Liberty Telephone & Communication, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1973

204 N.L.R.B. 317 (N.L.R.B. 1973)

LIBERTY TELEPHONE
Liberty Telephone & Communications , Inc., and Cen-
tury Telephone Enterprises , Inc. and Communica-
tions Workers of America , AFL-CIO. Case
26-CA-4513
June 20, 1973
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY , AND PENELLO
On March 14, 1973, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondents
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order only to the extent con-
sistent herewith.'
The Administrative Law Judge concluded that Re-
spondents violated Section 8(a)(1) of the Act by the
withholding of the April 8, 1972,2 wage increase from
the unit employees when considered together with the
statement of one of Respondents' supervisors that the
employees were not getting their wage increases be-
cause of their union activity. However, he also con-
cluded that Respondents did not violate Section
8(a)(1), 8(a)(3), or 8(a)(5) by unilaterally withholding
a promised July 1 increase after the Union was certi-
fied. We disagree with the latter finding.
As the Administrative Law Judge found, the facts
are largely undisputed and based on uncontradicted
testimony and documentary evidence. Respondent
Liberty Telephone & Communications, Inc., herein
called Liberty, is one of several operating subsidiaries
of Respondent Century Telephone Enterprises, Inc.,
herein called Century, whose labor relations policies
are directly controlled by Century. Century has a
longstanding policy and practice of granting pay in-
creases twice annually, one in January, and again in
July, to employees of all operating subsidiaries under
Century's direct control. In keeping with its practice
of adjusting wages twice annually, Century in Decem-
i Member Kennedy would affirm the finding and rationale of the Adminis-
trative Law Judge that Respondent did not violate the Act by its cancellation
of the July 1, 1972, increase. See also his dissent in United Aircraft Corpora-
tion, Hamilton Standard Division (Boron Filament Plant), 199 NLRB No 68
2
All dates hereinafter are in 1972.
317
ber of 1971 filed a request with the Internal Revenue
Service seeking approval for two pay increases during
calendar year 1972, one to become effective January
1 and the other to become effective July 1, At about
this same time, it announced to employees employed
at those operating subsidiaries under its control, in-
cluding Liberty's employees, its plans to increase wag-
es on January 1 and again on July 1 subject to Internal
Revenue approval. The January increase was made
effective for all the employees, including those at Li-
berty.
On March 17, the Union filed a petition for certifi-
cation of the "traffic department employees" at Liber-
ty. On April 4, the parties entered into a Stipulation
for Certification Upon Consent Election. Effective
April 8, Century granted pay increases to all employ-
ees employed at operating subsidiaries whose wage
policies were controlled by Century except for the
unit employees at Liberty. As noted previously, the
withholding of this increase from the unit employees
at Liberty was held to be illegal by the Administrative
Law Judge. A Board election was held on April 25.
The Union won and was certified on May 3. About
July 1, Century put into effect another wage increase
for employees at its operating subsidiaries, including
nonunit employees at Liberty, but did not put the
increase into effect for Liberty unit employees. It is
conceded that but for the Union's certification these
latter employees would have been given increases.
The Administrative Law Judge based his conclu-
sion that Respondents did not violate the Act by can-
celing the July 1 wage increase on the premise that "a
promise of a future increase, and its ultimate imple-
mentation, as in this case, as to non-bargaining unit
employees, does not make the increase an established
condition of employment for the employees who have
selected a union as their bargaining representative."
Contrary to the Administrative Law Judge, logic
and relevant authority decree that the definition of
"condition of employment" includes not only what
the employer has already granted, but also what he
"proposes to grant." 3 The terms and conditions of
employment in a labor contract are fixed not by rigid
formulas or stipulations but by the relationship be-
tween the employer and the employees. It is the nor-
mal foreseeable expectations arising out of the
relationship, including the expected weekly wage, the
usual promotion policy, anticipated wage increases,
customary bonuses and vacations, and other an-
nounced or expected benefits, which constitute the
terms and conditions of employment. Hence in de-
termining whether a particular matter or program is
3 Armstrong Cork Company v N L R B, 211 F 2d 843, 847 (C A 5), United
Aircraft Corporation, Hamilton Standard Division (Boron Filament Plant), 199
NLRB No 68
204 NLRB No. 54
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a term and condition of employment which is subject
to collective bargaining, the Board and courts have
properly considered whether the program is a reason-
able expectancy of the employment relationship, i.e.,
whether the program in fact acted as an inducement
to employees to accept or continue employment.
Thus, in a quite similar case the United States
Court of Appeals for the Fifth Circuit, in considering
whether an employer's refusal to grant an announced
wage increase after the union's certification was viola-
tive of the Act, even though the increase was subject
to Wage Stabilization Board approval, stated in Arm-
strong Cork:
Good faith compliance with Section 8(a)(5)
and (1) of the Act presupposes that an employer
will not alter existing "conditions of employ-
ment" without first consulting the exclusive bar-
gaining representative selected by his employees,
and granting it an opportunity to negotiate on
any proposed changes. [Citations omitted.] Here,
we think petitioner's action in cancelling the pro-
posed wage increase and granting merit increases
affecting its mechanical employees, without con-
sulting their union as requested, constituted uni-
lateral action which naturally tended to
undermine the authority of their certified bar-
gaining representative, and violated the above
sections of the Act. [Citations omitted.]
We regard as fundamentally unsound
petitioner's argument that it was, in effect, re-
quired to cancel the wage increases to its me-
chanical employees, and continue its previous
practice of granting them merit increases in order
to comply with the union' s insistence that it make
no change in "conditions of employment." In
view of petitioner's prior announcement of a general
wage increase, even though it was subject to W. S. B.
approval, we think its unilateral action in withdraw-
ing the increase insofar as applicable to its union
employees after the union 's certification was equiva-
lent to changing "conditions of employment", for
the definition of the quoted phrase includes not only
"what the employer has already granted"; but also
what he `proposes to grant." [Emphasis supplied.
Citations omitted.] 4
May Department Stores Co. v. N. L. R. B. 5 also sup-
ports this view. The employer there, without consult-
ing the certified representative of some of its
employees, announced that it had petitioned the War
Labor Board for a wage increase for all its employees.
Significantly, the Supreme Court found that the very
announcement of the wage increase constituted a
4 Armstrong Cork, supra, 847
5 326 U. S 376 (1946)
change in the existing conditions of employment, war-
ranting a finding that such conduct on the part of the
employer was a disparagement of the bargaining pro-
cess . The Court stated: "The fact that the application
to the War Labor Board was not the actual increase
of wages but a necessary preliminary does not make
unilateral action, accompanied by publication of the
step taken to the employees, any the less objectiona-
ble." 6 Similarly, the Respondents' action here in an-
nouncing the wage increase, though subject to
Internal Revenue Service approval, created a reason-
able expectation of an increase to take place upon a
contingency. The announcement in that sense effect-
ed a change in existing conditions of employment. By
the same token, the subsequent withdrawal of the an-
nounced increase as it applied to the unit employees
frustrated as to them the reasonable expectation
which resulted from the prior announcement. The
withdrawal of the expected increase thus changed
their conditions of employment to those which had
existed before the announcement had been made and
the expectation created.
The Administrative Law Judge's view that any
other course than that taken by Respondents would
have subjected them to unfair labor practices is in
error. No violations of the Act can normally result
where an employer in good faith consults the bargain-
ing representative before taking action on such mat-
ters, even though a bona fide impasse in negotiations
subsequently renders unilateral action essential.'
It is clear, therefore, that under the principles just
discussed, the cancellation of the wage increase to the
unit employees after they had selected the Union as
their exclusive bargaining representative without con-
sulting the Union or affording it an opportunity to
negotiate constituted a change in their working condi-
tions. By effecting such change without prior consul-
tation with the certified bargaining representative of
the employees, Respondents violated Section 8(a)(5)
of the Act and also interfered with the employees'
right to have their representative consulted about
changes in their conditions of employment in viola-
tion of Section 8(a)(1) of the Act. By their conduct
Respondents additionally discriminated in regard to
the employees' terms and conditions of employment,
thereby discouraging membership in the Union in vi-
olation of Section 8(a)(3) of the Act. Accordingly, we
shall order that Respondents cease and desist from
such conduct and make the bargaining unit employ-
ees whole by paying the employees backpay in the
6 326 U S 376 at 384
7 N L R B v Crompton-Highland Mills, Inc, 337 U S. 217 (1949), 224-
225, N L R B v Almeida Buss Lines, Inc, 333 F 2d 729 (C.A 1, 1964),
NLRB v Tex-Tar, Inc, 318 F.2d 472 (C A 5), N L R B v Brandley Wash-
fountain Co, 192 F 2d 144 (C A 7, 1951), N L R B v Landis Tool Company,
193 F 2d 279 (C A. 3, 1952)
LIBERTY TELEPHONE
amount of the wage increase given their nonbargain-
ing unit employees on about July 1, 1972, for the
period extending from July 1, 1972, to September 14,
1972, with interest thereon at the rate of 6 percent per
annum in the manner prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716.8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondents, Li-
berty Telephone & Communications, Inc., and
Century Telephone Enterprises, Inc., Hardy, Arkan-
sas, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Withholding scheduled April 8 and July 1,
1972, wage increases and informing employees that
the April 8 wage increases were being withheld be-
cause of the employees' union activities.
(b) Refusing to bargain collectively with Commu-
nications Workers of America, AFL-CIO, by unilat-
erally changing conditions of employment in
withholding the scheduled July 1, 1972, wage in-
crease.
(c) Discouraging membership in Communications
Workers of America, AFL-CIO, or any other labor
organization of its employees, by discriminating in
regard to their hire or tenure of employment or any
term or condition of employment by withholding the
scheduled July 1, 1972, wage increase.
(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Com-
munications Workers of America AFL-CIO, as the
exclusive representative of all employees in the appro-
priate unit, with respect to rates of pay, wages, hours
of employment, or other conditions of employment
and embody any understanding reached in a signed
agreement.
(b) Make whole all employees employed in the ap-
propriate unit whose July 1, 1972, wage increases were
withheld until September 14, 1972, in the manner pre-
scribed in this Decision.
(c) Preserve and, upon request, make available to
the National Labor Relations Board, or its agents, for
examination and copying, all payroll records, social
security records, timecards, personnel records and re-
ports, and all other records relevant and necessary for
a determination of the amounts of delayed wage pay-
ments and interest thereon under the terms of this
319
Order.
(d) Post at its Hardy, Arkansas, plant copies of the
attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director
for Region 26, after being duly signed by
Respondent's authorized representative, shall be post-
ed by them immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps Respondents have taken to comply here-
with.
8 On October 5, the Respondents agreed to pay the unit employees the
war increases retroactive to September 14.
In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
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
WE WILL NOT withhold wage increases from any
employees because of their union activities and
inform them of that reason for withholding the
increases.
WE WILL NOT refuse to bargain collectively with
Communications Workers of America, AFL-
CIO, by unilaterally changing conditions of em-
ployment in withholding the scheduled wage in-
crease.
WE WILL NOT discourage membership in Com-
munications Workers of America, AFL-CIO, or
any other labor organization, by discriminating
to regard to hire or tenure of employment or any
other term or condition of employment by with-
holding the scheduled wage increase.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in their right
to join or assist the above Union, or other union.
WE WILL, upon request, bargain collectively
with Communications Workers of America,
AFL-CIO, as the exclusive representative of all
employees in the appropriate unit with respect to
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rates of pay, wages, hours of employment, or
other conditions of employment and embody
any understanding reached in a signed agree-
ment.
WE WILL make whole all employees employed
in the appropriate unit whose July 1, 1972, in-
creases were withheld until September 14, 1972,
with interest at 6 percent per annum.
LIBERTY TELEPHONE &
COMMUNICATIONS, INC., AND
CENTURY TELEPHONE
ENTERPRISES, INC.
(Employer)
Dated By
(itepresentative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Clifford Davis Federal Building,
Room 746, 167 North Main Street, Memphis, Tennes-
see 38103, Telephone 901-534-3161.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES. Administrative Law Judge: This case
was heard at Ash Flat, Arkansas, on January 18, 1973,
based on charges filed October 6 and November 16, 1972,
and a complaint issued on November 24, 1972, alleging that
Respondents violated Section 8(a)(1) and (3) of the Act by
withholding wage increases about April 8, 1972, from cer-
tain employees because of their union activities, and Section
8(a)(1), and (3), and (5) of the Act by withholding wage
increases about July 1, 1972, from certain employees be-
cause they had selected the Union as their bargaining repre-
sentative . The complaint was amended at the hearing to
allege that Respondents violated Section 8(a)(1) by state-
ments to employees of one of Liberty's supervisors , Louise
Doengi. Respondents deny any violations of the Act. The
General Counsel and Respondents have filed briefs.
Upon the entire record in the case,' including my obser-
vation of the witnesses , I make the following:
1 General Counsel's unopposed motion to correct the transcript is hereby
granted.
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYERS AND
THE LABOR ORGANIZATION INVOLVED
Respondent Liberty, a corporation with its principal of-
fice and place of business at Hardy, Arkansas, is engaged
in providing telephone services to the public. It is a wholly
owned subsidiary of Respondent Century, which is a corpo-
ration with its principal office at Monroe, Louisiana, and
which is a holding company for a number of operating
companies, including Liberty. During the 12 months pre-
ceding the issuance of the complaint, both Liberty and Cen-
tury had gross revenue in excess of $500,000 from their
telephone services, and each purchased products valued in
excess of $50,000, from points outside their respective loca-
tions. I find that each Respondent is an employer within the
meaning of Section 2(6) and (7) of the Act. I further find,
rejecting Respondents' contrary contention, that they con-
stitute a single employer for purposes of this proceeding and
that Century is a proper Respondent in this case, for the
testimony of Clark M. Williams shows that he is president
of both companies, and that Century controls the labor
relations of its subsidiaries? Furthermore, it is clear from
the testimony that Century determined which wage increas-
es to put into effect at Liberty, and which to withhold.
Furthermore, Colonel Author Carroll, although an officer
of Century, and not of Liberty participated in the bargain-
ing sessions concerning the unit of Liberty employees.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II THE UNFAIR LABOR PRACTICES
A. Introduction-The Issues
The principal issues in this case are whether Respondents
violated the Act by refraining from granting wage increases
to certain employees of Liberty on two occasions, the first,
about April 8, during the period that an election was pend-
ing for the unit comprised of these employees, and the sec-
ond, about July 1, after the Union had been certified as the
bargaining representative of the employees in that unit.
Also at issue is whether Respondents violated Section
8(a)(1) by certain statements of Liberty Supervisor Louise
Doengi to employees relative to their failure to receive the
April 8 increase.
B. The Facts
The facts are largely undisputed, and based on uncon-
tradicted testimony and documentary evidence. They begin
in December 1971, when employees of Liberty and of a
large number of other subsidiaries of Century were told-by
way of a notice on the bulletin board in the case of Liberty
employees-of plans to increase wages on January 1, 1972,
2 On examination by his own counsel, Williams was asked whether the
approach that Century takes was "one of control or guidance9" He re-
sponded, "I should have said guidance Century guides and gives advice and
counsel to the various subsidiaries "
LIBERTY TELEPHONE
and again July 1, 1972.3 The January 1972 wage increase
was made effective for all the employees, including those at
Liberty. On March 17, the Union filed a petition for certifi-
cation of the "traffic department employees" of Liberty. On
April 4, the parties signed a stipulation for certification
upon consent election. About April 8, Century put into
effect a wage increase for employees of many of its subsid-
iaries, including employees at Liberty not embraced by the
Union's petition, but not including those employees in the
unit petitioned for. These increases, as well as the failure to
give increases to the unit employees, were authorized by
Clark Williams, president of both Century and Liberty-in
his capacity as president of Century. But for the pending
question concerning representation, the increases would
have been given to Liberty unit employees.4
At about the same time, all employees received an
"Employee's Handbook," put out by Century. Employee
Edwards received hers from supervisor Louise Doengi, who
told her, at the same time, that "we would not receive our
wage raise because of our union activity." Employee Dessie
Farley also received the handbook, about April 10, from
Doengi. Later the same day, according to Fraley, Harland
Hames called Fraley's attention to the portion of the hand-
book concerning wages, and told Fraley that the proposed
wages had been approved, but that he "understood they
couldn't give us the wages because of the union activities."
Hames did not specifically recall any conversation with
Fraley concerning withholding of the increase. He did testi-
fy to having explained to almost all employees at Liberty
that they should disregard the pay scale in the handbook
because of legal problems which had to be determined.
In view of the instructions and advice from counsel and
high company officials, it seems unlikely to me that Hames
would have said "because of union activities" in so many
words. I infer that what he said was "the union petition" or
words to that effect, tying the withholding to the pending
election, the unresolved question concerning representa-
tion, rather than to employees' "union activities," in the
sense of their participation in organizing, soliciting, or sign-
ing cards. As Hames spoke to almost all employees at the
time about the withholding of the increase, his testimony as
to what he said generally operates as a denial of what Fraley
testified he said to her-and his "I don't recall" the specific
conversation with Fraley is not only understandable, but to
me demonstrates an honest refusal to give a flat "no," when
he had no specific recollection of having talked to Fraley at
all. The fact that neither Edwards nor Patricia Gist, the
other two employees called, attributed this kind of state-
ment to Hames also convinces me that he would not have
made it to anyone. I do not mean to suggest that Fraley was
in any sense deliberately falsifying-it is clear to me that she
gave her understanding of what Hames said-and to her
there was no difference between union election pending and
3 Employee Sherry Edwards testified credibly that shortly after January 1,
1972, Liberty Division Manager Harland Hames explained to her what she
would be making if the IRS approved a proposed wage increase , writing
down the figures on a slip of paper.
This was not only conceded by Respondents' counsel , it reflects the
advice given Respondents by counsel at the time, and is the principal basis
for their defense as to the April 8 failure to give the wage increases to the
Liberty employees.
321
union activities. In any event, and with this alleged state-
ment by Hames not specifically alleged as an independent
violation of Section 8(a)(1), I find no violation based on this
testimony of Fraley.
Patricia Gist testified credibly that Doengi told her, "the
last of March or first of April. I really don't know," S that
"we didn't get our wage increase because the red tape with
the union had to be settled first."
On April 25, the election was held. The Union won, and
was certified on May 3. effect another wage increase for
employees at many of its subsidiaries, including nonunit
employees at Liberty, but did not put the increase into effect
for Liberty unit employees. But for the Union's certifica-
tion, these latter employees would have been given increas-
es. No bargaining had yet commenced between Liberty and
the Union, for good and sufficient reasons.6 Subsequently,
about July 18, bargaining between the two began. The Gen-
eral Counsel specifically conceded that nothing about the
bargaining was either alleged to have been, or was, in "bad
faith." Although considerable testimony concerning the
bargaining sessions was adduced, for reasons that will be
apparent later, there is no reason to go into the substance
of those sessions. It suffices to say, for purposes of this
decision, that the subject of retroactivity of wage increases
was discussed extensively, with agreement ultimately mak-
ing the wage increases retroactive to September 14, 1972.
Bargaining ended on October 5, 1972.
Sherry Edwards testified credibly that Doengi told her, at
the time other employees received the July 1 increase, that
"we" (obviously the unit employees) did not receive them
because a contract was still being negotiated. Fraley testi-
fied that Doengi told her she "brought it all on myself" with
respect to the failure to get a pay increase, but, apart from
placing it after the April 25 election and before Labor Day,
could not place the time at all. I therefore attach no signifi-
cance to this alleged statement.
There was also evidence presented concerning Century's
attempts to get Pay Board or IRS approval for certain
"plans" concerning wage increases and the like, offered by
Respondent for the purpose of showing that the April 8
increase given nonunit employees at Liberty and other loca-
tions was not pursuant to a previous plan, but a new one.
I discuss this evidence, and its possible significance, hereaf-
ter.
C. Discussion and Conclusions
1. The "withholding" of the April 8
wage increase
The problem of employer conduct during an organizing
campaign , particularly during the period between filing of
a petition and the enduing election , with respect to whether
to take affirmative personnel actions as to wages and other
matters is a difficult one. Granting a wage increase during
that period may well be a violation of the Act . N.L.R.B. v.
Exchange Parts Company, 375 U . S. 405 , 409 (1964). With-
holding a wage increase may also violate the Act. McCor-
5 The context makes it clear this statement must have been made about
April 8, and I so find
6 There is no suggestion of any laxity by Liberty in not having met by then,
and so there is no need to go into the reasons therefor
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mick Longmeadow Stone Co., Inc., 158 NLRB 1237, 1241-
1243. Thus, an employer often acts virtually at his peril. In
two relatively recent cases , for example, Administrative
Law Judges had concluded that respondents did not violate
the Act by withholding wage increases , reasoning that giv-
ing the increases would have interfered with the employees
freedom of choice, and in both the Board reversed, conclud-
ing that the withholding was unlawful. Pacific Southwest
Airlines, 201 NLRB No. 81 (1973); The Gates Rubber Com-
pany, 182 NLRB 95 (1970). I do not think that the cases
establish an absolute "damned if you do and damned if you
don't" dilemma, although they verge upon it. Taking the
increases or lack of them standing alone , that is, without
either being utilized by the employer as a campaign weapon,
as a threat, or promise of benefit keyed to the union's at-
tempt to obtain exclusive representation among the employ-
ees, the principle that emerges seems fairly clear, although
its application still presents difficulties. Fairly stated, as I
see it , an employer is obligated to give any increase or
benefit previously decided upon, or any regular or normal
increase given regularly and periodically that would come
due during the critical period, but should not put into effect
any increase not already decided upon before the union
came on the scene . The more prudent course, the one least
likely to result in a violation, is to refrain from giving wage
increases during that period, for at the very least the Gener-
al Counsel would then have the burden of showing the
normalcy of the increase, or that it had been decided upon
prior to the advent of the union. In giving the increase, on
the other hand, the burden is essentially on the employer to
prove that it was normal, that it had been decided upon, and
was for practical purposes a fait accompli.
Viewed in isolation , then, the failure of Respondents to
give the Liberty employees a wage increase on April 8 would
not be a violation of the Act, for the General Counsel con-
ceded that the "promised" increases were for January 1,
1972, and July 1, 1972, not for April, 1972.
The situation here is more complex, however, for Century
authorized a wage increase in April for the employees of
many of its subsidiaries (not either represented by or being
organized by any union) as well as for those employees of
Liberty not in the unit awaiting the election. The General
Counsel argues that the Company was obligated to treat
these unit employees exactly the same as it treated all other
employees, so that not granting them the wage increases was
ipso facto violative of Section 8(a)(1). And Respondents con-
cede that these employees would have had the increase had
there been no pending election, but claim, as indeed their
counsel advised at the time, that giving the increase to them
would have violated the Act, and therefore not giving it
must be lawful. Again viewed in isolation, I think that Re-
spondents have the better of the argument. For it would not
appear to be the law that the pendency of an election in a
particular unit should stay the company's hand from taking
actions-bestowing benefits and giving wage increases-
with respect to employees in unorganized plants, or units.
Were this not so, a company could give a substantial wage
increase to employees in a unit about to have an election,
and perhaps demonstrate most effectively by so doing that
the employees did not need a union, as long as they gave the
same increase at the same time to unorganized employees.
In this case, however, we have a company supervisor,
Louis Doengi, telling some employees, in effect, that they
are not getting their wage increases because of their union
activity. There is no question in my mind that Century and
Liberty did not withhold the increases from the unit em-
ployees for the purpose of coercing those employees, or
affecting the election, but did so on advice of counsel, as
stated above. To the employees, however, hearing that other
employees right at Liberty were getting the increases, and
with some of them being told by Doengi that their failure
to get them was because of union activity, the impact is the
same if the management officials had the unlawful purpose.
This, as I read Board law, is sufficient to tip the scales
against Respondents as to the April 8 withholding of the
wage increase . Pacific Southwest Airlines, supra.
The vice in this case is thus not the failure to give the
increase , as such, but the combination of that failure, and
the granting of increases elsewhere, and the statements of
Supervisor Doengi. For, as I have indicated, absent any
statements by company officials or supervisors, I believe
granting the increase to the Liberty unit employees might
well have been unlawful. For these reasons, I conclude that
Respondent violated Section 8(a)(1) of the Act on or about
April 8.7
2. The withholding of the
July 1 increases
The July 1 situation is entirely different. By then, CWA
was the exclusive bargaining representative, having been
certified as such on May 3. Once an exclusive bargaining
representative has been selected, an employer cannot affir-
matively put into effect any increases (or decreases for that
matter); his duty is to bargain with the Union about all
terms and conditions of employment, not changing any of
them without bargaining in good faith with the Union. The
General Counsel apparently assumed that the July 1 in-
crease given to nonprofit employees, having been "prom-
ised," back in December 1971 to all employees, was an
existing condition of employment, and that Respondents,
by withholding it, were unilaterally changing conditions of
employment.'
The cases cited to me by the General Counsel do not
support his proposition. Without discussing them in any
detail, the distinguishing feature running through them is
the difference between "eliminating" an existing condition
of employment, or benefit, and not putting into effect a new
one. Thus, an employer paying a Christmas bonus each year
has established a condition of employment for its employees.
When a union becomes certified, that condition still exists
unless bargained away. But a promise of a future increase,
and its ultimate implementation, as in this case, as to non-
bargaining unit employees, does not make the increase an
established condition of employment for the employees who
7 I do not find any violation of Sec 8(a)(3) in the withholding, as Respon-
dents' motivation was not in any way discriminatory
8 Although, when asked whether Respondents could have given the in-
crease on July 1, before bargaining began, the General Counsel replied that
giving the increase on July I would have been unilateral action in violation
of Sec 8(a)(5)
LIBERTY TELEPHONE
have selected a union as their bargaining respresentative.
Indeed , the General Counsel is correct that Respondents,
by putting the increase into effect for the Liberty unit em-
ployees , would have violated Section 8 (a)(5). The selected
union , in bargaining , can seek any increase it wishes, and
can seek retroactivity of that increase back to any date it
wishes-and the company can, provided , of course , it bar-
gains in good faith , and that is conceded here , resist any
such demands . Ultimately , the contest may be one of eco-
nomic strength . The important thing is that the status quo
be maintained during bargaining , and the status quo here
was the wage rates being paid on the date the Union was
certified . Accordingly , I find that Respondents did not vio-
late Section 8(a)(5), (3 ), or (1) by failing to put into effect
for the Liberty unit employees the July 1 increase given
nonunit employees at Liberty and other subsidiaries of Cen-
tury.
CONCLUSIONS OF LAW
1. Respondents , by withholding wage increases about
April 8, 1972, from employees of Liberty , in the circum-
stances of this case , and by the statements of its supervisor
in connection therewith , have engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and Section 2 (6) and (7) of the Act.
2. Respondents have not violated the Act by withholding
wage increases from the employees of Liberty on or about
July 1, 1972.
THE REMEDY
323
I have found that the withholding of the April 8 wage
increases from the unit employees, when considered togeth-
er with the statements of Supervisor Doengi, constituted a
violation of Section 8(a)(l) of the Act. As discussed above,
however, I do not view the withholding, standing alone, as
violative of the Act. I believe, therefore, that the purpose of
the Act will be effectuated by a cease-and-desist order, and
the posting of an appropriate notice, and that it is not appro-
priate in this case to order that Respondents pay the April
8 increase to the affected employees. I come to this conclu-
sion because, as earlier explicated, I believe Respondents
were lawfully motivated in withholding the increase, and
that their view of the proper way to proceed at the time finds
support in the law. If I am correct that giving the Liberty
employees the April 8 increase would have been violative of
the Act, without more, it would be anomalous to order the
Respondents to pay that increase solely because one of its
supervisors statements, in conjunction with the failure to
give the increase, entailed a violation of Section 8(a)(1).
Indeed, in two of the cases cited above, Pacific Southwest
Airlines and Gates Rubber Co., the Board did not order
restoration of the withheld backpay, even though it found
that the withholding violated the Act, in both instances
reversing a contrary finding of an administrative law judge.
While no explanation appears for the failure to give that
remedy in those cases, and some others, as contrasted with
having given such a remedy in other quite similar cases, it
is at least apparent that a restoration remedy is not an
automatic concomitant of this kind of violation.
[Recommended Order omitted from publication.]