Kankakee Valley Rural Electric Membership Corp.

National Labor Relations Board - Board Decisions

Apr 7, 2003

338 N.L.R.B. 906 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 906
Kankakee Valley Rural Electric Membership Corp.
and International Brotherhood of Electrical
Workers, Local 1393, AFL–CIO–CLC. Case
25–CA–28011–1
April 7, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On December 18, 2002, Administrative Law Judge
John T. Clark issued the attached decision. The General
Counsel filed limited exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge's rulings, findings, and conclusions as
modified below1 and to adopt the recommended Order as
modified and set forth in full below.2
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 5.
“5. The Respondent has violated Section 8(a)(5) and
(1) of the Act by failing and refusing to bargain in good
faith with the Union by unilaterally failing and refusing
to grant, since January 1, 2002, (1) annual wage in-
creases to employees in the unit; (2) biannual wage in-
creases to apprentice linemen and groundmen who are
employees in the unit; and (3) matching 401(k) retire-
ment plan contributions to employees in the unit, without
prior notice to the Union and without affording the Un-
ion an opportunity to bargain with respect to any changes
in terms and conditions of employment.”

1 No exceptions have been filed to the judge’s findings that the Re-
spondent failed and refused to bargain in good faith with the Union by
unilaterally failing and refusing to grant, since January 1, 2002 (1)
annual wage increases to employees in the unit; (2) biannual wage
increases to apprentice linemen and groundmen who are employees in
the unit; and (3) matching 401(k) retirement plan contributions to em-
ployees in the unit, without prior notice to the Union and without af-
fording the Union an opportunity to bargain with respect to any
changes in terms and conditions of employment. However, the judge
inadvertently omitted reference to the unilateral nature of the changes
from the conclusions of law. Therefore, we will amend the conclusions
of law to correct this omission.
2 Pursuant to the General Counsel’s limited exceptions, we have
modified the judge’s recommended Order to reflect all the violations
found. We shall substitute a new notice to conform to the Order.
No exceptions have been filed to the judge’s recommendation that
the Union’s certification year be extended in accordance with Mar-Jac
Poultry Co., 136 NLRB 785 (1962). However, the General Counsel
requests that the Mar-Jac remedy be included in the Order and notice.
Accordingly, the Order and notice provide that the 1-year extension of
the initial year of certification shall begin on the date that the Respon-
dent commences to bargain in good faith with the Union.
ORDER
The Respondent, Kankakee Valley Rural Electric
Membership Corp., Wanatah, Indiana, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the International Brotherhood of Electrical Workers, Lo-
cal 1393, AFL–CIO–CLC as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit, by unilaterally failing and refusing
to grant (1) annual wage increases to employees in the
appropriate bargaining unit set forth below; (2) biannual
wage increases to apprentice linemen and groundmen
who are employees in the appropriate bargaining unit set
forth below; and (3) matching 401(k) retirement plan
contributions to employees in the appropriate bargaining
unit set forth below, without prior notice to the Union
and without affording the Union an opportunity to bar-
gain with respect to any changes in terms and conditions
of employment:

All full-time and regular part-time linemen, crew lead-
ers, groundmen, operators, apprentices and tree-
trimmers employed by the Respondent at its Wanatah,
Indiana facility; but excluding all office clerical em-
ployees, all line coordinators, all professional employ-
ees, and all guards and supervisors as defined in the Act
and all other employees.

(b) Failing and refusing to grant the above-described
wage and benefit increases to bargaining unit employees
because employees formed, joined, and assisted the Un-
ion and engaged in other protected concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole all bargaining unit employees for any
loss of earnings and other benefits suffered as a result of
the Respondent’s unlawful conduct, in the manner set
forth in the remedy section of the decision.
(b) On request, bargain in good faith with the Union as
the exclusive collective-bargaining representative of em-
ployees in the appropriate bargaining unit set forth above
concerning changes in wages, benefits, and other terms
and conditions of employment. The certification year
shall extend 1 year from the date that such good-faith
bargaining begins.
(c) 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-
338 NLRB No. 135
KANKAKEE VALLEY RURAL ELECTRIC MEMBERSHIP CORP. 907
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 backpay due
under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility in Wanatah, Indiana, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 January 1, 2002.
(e) 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.
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 fail and refuse to bargain in good faith
with the International Brotherhood of Electrical Workers,

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Local 1393, AFL–CIO–CLC as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit, by unilaterally failing and refusing
to grant (1) annual wage increases to employees in the
appropriate bargaining unit set forth below; (2) biannual
wage increases to apprentice linemen and groundmen
who are employees in the appropriate bargaining unit set
forth below; and (3) matching 401(k) retirement plan
contributions to employees in the appropriate bargaining
unit set forth below, without prior notice to the Union
and without affording the Union an opportunity to bar-
gain with respect to any changes in terms and conditions
of employment:

All full-time and regular part-time linemen, crew lead-
ers, groundmen, operators, apprentices and tree-
trimmers employed by us at our Wanatah, Indiana fa-
cility; but excluding all office clerical employees, all
line coordinators, all professional employees, and all
guards and supervisors as defined in the Act and all
other employees.

WE WILL NOT fail and refuse to grant the above-
described wage and benefit increases to bargaining unit
employees because employees formed, joined, and as-
sisted the Union and engaged in other protected con-
certed activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole all bargaining unit employees for
any loss of earnings and other benefits suffered as a re-
sult of our unlawful conduct, plus interest.
WE WILL, on request, bargain in good faith with the
Union as the exclusive collective-bargaining representa-
tive of employees in the appropriate bargaining unit con-
cerning changes in wages, benefits, and other terms and
conditions of employment. The certification year shall
extend 1 year from the date that such good-faith bargain-
ing begins.

KANKAKEE VALLEY RURAL ELECTRIC
MEMBERSHIP CORP.

Joanne C. Mages and Rebekah Ramirez, Esqs., for the General
Counsel.
Darrel D. Jacobs, Esq., of Danville, Illinois, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in Valparaiso, Indiana, on August 12 and 13, 2002. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 908
charge was filed January 24 and amended March 26, 2002,1 and
the amended complaint issued May 15. The amended com-
plaint alleges that Kankakee Valley Rural Electric Membership
Corporation (the Respondent) violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act (the Act) when it failed
and refused to grant annual wage increases to the bargaining
unit employees on January 2002 and failed and refused to grant
apprentice linemen and groundmen biannual wage progression
and step increases.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with a principal place of
business in Wanatah, Indiana, is a public utility which provides
electrical energy and related services. During the 12-month
period ending December 31, 2001, the Respondent in conduct-
ing its business operations purchased and received at its Wana-
tah, Indiana facility goods valued in excess of $50,000 directly
from points outside the State of Indiana. The Respondent ad-
mits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.2
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
With the exception of 1 or 2 years the Respondent, in Janu-
ary of each year, has given its employees an annual wage in-
crease since at least 1969 (Tr. 156–157). Additionally, the
Respondent matches, up to a certain percentage, the employees’
contribution to their 401(k) retirement plans. During at least
the 4 previous years, if an increase in the matching percentage
was given, it was also done in January. In January 2002, all
hourly employees, except those in the bargaining unit, received
a 2-1/2-percent wage increase and a one-half percent increase
in the matching 401(k) contribution. Additionally, the Respon-
dent maintains a 4-year apprenticeship program for linemen.
The program requires that apprentices receive a wage step in-
crease every January and July until they are paid the linemen
rate. Groundmen also receive scheduled wage increases in
January and July, until they are paid the top rate for ground-
men. The Respondent refused to grant the scheduled wage
increases to these bargaining unit classifications in 2002. On
December 11, 2001, the Union requested, in accordance with
the past practice, that the bargaining unit employees receive the
same increases as those granted to nonbargaining unit employ-
ees. The Respondent, by letter dated December 20 refused,
contending that the board of directors did not consider an in-

1 All dates are in 2002 unless otherwise indicated.
2 Although the unit description uses the term groundsmen, it appears
that groundmen is correct and will be used in this decision. Counsel for
the General Counsel’s unopposed motion to correct the transcript is
granted. (GC Br. 2 fn. 1, 3 fn. 3.)
crease for those employees so as not to commit an unfair labor
practice during the time the representation election was pend-
ing. (GC Exhs. 10, 11.)
The Union filed a petition for a representation election on
October 18, 2001. The election was held on November 29 and
the Union was certified as the bargaining representative on
December 7. It was also around this time period that the
Respondent and Marshall County REMC, a neighboring, but
much smaller cooperative, discussed a possible merger. In
April 2002, Marshall County REMC voted not to merge with
the Respondent.
B. Contentions of the Parties
The General Counsel contends that the Respondent, by fail-
ing and refusing to grant the annual wage increase, and the
increase in the matching 401(k) contribution, to bargaining unit
employees, and by failing and refusing to grant the biannual
wage step increases to apprentice linemen and groundmen in
the bargaining unit, violated Section 8(a)(1) and (5) of the Act.
The General Counsel also contends that the Respondent, by
engaging in such conduct, is discriminating in regard to the hire
or tenure or terms or conditions of employment of its employ-
ees, thereby discouraging membership in a labor organization
in violation of Section 8(a)(1) and (3) of the Act.
The Respondent argues that it froze the wages of the
bargaining unit employees based on a legitimate business
reason, i.e., the wages of the bargaining unit employees were
higher than the wages of the Marshal REMC employees in
those classifications, thus the Respondent decided to freeze the
wages of its employees pending its merger with Marshall
REMC. It further offers that this decision was made before the
Respondent knew of any union activity and was therefore under
no obligation to bargain with the Union.
C. Discussion
1. The 8(a)(5) allegation
The complaint alleges that the Respondent by failing and re-
fusing to grant the annual wage increase to bargaining unit
employees, and by failing and refusing to grant the biannual
wage step increases to apprentice linemen and groundmen in
the bargaining unit, violated Section 8(a) (1) and (5) of the Act.
Although the complaint does not mention the increase in the
matching 401(k) contribution it is subsumed as part of the an-
nual wage increase. Additionally, counsel for the General
Counsel made it clear in her opening remarks that it was the
subject of litigation, and the matter was fully litigated. The
complaint also alleges that the Respondent engaged in such
conduct without prior notice to the Union and without affording
the Union an opportunity to bargain with the Respondent with
respect to its conduct and the effects thereof.
Section 8(a)(5) of the Act mandates that an employer must
“bargain collectively with the representatives of his employ-
ees.” Section 8(d) defines the duty to bargain collectively as
“the mutual obligation of the employer and the representative
of the employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other terms and
conditions of employment.”
KANKAKEE VALLEY RURAL ELECTRIC MEMBERSHIP CORP. 909
Matters within the broad ambit of “wages, hours, and other
terms and conditions of employment” are deemed mandatory
subjects of bargaining. NLRB v. Borg-Warner Corp., 356 U.S.
342 (1958). Subject to exceptions not relevant here, the Act
requires an employer to provide its employees’ representative
with notice and an opportunity to bargain before instituting
changes in any matter which constitutes a mandatory bargain-
ing subject. NLRB v. Katz, 369 U.S. 736 (1962). Alteration of
existing terms and conditions of employment without prior
discussion with its employees’ bargaining representative is a
“circumvention of the duty to negotiate which frustrates the
objectives of Section 8(a)(5) much as does a flat refusal.” Katz,
supra at 743. In Daily News of Los Angeles, 315 NLRB 1236,
1238 (1994), the Board cited NLRB v. Dothan Eagle, 434 F.2d
93, 98 (5th Cir. 1970), as setting forth a standard for whether an
unlawful change has been implemented which

[N]either distinguishes among the various terms and con-
ditions of employment on which an employer takes unilat-
eral action nor does it discriminate on the basis of the na-
ture of a particular unilateral act. It simply determines
whether a change in any term and condition of employ-
ment has been effectuated, without first bargaining to im-
passe or agreement, and condemns the conduct if it has.

Matching 401(k) fund contributions constitute a term and
condition of employment. Britt Metal Processing, 322 NLRB
421 (1996). If, as here, an employer has made a “particular
benefit part of the established wage or compensation system,
then [the employer] is not at liberty unilaterally to change th[e]
benefit either for better or worse during . . . the period of col-
lective bargaining.” Dothan Eagle, supra at 98; Daily News,
supra at 1238.
The Respondent asserts that its decision to freeze the wages
and matching 401(k) fund contributions of the bargaining unit
employees was made before the advent of the Union, and the
decision was merely implemented in January 2002. In order to
prevail on this matter the Respondent must prove that its deci-
sion was made before November 29, 2001, the election date.
Kirkpatrick Electric Co., 314 NLRB 1047, 1049 (1994). To
this end the Respondent presented Dennis Weiss, its chief ex-
ecutive officer.
Weiss states that as a result of merger discussions with Mar-
shal REMC, on or about October 12, 2000, he knew that the
Respondent’s linemen were paid approximately $2 an hour more
than the Marshal REMC linemen, who were unionized. Weiss
thought this pay disparity would be a problem with a merger.
Weiss states that almost a year later, October 10, 2001, he de-
cided that the answer to this problem was to freeze the wages of
the outside employees (outside employee is the industry term for
the employees in the appropriate bargaining unit). Also on Octo-
ber 10, Weiss presented this problem to his staff. Weiss admitted
that he did not announce his decision when he presented the
problem. He stated that his preferred method of working with his
staff is to give them information, so as to allow them to arrive at
a decision independently, rather than him dictating a decision.
He explained his lack of candor by stating his belief that when
employees take part in a decision (or apparently are led to believe
that they are part of the decision making process) they support it
more fully (Tr. 231). Be that as it may, there is no evidence that
his staff ever arrived at any decision regarding the wage dispar-
ity. Weiss further admitted that he told no one of his decision,
until he presented his wage proposals to the board of directors,
and that there is no documentary evidence of when he made the
decision (Tr. 29, 236).
Weiss stated that he made his wage and benefit proposals to
the board of directors on November 12, 2001. Although he
recommended a 3-percent wage increase for all hourly non-
bargaining unit employees, the Board approved a 2.5-percent
increase in wages and a one-half percent increase in the Re-
spondent’s 401(k) matching contribution (GC Exh. 4). If Weiss
is to be believed both his decision to freeze the wages of the
bargaining unit employees and the board of directors adoption
of his decision both occurred before the November 29 election
date, and thus before the Respondent had a duty to bargain with
the Union.
a. Credibility
This case turns on Weiss’ credibility. I have closely ob-
served his testimonial demeanor and find that he does not ap-
pear to be a candid and truthful witness. In addition to his de-
meanor his testimony contains inaccurate and inconsistent
statements which further demonstrate his apparent lack of can-
dor. Thus, Weiss initially states that at the October 10 staff
meeting he provided his staff with a summary page entitled
“Manager’s Survey Results” (R. Exh. 7) in addition to the
sheets of the Statewide Manager’s Association survey. Al-
though Weiss admits that he did not know the exact day that the
summary page was prepared, he unequivocally states that it was
before the October 10 staff meeting. He further declares that it
was “at this point,” that he knew that he “was going to freeze
the wages” of the outside employees (Tr. 187).
However, after questioning by counsel for the General Coun-
sel and repeating, again, that he gave the summary to his staff
on October 10, Weiss admitted that it could not have been pre-
pared on that date and that it must have been prepared after the
meeting. This admission was garnered after counsel for the
General Counsel established that the document had two col-
umns, one headed “Kankakee Valley’s Benefit” and the other,
“Kankakee Valley’s Benefit (union).” Weiss, after initially
denying knowledge of why there was a “union” column, later
explained that the “0.00%” in the union column and the
“2.50%” in the other column represented the 2002 average
wage increases that he had proposed to the Board. Counsel for
the General Counsel then pointed out that the “2.50%” amount
was the wage increase that the board approved, but that Weiss
had proposed a 3-percent increase. After being confronted by
these obvious inconsistencies Weiss was forced to recant his
testimony. He admitted that he had no idea when the document
was prepared, but that it could not have been prepared before
the October 10 staff meeting. He also admitted that the sum-
mary was not, and could not, have been prepared in anticipation
of presenting it to the board of directors. (Tr. 225–230.)
Counsel for the General Counsel also questions Weiss’ credi-
bility concerning the date when he allegedly submitted his wage
recommendations to the board of directors for fiscal year 2002.
Counsel for the General Counsel argues in brief that the “Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 910
spondent’s evidence regarding this matter was inconsistent, and
should be treated with great suspicion.” Weiss stated that it was
at the November 12 board of directors meeting that he presented
his budget recommendations for fiscal year 2002 (GC Exh. 4
2002 wage adjustment). He recommended a 3-percent wage
increase for “those employees not utilizing a bargaining unit on
01–01–2002.” The minutes of the board meeting indicate that
the Board approved a 2.5-percent wage increase, a one-half per-
cent increase in the matching 401(k) contribution, and a paid
holiday after Thanksgiving for nonbargaining unit employees.
The minutes further state that wages and benefits for the bargain-
ing unit employees will be negotiated in a contract.
Weiss, in a tortured explanation, said that because the
Respondent was in the midst of a representation election he
could not “at this meeting” state that he was going to freeze the
bargaining unit employees’ wages, as he had allegedly decided
to do. Weiss admits that he reviewed the minutes of the
meeting, and thus he had to know that they contained at least
one falsehood. According to Weiss’ version, unlike what is
written in the minutes, wages and benefits would not be
negotiated because he had already unilaterally decided that the
wages would be frozen. He submits that believed that it was
necessary to freeze the bargaining unit employees’ wages in
order to close a wage gap with another employers employees,
which would only be of significance should the employers ever
merge. Even if this version was believable, Weiss never
explained how denying the bargaining unit employees a paid
holiday would in any way close the wage gap.
Counsel for the General Counsel also points to a memo that
was inserted in the employees pay envelopes on January 4,
2002, as being inconsistent with Weiss’ testimony regarding the
date of the board meeting. The memo states that the wage and
benefit increases were approved at the December 2001 board
meeting (GC Exh. 3). When confronted with the memo Weiss
merely said that he believed that his assistant had made a mis-
take. His statement was not corroborated. Weiss also changed
his testimony overnight on this subject. In response to counsel
for the General Counsel’s question at the beginning of the trial,
Weiss appeared unsure of whether the meeting when the board
of directors approved the wage increases occurred in November
or December. He attributed his uncertainty to the fact that
sometimes he presented the wage increase to the board in No-
vember and sometimes in December (Tr. 27). Not 24 hours
later, also in response to a question from the counsel for the
General Counsel, all doubt was removed, and Weiss states that
“every year since I’ve been CEO (4 years), it (the wages) are
addressed in November.”
Notwithstanding counsel for the General Counsel’s concern
regarding the date of the board of directors meeting, the date is
not crucial. Regardless of when the meeting occurred the min-
utes do not lend credence to Weiss’ statements that he had pre-
viously decided to freeze the wages of the bargaining unit em-
ployees because of a pending merger. The minutes state the
opposite, that the wages and benefits for the bargaining unit
employees would be negotiated. The reason advanced by the
Respondent for not granting the increases to the bargaining unit
employees, in a letter to the Union dated December 20, was “so
as not to commit an Unfair Labor Practice.” This reason was
reiterated by Weiss during a January 2002 meeting with em-
ployees. All employee witnesses credibly testified that Weiss
said that he did not grant them a wage increase because he “did
not want to commit an unfair labor practice.” Weiss did not
refute their testimony.
b. Conclusion
Based on the foregoing, I find that the Respondent has failed
to prove that it had no duty to either continue its established
practice of making annual wage and benefit adjustments, or to
notify and provide the Union with an opportunity to bargain
about those mandatory subjects. By refusing to grant annual
wage increases, biannual wage step increases, and an increase
in matching 401(k) contributions to bargaining unit employees,
the Respondent has violated Section 8(a)(1) and (5) of the Act.
2. The 8(a)(3) allegation
Counsel for the General Counsel argues that the Respondent
withheld the annual increases from its represented employee’s in
order to punish them for selecting a union as their representative.
Section 8(a)(3) prohibits employer “discrimination [against
employees] in regard to hire or tenure or any term or condition
of employment to encourage or discourage membership in any
labor organization.” The methodology for determining dis-
criminatory motivation is set forth in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). Under Wright Line, the General Counsel
has the initial burden to persuade that antiunion sentiment was
a substantial or motivating factor in the employer’s action. To
sustain the burden, the General Counsel must show that the
employees were engaged in protected activity, that the em-
ployer was aware of the activity, and that the activity was a
substantial or motivating reason for the employer’s action.
Motive may be demonstrated by circumstantial or direct evi-
dence and is a factual issue, which the Board’s expertise is
peculiarly suited to determine. Proof of the protected activity,
employer knowledge, and animus toward the activity supports
an inference that the employees’ protected conduct was a moti-
vating factor in the employer’s action. The burden of persua-
sion then shifts to the employer to prove that it would have
taken the same action even in the absence of the protected ac-
tivity. Manno Electric, 321 NLRB 278, 280 fn. 12 (1996);
Wright Line, supra at 1089. The employer may rebut the Gen-
eral Counsel’s case by proving that animus played no part in its
actions or, by establishing as an affirmative defense, that it
would have taken the same action even in the absence of the
employee’s protected conduct. The employer cannot simply
present a legitimate reason for its actions but must persuade by
a preponderance of the evidence that the same action would
have taken place even in the absence of the protected conduct.
Counsel for the General Counsel submits that the 8(a)(5) vio-
lation establishes animus sufficient to serve as a predicate for
finding a violation of Section 8(a)(3), Asarco, Inc., 316 NLRB
636, 643 (1995). Additionally, she cites to the credible testi-
mony of employee Scott P. Sikorau. He testified that shortly
before the election Weiss, at a meeting with the bargaining unit
employees, was asked by an employee that if the Union was not
voted in could the employees negotiate with him. Weiss re-
KANKAKEE VALLEY RURAL ELECTRIC MEMBERSHIP CORP. 911
sponded that he had a “sweet package” for them, but telling
them about it would be an unfair labor practice. Weiss’ testi-
mony is somewhat different. He testified that an employee at
the meeting asked him if the employees could form a commit-
tee to bargain over wages and benefits. Weiss replied that he
could not answer that question but if it had been asked before
the employees had signed the authorization cards, they would
have liked his answer. Regardless of which version is most
accurate the impact on the employees is the same—that their
wages and benefits would be better without the presence of the
Union. Even without that statement “[t]iming alone may sug-
gest anti-union animus as a motivating factor in an employer’s
action.” Masland Industries, 311 NLRB 184, 197 (1993), quot-
ing NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir.
1984), and the timing in this case warrants the inference.
I have discredited the reason advanced by the Respondent for
not granting the bargaining unit employees their annual wage
and benefit increases. Moreover, having closely observed the
testimonial demeanor of the Respondent’s chief executive offi-
cer I find not only that his testimony appears incredible but that
the truth is the opposite of his story. NLRB v. Walton Mfg. Co.,
369 U.S. 404, 408 (1962). Accordingly, I find that the reason
asserted by the Respondent for its conduct was not relied upon
and is a pretext to hide the actual reason which is, as argued by
the counsel for the General Counsel, to punish the bargaining
unit employees for engaging in protective concerted activity.
CONCLUSION
I find that the counsel for the General Counsel has met the
initial burden under Wright Line, supra. I further find that the
Respondent has failed to establish that its action would have
taken place in the absence of the employee’s protective activity.
I find the reason offered by the Respondent for its actions is a
pretext and that the real reason is to discourage employees from
engaging in protected activity. Accordingly, I find that the
Respondent has violated Section 8(a)(1) and (3) of the Act as
alleged in the complaint.
CONCLUSIONS OF LAW
1. Kankakee Valley Rural Electric Membership Corp. is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local
1393, AFL–CIO–CLC is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All full-time and regular part-time lineman, crew leaders,
groundmen, operators, apprentices and tree trimmers employed
by the Employer at its Wanatah, Indiana facility; BUT
EXCLUDING all office clerical employees, all line coordina-
tors, all professional employees, and all guards and supervisors
as defined in the Act and all other employees, constitute a unit
appropriate for collective bargaining within the meaning of
Section 2(5) of the Act.
4. Since December 7, 2001, the Union has been and is the
exclusive collective-bargaining representative of the Respon-
dent’s employees in the unit described above.
5. The Respondent has violated Section 8(a)(1) and (5) of
the Act by engaging in the following conduct.
(a) Since January 1, 2002, failing and refusing to grant an-
nual wage increases to employees in the unit.
(b) Since January 1, 2002, failing and refusing to grant bian-
nual wage increases to apprentice linemen and groundmen who
are employees in the unit.
(c) Since January 1, 2002, failing and refusing to grant
matching 401(k) retirement plan contributions to employees in
the unit.
6. The Respondent has violated Section 8(a)(1) and (3) of
the Act by discriminatorily failing and refusing to grant annual
and biannual wage increases and matching 401(k) retirement
plan contributions to employees in the unit which were granted
to nonunit employees, in order to discourage their membership
in the Union.
7. The foregoing unfair labor practices constitute unfair la-
bor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent has unilaterally and discriminatorily failed
and refused to continue its established practice of granting em-
ployees annual and biannual wage increases and matching
401(k) retirement plan contributions to employees in the unit,
accordingly, I recommend that the Respondent make whole the
unit employees for the monetary loss they suffered as a result of
the Respondent’s unlawful conduct. The amounts due the em-
ployees are to be paid with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). Any additional
amounts the Respondent must pay into the 401(k) retirement
plans shall be determined in the manner set forth in Merry-
weather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
The General Counsel requests that the certification year be ex-
tended for 1 year from the date that the Respondent’s unlawful
conduct has been fully remedied. The General Counsel seeks a
remedy consistent with Mar-Jac Poultry Co., 136 NLRB 785
(1962), where the Board adopted the policy that a newly certified
Union is entitled to 1 year of actual bargaining following the
certification without outside interference such as a rival petition
or another election. The Board held that in computing that 1 year
period it would toll periods of time when the employer had re-
fused to bargain. Here the Respondent has refused to grant, or
bargain about, the bargaining unit employees’ annual and bian-
nual wage increases and matching 401(k) retirement plan contri-
butions since December 20, 2001, almost immediately after the
certification of the Union. Although the record indicates that the
parties began bargaining in February 2002, they have agreed to
defer negotiations on economic items until all noneconomic
items have been settled. In essence the Respondent, by its unlaw-
ful conduct, has deprived its employees of the effective services
of their selected bargaining agent, at least regarding wages and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912
benefits, since December 20, 2001. To place the Respondent and
the Union in as nearly the same situation as possible to that which
existed before December 20, 2001, the initial year of certification
shall be construed as beginning on the date that the Respondent
fully remedies its unfair labor practices. See Bierl Supply Co.,
179 NLRB 741 (1969).
[Recommended Order omitted from publication.]