judge that the described pattern amounted
to an established condition of employment. See Eastern
Maine, supra at 242 (“regular and periodic” wage sur-
veys followed by increases “were as much conditions of
employment . . . as the promise of a wage increase in
United Aircraft”).
In its cross-exceptions, the Respondent points to the
fact that, in several instances, it granted merit-based
wage increases or bonuses at times other than July and
that it provided no across-the-board increase in July
2002, 2003, and 2004. Relying on that evidence, it ar-
gues that “the variable nature of the timing, methodol-
ogy, and scope of past wage adjustments . . . is preclu-
sive of a determination that a practice exists.” That ar-
gument is a diversion.
None of the evidence that the Respondent granted
other types of increases at other times of the year
changes the fact that it still reviewed its finances each
June and, when financially feasible, granted an across-
the-board increase each July. Nor is that practice under-
cut by the Respondent’s decision not to give such in-
creases in July 2002, 2003, or 2004. The Respondent’s
own salary summary, which it submitted as an exhibit at
the hearing, shows that it conducted its annual review in
those years, inasmuch as it lists the dates of July 2002,
July 2003, and July 2004. Presumably, the Respondent’s
annual review indicated that no across-the-board increase
was warranted in those years. That was not the case in
2007.
Executive Director Prohl’s own credited testimony
confirms that in 2007, if not for the existence of the Un-
ion, the Respondent, based on its annual review, would
have provided a 3-percent increase to all employees in
July. She testified that she was given authority by the
board of directors in June 2007 to grant a 3-percent in-
crease to all staff in July. Additionally, the credited tes-
timony of employee Bullock is that Prohl said that she
had intended to give the employees raises but did not do
so because of the Union.
Accordingly, we find that the 3-percent increase pro-
vided to unrepresented employees on October 12, 2007,
retroactive to July 2007, was an established condition of
employment for the Respondent’s represented employ-
ees.
B. The Respondent’s Withholding of the 2007
Wage Increase from its Represented Employees was
“Inherently Destructive” of their Section 7 Rights
The Respondent’s rationale for withholding the 3-
percent wage increase from represented employees was
that it wanted to enhance its bargaining position in nego-
tiations with the Union. According to the Respondent, 3
percent was all it had to offer, and it believed that grant-
ing the increase to represented employees in October
2007 would have served no useful bargaining purpose.
Therefore, it decided to withhold the increase until such
time as it could be used to the Respondent’s best advan-
tage in bargaining.
The Respondent’s rationale is essentially an admission
that the represented employees did not receive the Octo-
ber 2007 across-the-board wage increase because they
chose union representation. Indeed, that choice, the Re-
spondent contends, is what permitted it to withhold the
annual increase and, in effect, take the position that the
increase would have to be negotiated back by the Union.
Leaving no room for doubt, the Respondent, in its an-
swering brief, echoes the judge’s characterization of its
conduct as a “legitimate bargaining strategy.” Board
law, however, is clearly to the contrary.
In United Aircraft Corp., 199 NLRB at 662, the Board
found similar conduct to be “inherently destructive” of
employee rights, with a consequence of discouraging
union activity in violation of Section 8(a)(3) and (1).
The employer in that case had denied a scheduled wage
increase to newly represented employees, and its vice
president admitted that it did so because it was in nego-
tiations with the union. Citing Great Dane Trailers, 388
U.S. at 34, the Board found that because the increase was
an established condition of employment, its denial was
“‘inherently destructive’ of important employee rights,”
even absent proof of antiunion motivation. 199 NLRB at
662. The Board then rejected the employer’s proffered
business justification: that the promised wage increase
was based on the assumption that other matters of com-
pensation would remain the same. Id. The Board rea-
soned that if the belief that bargaining with the union will
have negative financial consequences could justify dis-
crimination, “the proscriptions and protections of the Act
would be rendered largely nugatory.” Id.
Likewise, in Eastern Maine Medical Center, 253
NLRB at 242, the employer had conducted a wage sur-
vey each year for the previous 8 years, which led to
across-the-board wage increases. In 1976, however, the
employer broke from that pattern by granting an increase
to all employees except unit employees. Id. at 241. The
employer’s director testified that the wage survey preced-
ing the 1976 increase included the unit employees, and
he conceded that represented employees did not receive
the increase because the employer had been in negotia-
tions with the union over wages. Id. at 242. Citing
United Aircraft, supra, the Board concluded that the em-
ployer’s refusal to provide the wage increase, which it
found to be an established condition of employment, was
inherently destructive of important employee rights and
ARC BRIDGES, INC. 1225
therefore violative of Section 8(a)(3), even without spe-
cific proof of antiunion motivation. Id.
Applying United Aircraft and Eastern Maine Medical
Center here leads to the same result. First, as in those
cases, an annual wage increase, when the annual review
of finances found it possible, was, for the reasons ex-
plained above, an established condition of employment
for all of the Respondent’s employees, including those
represented by the Union.8 Second, like the employers’
rationale in United Aircraft and Eastern Maine Medical
Center, the Respondent’s stated reason for withholding
the wage increase from represented employees was that it
was in negotiations with the Union over wages. Finally,
as in those cases, a high-ranking official admitted that the
increase was withheld because the company was in nego-
tiations with the union—in this case, Executive Director
Prohl conceded that all employees would have received a
3-percent increase in July 2007 if the Respondent had not
been in negotiations with the Union.
For the above reasons, the Respondent’s withholding
of the 2007 annual wage increase from its represented
employees was inherently destructive of their Section 7
rights, even without specific proof of antiunion motiva-
tion.9 Accordingly, the Respondent violated Section
8(a)(3) and (1).

8 Because the October 2007 wage increase was an existing benefit,
the Respondent was no more privileged to withhold it from represented
employees than it would have been, for example, to revoke their health
benefits or vacation allotment. See More Truck Lines, 336 NLRB 772,
773 (2001), enfd. 324 F.3d 735 (D.C. Cir. 2003).
9 Even so, the record strongly indicates that the Respondent’s con-
duct was motivated by union animus. First, Executive Director Prohl
essentially blamed the Union when she said that she was going to give
employees a 3-percent increase until they “voted the Union in,” and
that the $56,000 that had been budgeted for the represented employees
now had “to go to pay for the lawyers.” Second, Prohl’s testimony that
she believed a 3-percent increase would make the represented employ-
ees more likely to strike appears to be pretextual, as it is undermined by
her subsequent decision to offer those employees an even smaller, 1.5-
percent increase. Third, one of the Respondent’s managers told an
employee that Prohl would “pat us on the back” for opposing the Un-
ion, and another manager sent a note to employees telling them that she
takes their support for the Union “personally.” Finally, the evidence
suggests that the Respondent’s decision to delay, and eventually with-
hold, the increase from represented employees was motivated by the
approaching end of the certification year for the day services unit on
November 15. As the judge found, the Respondent’s practice was to
give annual wage increases each July, when financially feasible. After
the arrival of the Union, however, the Respondent waited until mid-
October to grant the increase, to unrepresented employees only, making
it retroactive to July. Unrepresented employees, therefore, received a
raise and a lump-sum payment shortly before the expiration of one
bargaining unit’s certification year. That this unprecedented delay was
not coincidental is borne out by Supervisor Teso’s statement that “the
Union would be gone in November.”
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)(3) and
(1) by unilaterally withholding from its newly organized
employees an annual wage increase that they would have
received but for the Respondent’s discrimination, we
shall order that each of the affected employees be reim-
bursed for the increases they would have received on
October 12, 2007, retroactive to July 2007, to the present
by payment to them of the difference between their ac-
tual wages and the wages they would have received had
the increases been granted to them in the manner that
they were granted to the Respondent’s unrepresented
employees, plus interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).10
ORDER
The National Labor Relations Board orders that the
Respondent, Arc Bridges, Inc., Gary, Indiana, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in the American Federa-
tion of Professionals (AFP), or any other labor organiza-
tion, by withholding wage increases from employees
represented by the AFP, or any other labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole employees in the appropriate collec-
tive-bargaining units11 for any monetary loss they have

10 The General Counsel seeks compound interest computed on a
quarterly basis for any backpay or other monetary awards. Having duly
considered the matter, we are not prepared at this time to deviate from
our current practice of assessing simple interest. See, e.g., Rogers
Corp., 344 NLRB 504 (2005).
11 The appropriate collective-bargaining units are:
All full-time and regular part-time entry level Day Services
Employees including Assistant Trainer, Community Connections
Specialist, COTA (Certified Occupational Therapy Assistant),
DSP (Direct Support Professional), Aquatics Manager, DSP Fol-
low Along, DSP H & S (Health & Safety) Technician, DSP Job
Coach, DSP Lead Trainer, DSP Recreation Manager, DSP SIP
(Social Integration Program) Technician, DSP Trainer, Employ-
ment Specialist, and Substitute Trainer, employed by the Respon-
dent at its facilities currently located at 2650 West 35th Avenue,
Gary, Indiana, 2660 West 35th Avenue, Gary Indiana, 2395 West
Old Ridge Road, Hobart, Indiana, 550 East Burrell Drive, Crown
Point, Indiana, and 9600 Kennedy Avenue, Highland, Indiana; but
excluding all Residential Services employees, all Supported Liv-
ing Services employees, temporary employees, volunteers, clients
on the payroll, managerial employees, confidential employees, of-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1226
suffered as a result of the failure to grant to those em-
ployees the increased wages generally granted to unrep-
resented employees on October 12, 2007, retroactive to
July 2007, plus interest, in the manner set forth in the
remedy section of this decision.
(b) 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 re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of reimbursement
due under the terms of this Order.
(c) Within 14 days after service by the Region, post at
its facilities in Gary, Indiana, and any other facilities,
copies of the attached notice marked “Appendix.”12
Copies of the notice, on forms provided by the Regional
Director for Region 13, after being signed by the Re-
spondent’s authorized representative, 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. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facilities involved in these proceedings, 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 October 12, 2007.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

fice clerical employees and guards, professional employees and
supervisors as defined in the Act.
All full-time and regular part-time Direct Support Profession-
als (DSP’s), Lead DSP’s and Medical/Residential Drivers em-
ployed by the Respondent at its Residential and Supported Living
facilities currently located in Lake and Porter Counties, Indiana;
but excluding all other employees, Day Services employees, tem-
porary employees, volunteers, clients on the payroll, managerial
employees, confidential employees, office clerical employees and
guards, professional employees and supervisors as defined in the
Act.
12 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.”
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 discourage membership in the American
Federation of Professionals (AFP), or any other labor
organization, by withholding wage increases from em-
ployees represented by the AFP, or any other labor or-
ganization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make whole employees in the appropriate
collective-bargaining units for any monetary loss they
have suffered as a result of the failure to grant to those
employees the increased wages generally granted to un-
represented employees on October 12, 2007, retroactive
to July 2007, plus interest.

ARC BRIDGES, INC.

Jeanette Schrand, Esq., for the General Counsel.
Raymond C. Haley, III, Esq. (Woodward, Hobson & Fulton,
LLP), of Louisville, Kentucky, for the Respondent.
Eugene Elk, International Representative, of Pittsburgh, Penn-
sylvania, 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 Chi-
cago, Illinois, on July 28 and 29, 2008. The charge was filed by
American Association of Professionals (the Union) on March
31, 2008. Thereafter, on May 28, 2008, the Regional Director
for Region 13 of the National Labor Relations Board (the
Board) issued a complaint and notice of hearing alleging a vio-
lation by Arc Bridges (Respondent) of Section 8(a)(1) and (3)
National Labor Relations Act (the Act). The Respondent, in its
answer to the complaint, duly filed, denies that it has violated
the Act as alleged.
ARC BRIDGES, INC. 1227
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 (the Gen-
eral Counsel), counsel for the Respondent, and counsel for the
Union. On the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted, I make
the following
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 mate-
rials valued in excess of $50,000 directly from points outside
the State of Indiana. It is admitted and I find that the Respon-
dent 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 mean-
ing of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issue in this proceeding is whether the Re-
spondent has violated and is violating Section 8(a)(1) and (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 develop-
mentally 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 representa-
tive of two distinct units of employees, known as the day ser-
vices unit and the residential supportive living unit, respec-
tively. Both units, collectively, total approximately 260 em-
ployees, who provide the aforementioned services to the Re-
spondent’s clients. Approximately 121 individuals, consisting
of managers, supervisors, truckdrivers, and clerical support
staff, are not represented by the Union; of this number ap-

1 The record also shows the Respondent is a health care institution
within the meaning of Sec. 2(14) of the Act.
proximately 70 to 80 individuals are not managers or supervi-
sors.
The Respondent actively campaigned against the Union dur-
ing the two preelection campaigns. Following the first election,
Dorothy Shawver, Respondent’s director of community ser-
vices, sent a memo to the employees, inter alia, as follows:

As you know the Day Services Staff voted for union represen-
tation. 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 member-
ship card. [Original emphasis.]

And on January 24, 2007, prior to the election in the residen-
tial 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 won-
derful 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 in-
formed 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 ex-
perience behind us and refocus our efforts on those people
that are most important to us—our clients. [Original empha-
sis.]

Collective bargaining for the day services unit began in De-
cember 2006, and collective bargaining for the residential sup-
portive 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, particu-
larly the economic issues, were identical for both units.
On July 10, 2007, the Union presented its initial economic
demands as part of a multipage proposed collective-bargaining
agreement. Up to this point in negotiations the parties had
apparently not discussed monetary issues. Included in the de-
mands were a health insurance proposal requiring the Respon-
dent 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
401(k) plan administered by the Union.
At the following session, on July 12, 2007, the Respondent
presented the Union with several documents: A document
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1228
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 out-
lays by the Respondent of $4, 311,905.
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 Un-
ion 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 posi-
tion that wages, and apparently current health care and pension
benefits, be frozen, and declined to provide a counterproposal
on wages, or apparently other economic issues.
The parties were not scheduled to meet again until August 8,
2007. However, that negotiating session was canceled due to
the illness of the Union’s chief negotiator. Before another nego-
tiating session was held the Union sent out an announcement to
the bargaining unit employees entitled “Strike Vote.” The an-
nouncement 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 im-
portant” 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! [Origi-
nal 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 nonunit 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
2 years, 2005 and 2006, before the Union became the employ-
ees’ 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 op-
erations of the Respondent. Prohl testified that at the June 2007
budget meeting she was given authority by the board of direc-
tors 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 ques-
tioned 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.
Since the aforementioned July 2007 negotiating sessions
there have been no change in either the Union’s or the Respon-
dent’s bargaining position, and the only significant event there-
after 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 reso-
lution of the matter, Prohl decided to grant the aforementioned
wage increase, retroactive to July 2007, to all nonbargaining
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 unilater-
ally 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 bargain-
ing 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 run-
ning out under the terms of the grant, the Respondent was look-
ing for a quick response from the Union regarding this pro-
posal. 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 3-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

2 Because the Respondent is a health care institution, the Union was
required to give the Respondent the appropriate 10-day advance written
notification of a strike under Sec. 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 dis-
tribution of the grant money, but the fact that the grant expired without
the money being distributed to the employees was not due to the Un-
ion’s inattention or disinterest.
ARC BRIDGES, INC. 1229
increase than the mere $53,497 that the Respondent maintained
it had available.
On the other hand, if the Union agreed to the 3-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 nego-
tiated. 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 memoran-
dum 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 ad-
justment 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 nego-
tiations 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 sal-
ary 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 in-
creases, 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.
Thereafter, during the course of bargaining, the Respondent
offered the Union a 1-1/2-percent retroactive wage increase,
and later offered a 2-percent retroactive wage increase. The

5 The turnover for the managerial and supervisory staff was pro-
jected to be about 40 percent for 2008.
6 The turnover for the unit employees and apparently the nonunit
employees, was about 34 percent.
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-1990s there was a prior union
certification of the Auto Workers Union as the collective-
bargaining representative of certain of the Respondent’s em-
ployees. Negotiations lasted about a 1-1/2 years with no bar-
gaining agreement being reached. During a decertification
campaign, according to Prohl, the Auto Workers “walked
away.”
The General Counsel and the 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 encour-
aged her to not sign a union card, telling her that if the employ-
ees 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
401(k) 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 un-
ion in. And as long as we don’t sign the union cards to No-
vember, then the union would not be in Bridges. And that
was in November of ‘07.
Q. (BY THE 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.

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 pro-
posing, and they would lose their current pension system. And
he urged her to vote against striking, as the Union had an-
nounced a strike vote. Teso also asked Pendleton to talk to the

7 The complaint alleges no independent 8(a)(1) violations. To the ex-
tent that the testimony of the witnesses may establish independent
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1230
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 sup-
porter. Pendleton agreed to do so.
Also in August, Teso held a meeting with the nine unit em-
ployees 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 pre-
viously told Pendleton alone, supra. He showed them the Un-
ion’s proposal and said the Union wanted $4 million in benefits
while the Company had only $56,000 to expend for wage in-
creases. He encouraged them to go to the union meeting sched-
uled 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 demand-
ing. 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 Pen-
dleton did not favor unions in general, he continued to have
ongoing conversations with her about what the Union was pro-
posing, 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.
During a staff meeting in August 2007, Teso read the Un-
ion’s proposal to the employees, as he had been asked by Pen-
dleton 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

8 The Union had announced that a strike vote would be taken at the
August 18 meeting. However, apparently at the meeting, it was de-
cided that the strike vote would be taken by mail ballot sometime there-
after in August.
be lost. There was discussion about the Union’s 50-percent
proposed pay raise over 3 years.
After the strike vote in August 2007, Pendleton told him she
had become a union supporter. Because of this, Teso discon-
tinued 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 consis-
tency from her testimony requires a degree of interpolation and
supposition. Nevertheless it is clear she indicated to Teso, dur-
ing 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 on the Respon-
dent 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, appar-
ently 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, Pendle-
ton claims she did not understand that the Union had been “es-
tablished”9 until she learned this when, following Teso’s ad-
vice, she did attend the August 18, 2007 union meeting.
And, as noted above, Teso held a group meeting with the
nine employees under his supervision, including Pendleton,
during which meeting he read from the Union’s contract pro-
posal, 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 Com-
pany’s lawyers, and that “the Union would be gone in Novem-
ber.” 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 state-
ments.
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 3 percent. Bullock asked how much that
amounted to and Gronendike replied it would amount to a raise

9 Pendleton apparently believed the Union would not be “estab-
lished” 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.
ARC BRIDGES, INC. 1231
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, “[Y]ou can get me a raise.”
Gronendyke replied, “[N]ow you know that we’re in a bargain-
ing 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 re-
sponses that managers were to give to employees’ questions.
I credit the testimony of Bullock who testified in a spontane-
ous fashion and seemed to have a vivid and detailed recollec-
tion 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 nonbargaining unit facility clerk, testified
that several days prior to October 12, 2007, she asked her su-
pervisor, Terry Lancow, why she had not received a T-shirt that
certain other employees had received for participating in a par-
ticular program. Lancow advised her that she would be getting
something better than a T-shirt, and would find out later what
this was. Then, on October 12, 2007, she received a pay enve-
lope 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 3 weeks prior to the in-
stant hearing, Prohl sent a memorandum to all employees enti-
tled “Bargaining Update.” Included in the memorandum is the
following paragraph:

The union has said we have not given pay raises to [unit em-
ployees] 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 fi-
nancial 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.
C. Analysis and Conclusions
The complaint alleges, and the General Counsel and the Un-
ion maintain, that the failure to grant the wage increase to unit
employees was discriminatorily motivated and therefore viola-
tive of Section 8(a)(3) of the Act.
Cases cited by the General Counsel or the Union that find
precertification 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); Choc-
taw Maid Farms, 308 NLRB 521, 527 (1992); and Associated
Milk Products, 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 be-
come 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 an-
nual granting of wage increases.11 Accordingly, the various
cases relied on 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 differ-
ence 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); and B. F. Goodrich Co.,
195 NLRB 914 (1972).
The Respondent maintains that its determination not to grant
the 3-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 em-
ployees “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 nonunit individu-
als, Prohl was no longer concerned that the granting of the
wage increase to the unit employees would precipitate a strike.
The position of the General Counsel and the Union is essen-
tially 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 fol-
lowing the strike vote or following the granting of the wage
increase to nonbargaining 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 prin-

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1232
cipal 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 withhold-
ing of the increase was detrimental to the Respondent’s inter-
ests 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 appar-
ent 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 advan-
tage. 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 state-
ments 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; fur-
ther, 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 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 Re-
spondent planned “to oust the Union after a year of unsuccess-
ful bargaining.”
In addition, Shirley Bullock, was told by Area Manager
Gronendike, during a work-related telephone conversation, that

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.
Kris Prohl “was going to give us a raise until we voted the Un-
ion in.”
As noted above, the Respondent is not alleged to have vio-
lated Section 8(a)(5) of the Act by withholding the wage in-
crease 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 antiunion 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 discrimina-
tory behavior.
Accordingly, I find that the General Counsel has not sus-
tained 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 bur-
den 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, nondiscriminatory
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.
[Recommended Order for dismissal omitted from publica-
tion.]

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 state-
ment 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 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).