Hill-Rom Co., Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 351 (N.L.R.B. 1989)

HILL-ROM CO' 351
Hill-Rom Company, Inc. and Furniture & Casket
Workers Local Union No. 525, Upholsterers
International Union of North America, AFL-
CIO. Case 25-CA-16345
November 21, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On June 16, 1989, Administrative Law Judge
Nancy M Sherman issued the attached decision
The Respondent filed exceptions and a supporting
brief,' and the General Counsel filed a brief in sup-
port of the administrative law judge's decision
The National Labor Relations Board has delegat-
ed its authority in this procedmg to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
recommended Order In so doing, we note that
whatever differences existed between the final in-
spector and quality assurance technician classifica-
tions resulted from technological change and that
the job functions remained significantly unchanged
Accordingly, the new work title simply stood in
the shoes of the old work title in the bargaining
unit In these circumstances, the Respondent failed
to carry its burden of showing sufficient dissimilar-
ity to warrant the removal of the quality assurance
technicians from the bargaining unit See NLRB v
United Technologies Corp, 884 F 2d 1569 (2d Cir
1989)
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Hill-Rom
Company, Inc, Batesville, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
1 The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
Steve J Robles, Esq , for the General Counsel
Robert K Bellamy, Esq , of Indianapolis, Indiana, for the
Respondent
DECISION
STATEMENT OF THE CASE
NANCY M SHERMAN, Administrative Law Judge This
case was heard before me in Indianapolis, Indiana, on
December 16, 1988, pursuant to a charge filed on April
4, 1984, by Furniture & Casket Workers Local Union
297 NLRB No 53
No 525, Upholsterers International Union of North
Amenca, AFL-CIO (the Union) and a complaint issued
on February 10, 1987, and amended on July 8, 1988 The
complaint as amended alleges that Respondent Hill-Rom
Company, Inc. without the Union's agreement, modified
an appropriate unit (which was covered by a then-effec-
tive collective-bargaining agreement) by unilaterally re-
moving the classification of "technician", withdrew rec-
ognition from the Union as the representative of that
classification, and refused to apply the terms of that
agreement to the employees in that classification, all in
violation of Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act)
On the entire record, including the demeanor of the
witnesses, and after due consideration of the briefs filed
by counsel for the General Counsel (the General Coun-
sel) and Respondent, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is an Indiana corporation which maintains
its principal office and place of business in Batesville, In-
diana, where Respondent manufactures, sells, and distrib-
utes beds, furniture, and architectural products for the
health care industry In each of the calendar years 1983
through 1987, Respondent purchased and received at
that facility products, goods, and materials valued in
excess of $50,000 directly from points outside Indiana,
and sold and shipped, from that facility, products, goods,
and matenals valued in excess of $50,000 directly to
points outside Indiana I find that, as Respondent admits,
Respondent is engaged in commerce within the meaning
of the Act, and that assertion of jurisdiction over its op-
erations will effectuate the policies of the Act
The Union is a labor organization within the meaning
of the Act
H THE ALLEGED UNFAIR LABOR PRACTICES
A Background
In 1947, the Union was certified as the exclusive bar-
gaining representative of the following unit, which has
admittedly been appropriate at all relevant times
All production and maintenance employees at
Respondent's Batesville, Indiana facilities, BUT EX-
CLUDING all office clerical employees, all sales-
men, all truck drivers, all garage mechanics, all
watchmen, all engineers, all firemen, all carpenters,
all painters, all research department employees, and
all supervisory employees 1
Thereafter and at least until the December 1988 hear-
ing, Respondent and the Union were parties to a series of
collective-bargaining agreements, including an agreement
effective between May 27, 1983, and June 1, 1986 All of
'See Batesville Casket Co, 283 NLRB 795 (1987) Employees of Bates-
ville Corporation, a sister of Respondent; were included in the certifica-
tion and in subsequent collective-bargaining agreements, but are not in-
volved in the Instant case
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
these agreements included the following recognition
clause
The Company recognizes the Union as the sole and
exclusive representative for the purpose of collec-
tive bargaining, in respect to rates of pay, wages,
hours of work, and other working conditions, for
all its production and maintenance employees,
except for office and clerical employees, salesmen,
truck drivers, garage mechanics, watchmen, engi-
neers, firemen, carpenters, painters, research depart-
ment employees, and all supervisory employees
None of these agreements included a listing of what job
descriptions or job titles were covered by the contract
In 1961, Respondent established its first hospital-bed
manufacturing assembly line At this time, Respondent
created a new job classification entitled "final inspector"
Employees in this job classification were required to ex-
amine and test each bed prior to shipment to the end
customer Initially, and until late 1976, the final inspec-
tors reported to "engineering," and were not part of the
bargaining unit In late 1976, Respondent created a qual-
ity assurance department, decided that the final inspec-
tors should be part of this department, and unilaterally
decided to put the final inspector duties into the bargain-
ing unit because these positions had been transferred
from the engineering area to the manufacturing area The
Union did not ask Respondent to include the final inspec-
tion duties in the bargaining unit, nor did the Union
object to this decision No change in the final inspector
duties had occurred to support this inclusion
On December 1, 1976, Respondent changed the name
but not the duties of the final inspector classification, and
redesignated it as inspector 3 Respondent also created
an inspector 2 position which would perform inspections
of work in process and receiving, but not final inspec-
tions This type of inspection position had not existed
before, and Respondent unilaterally determined to place
it in the bargaining unit, where it has been ever since In
1979, Respondent created an inspector 4 position, which
designated those inspector 3s who work in Respondent's
architectural area rather than in Respondent's bed manu-
facturing area 2 The final inspector work, and inspectors
3 and 4, remained in the bargaining unit through April 1,
1984 During this period of time, the final inspectors'
duties did not significantly change Hereafter in this deci-
sion, inspectors 3 and 4 are sometimes referred to collec-
tively as final inspectors, and the work of both inspectors
3 and inspectors 4 is sometimes referred to as final in-
spection
B Events Leading to the Creation of the Job
Classification of Quality Assurance Technician
By letter dated December 30, 1983, to employee
Elmer Sawyer, the Union's president, David J Sunder-
man, who is Respondent's senior vice president of oper-
2 In the early 1980s, Respondent added two inspector 3 positions to
perform nonfinal side guard assembly Inspections These positions were
eliminated in 1986, and such separate nonfinal inspection is no longer per-
formed When still being performed, this work was done by employees in
the bargaining unit
ations, stated that Respondent was "considering certain
significant changes in its quality assurance program As a
representative of [Respondent's] production and mainte-
nance employees, we would like to arrange a meeting
with you at your earliest convenience to discuss these
plans" Such a meeting was held on February 20, 1984,
between Sawyer, Sunderman, Don Cummings (the
Union's vice president, and inferentially an employee),
Gerald Moeller (Respondent's director of human re-
sources), and Jerry Mike Perdue (Respondent's director
of reliability and quality assurance) Management gave
the union representatives a handout, and reviewed it
with them, which stated that Respondent was proposing
to create the job classification of "quality assurance test
technician" (QAT) The handout stated, inter aim, that
establishment of this new job classification would affect
the 11 unit employees presently in the inspector 3 classi-
fication and the 3 unit employees presently in the inspec-
tor 4 classification, and that employees with the new
QAT classification would not be in the bargaining unit
In addition, the handout stated that all of the 14 employ-
ees currently classified as inspectors 3 and 4 would be of-
fered the opportunity to try the QAT jobs, and that for a
period of 9 months individuals who accepted such jobs
but did not want to stay on them or failed at them would
be placed back into the bargaining unit Although stating
that Respondent's position was "well laid out," Union
President Sawyer asked what would happen to such em-
ployees if they failed at or wanted to leave the QAT job
after a year and a half Moeller said that Respondent
would do everything it could do at the time to put them
back into the unit, and that he would also consider ex-
tending the 9-month period specified in the handout
A second meeting, on March 5, was attended by the
same individuals, and also Union Business Agent Earl
Graves After Graves had been given a copy of the Feb-
ruary 20 handout, Sunderland stated that Respondent
wanted to establish the QAT job because the compara-
tively limited number of prospective buyers of Respond-
ent's products rendered Respondent's sales volume par-
ticularly vulnerable to quality-control problems, because
Respondent was experiencing significant competition
from its pnmary competitor, because Respondent had
been experiencing quality-control problems, and because
the technology of Respondent's products was getting
more sophisticated Respondent stated that the new QAT
position would have five functions, that one of these was
the inspection duties currently being done in the bargain-
ing unit, and that the other four involved working in the
QAT test engineering area, and supervising or analyzing
field returns, field repairs, and field audits 3 During this
or one of the other two meetings on the subject, the
Union stated that it had no objections to Respondent's
changing the inspectors' job duties to whatever was nec-
essary to meet its needs, and that Respondent would
merely have to reevaluate the job, and put it in the
proper grade, within the context of the contract Also
3 The statements described in the two sentences in the text immediately
preceding this footnote were also made, at least to some extent, during
the February 20 meeting Respondent's perceived need for quality im-
provement is also summarized in the handout
HILL-ROM CO

353
during one of these meetings, Quality Assurance Direc-
tor Perdue said that Respondent "could hire two techni-
cians with the skills and the training and leave the
inspector like they was, and do the additional duties, but
rather than do that [Respondent would] rather split it up
among the inspector 3's and 4's" At the March 5 meet-
ing, Respondent said that it would extend to 18 months
the period (originally 9 months) within which individuals
who "left the unit" but thereafter did not want to stay
on or failed at the QAT job would be placed back into
jobs which were admittedly in the bargaining unit Also,
in response to Sawyer's concern (expressed to Moeller
between the first and second meetings) about the loss of
opportunities for bargaining unit people because the jobs
which would be leaving the unit were the higher paying
jobs, Respondent said that in order to enable bargaining
Unit employees to prepare for thee and other jobs on the
technician ladder (a term explained below), Respondent
would expand to any business or technical associate
degree program a current tuition-refund program for
bargaining unit employees who took certain entry-level
courses At the end of that meeting, Respondent asked
the Union to "think about," and then give a response to,
what Moeller described as Respondent's proposal "to
take the people out of the unit, and to put them—not to
take the people out of the unit, but to take the work and
add it to other duties outside the unit"
On March 9, 1984, Union President Sawyer told Dar-
lene Hirt, Respondent's human resources administrator,
that if Respondent "moved [final inspectors] out of the
bargaining unit, we would fight it" Hirt asked why
Sawyer replied that his "people" would not agree to it
because "it was taking 12 higher paying jobs out of the
bargaining unit, which would be depriving the people in
the bargaining unit They would never have a chance to
bid on them "4
At the third and last meeting as to this matter, on
March 14, 1984, Business Agent Graves told Respondent
that he had spoken to counsel about Respondent's pro-
posal, and that the union representatives felt they could,
not support the change because if they did and an em-
ployee filed a charge against the Union, the charge could
lead to problems with the NLRB (see infra fn 23) In re-
sponse to the Union's expressed concern (during the
March 9 meeting) about Respondent's original proposal
that bargaining unit inspectors' job would be given to
QAT employees who wanted to return and would not be
posted for bid by unit employees, Respondent stated that
it would post such jobs and allow such QAT employees
to reenter the bargaining unit and to use their bidding
rights or their semonty to apply for positions Graves
said that he had "grave concerns about violating con-
tract language to protect non-bargaining unit people,"
and "felt positive" about this change
The Union never did agree to removing the jobs under
discussion from the bargaining unit
4 The bargaining agreement included a provision that vacancies would
be posted, and would be given to the senior bidder in the department
who had completed his probationary period and had the skill, ability
and capacity to do the job' The parties stipulated that this provision was
limited to filling bargaining unit vacancies and permitted only bargaining
unit employees to bid on them ..
C Respondent's Action in Establishing and Filling the
Quality Assurance Technician (QA T) Jobs5
During employee meetings in March 1984, manage-
ment advised the employees that it was going to remove
the inspector 3 and inspector 4 jobs out of the bargaining
unit, but that employees who accepted the QAT jobs
had a choice of resigning from or remaining members of
the Union 6 During one of these meetings, Company
Vice President Sunderman said that the jobs would
remain the same as the ones the inspectors were already
performing in the inspection booths, but the QATs
,, would also do some "lab work," go to hospitals to repair
beds, and do some minor computer programming
By letter to Union President Sawyer dated March 19,
1984, Sunderman, Perdue, and Moeller stated that Re-
spondent had "decided to implement our proposal to
promote the Quality Assurance Inspector III and IV to
salaried non-exempt [i e, covered by the Fair Labor
Standards Act, 29 U S C, Ch 8] status in our technician
ladder," a term discussed infra Moeller testified that Re-
spondent decided that QAT should be a nonbargaming
unit position instead of a bargaining unit position be-
cause
the added duties, which was approximately 25
percent of the new position, were duties that were
traditionally done by non-bargaining unit employ-
ees They were also more technical, and fit our
technician career ladder approximately nght in
the middle of the ladder as far as growth in the
ladder And it was important to our company to
utilize effectively the technical know-how of our
people And therefore, we wanted this knowledge
in that career ladder where it could be nurtured and
grow over the years
The other significant fact is that the 75 percent
that was currently in the unit was never certified in
the unit by NLRB the 75 percent was a job
that had been out of the bargaining unit from 1961
up until the time we put it in the bargaining unit in
1976 We unilaterally put it in the unit We felt
for those three reasons, that it was more appropriate
out of the unit than in the unit
The "technician ladder," which was set up about April
1983, consists of about 55 nonunit employees who are
listed in accordance with their respective salary-grade
levels All of them receive similar benefits, which in
some respects differ from the benefits received by bar-
gaining unit employees Perdue testified that Respondent
had developed the "technician ladder" to "give our em-
ployees the opportunity to Improve themselves relative
to their technological knowledge, and through such to
be able to move upwards in the ladder in order to im-
5 The job classification of quality assurance technician (QAT) is held
by some personnel who perform no final inspection work (see, e g, infra
fn 15) Unless otherwise stated, all references herein to "quality assur-
ance technician" or QAT refer to employees whose duties Include
final-inspection work
6 Cf Bel-Au Mart, 203 NLRB 339, 341 (1973), enfd 497 F 2d 322 (4th
Cir 1974) The 1983-1986 bargaining agreement does not require union
membership of anyone as a condition of employment
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prove not only their job duties but their economical
income" Some bargaining unit employees have moved
onto the "technician ladder" by transferring into nonunit
jobs Except for the Inspectors 3 and 4, the Union has
never claimed that any employees on the "technician
ladder" should be in the bargaining unit When a vacan-
cy exists in a job on the "technician ladder," the job is
posted and any of Respondent's employees, whether or
not they are in the bargaining unit, can sign the posting
for consideration to be placed on that job Perdue testi-
fied that although it would be unusual for a bargaining
unit employee to have the qualifications for a position
high on the "technician ladder," an applicant for such a
job would stand on his own merits whether he was a
bargaining unit employee or someone already on the
"technician ladder" just below the vacant position, and
that Respondent would not assume that probably the
latter applicant had the qualifications and the bargaining
unit employee did not However, Respondent's March
19, 1984 letter to Union President Sawyer announcing
Respondent's decision to "promote the Quality Assur-
ance Inspector III and IV to salaried non-exempt status
in our technician ladder," which letter was signed by
both Perdue and Moeller, stated, inter aim, "While we
must first look for replacements and additions to the
technician ladder from within the technician ladder our
obvious next place to look for people to fill these Q A
positions is from those employees left in the Q A depart-
ment in the bargaining unit"
Respondent had at all times adhered to its proposal, in
the handout which it first gave the Union on February
20, 1984, that all employees currently classified as inspec-
tors 3 and 4 would be offered the opportunity to try the
QAT job Of the approximately 14 employees so classi-
fied, about 12 applied for the QAT job, and 2 or 3 did
not The final inspectors who did not want to become
QATs were given an opportunity to bid on posted open
jobs in the quality assurance department in at least sub-
stantial accordance with the bargaining agreement 7
These employees remained in the bargaining unit, at least
one of them (Konkle) as an inspector 1, the probative
evidence fails to show how their new wage scale com-
pared with their wage scale as final inspectors (see infra
fn 24)
All 12 of the final inspectors who applied for the QAT
job were accepted effective April 4, 1984 As to the re-
maining four vacancies which existed at that time, Re-
spondent considered applications from incumbent em-
ployees, both inside and outside the unit 8 These appli-
cants were subjected to the same testing and interview
process which had been used in the selection of inspec-
tors 3 and inspectors 4, the QATs who had occupied
such jobs were not given the same test again Of the
three bargaining unit employees (all from the factory
floor) who applied for the QAT job, all were accepted
The fourth successful applicant came from a nonunit po-
7 The record suggests that this policy, which differed from Respond-
ent's initially projected plan, was adopted because the Union wanted the
contractual bidding procedure to be adhered to
8 The record fails to show whether anyone who did not already work
for Respondent was considered for these jobs
sition in design engineering The record fails to show the
number of unsuccessful applicants, if any
As of December 15, 1988, the day of the hearing, the
bargaining agreement covered about 780 employees of
Respondent and about 525 employees of Batesville
Casket (see supra fn 1) In April 1984, about 650 em-
ployees of Respondent had been in the bargaining unit
D The Arbitration Proceeding
The typewritten portion of the charge herein, which
employee Sawyer (the Union's president) filed on the
Union's behalf on April 16, 1984, alleged in its entirety
that Respondent had violated Section 8(a)(5) in that "On
or about April 2, 1984, the above Employer removed 12
bargaining unit positions from the Quality Assurance De-
partment in violation of the labor agreement" By letter
to the parties dated May 4, 1984, the Regional Director
stated, in part
Pursuant to the decisions of the National Labor
Relations Board in Collyer Insulated Wire, 192
NLRB 837 (1971), and United Technologies Corp,
268 NLRB [557] (1984), and the public release of
the General Counsel, I have determined that further
proceedings on the merits of the charge should be
administratively deferred at this time since the alle-
gation of the charge concerns the unilateral removal
of twelve positions from the bargaining unit in vio-
lation of the collective bargaining agreement, and is
amenable to resolution through the grievance and
arbitration procedure of the current collective bar-
gaining agreement
it is my intention to dismiss the charge in the
event the Charging Party does not promptly submit
the dispute underlying the charge to the contract
arbitration procedures, or in the event the Charging
Party notifies me in writing that it does not intend
to submit the dispute to arbitration
Although this letter stated that the Union could appeal
to the General Counsel the Director's administrative de-
termination to defer further proceedings, no such appeal
was filed On May 21, 1984, employee Sawyer filed a
handwritten gnevance which stated
Violation of Art 1—Recognition and/or any
other article that may pertain to this grievance
The Company violated this Article by unilateral
[sic] removing the jobs of Inspectors 3 and 4 from
the bargaining unit
Remedy
Place all jobs back into the bargaining union [sic],
reimburse the Union for all lost dues as a result of
the unilateral move, make all employees whole for
any lost pay as a result of the move including
equalization of overtime Post the jobs under Art
IX, Sect 11 of the Labor Agreement [see supra fn
4]
HILL-ROM CO 355
On July 16, 1984, Respondent issued the following re-
sponse "There being no violation of the contract, griev-
ance denied"
On July 24, 1985, this grievance was heard by an arbi-
trator who is a member of the National Academy of Ar-
bitrators Respondent was represented by two attorneys
and seven members of its managerial staff, the Union was
represented by Business Agent Graves, one employee
witness, and five employees who were union officers and
stewards On October 16, 1985, following the receipt of
briefs, the arbitrator issued an "Award" stating, "The
Company did not violate the Contract in the manner al-
leged in the Grievance" The Union never filed a court
proceeding to vacate the award
During the 1986 contract negotiations, the Union did
not seek any change in the contractual recognition clause
with regard to including or excluding QATs The only
change which the Union sought in that clause was the
deletion of the word "carpenters," to which Respondent
did not agree The recognition clause in the 1986 agree-
ment is substantially the same as the clause in the 1983-
1986 agreement The Union has never claimed that Re-
spondent's April 1984 actions were motivated by antiun-
ion ammus, nor does the General Counsel so claim in
this proceeding 9
E Comparison Between the QAT Job and the Job
Performed by Inspectors 3 and 4
The parties stipulated that 75 percent of the QATs'
worktime is spent performing work tasks similar to those
performed by inspectors 3 and 4 prior to April 2, 1984
These duties essentially consist of the final inspection
duties regarding the bed production lines and the archi-
tectural products production lines 10 Some of these bed-
inspection duties require the employee to connect the
bed under inspection to a computer, to enter certain data
into the computer, and to cause the computer to make
certain tests The bed-inspection duties also require the
use of such equipment as a transducer box, portable high
pods, torque wrenches, a trendle reverb, switch adjust-
ment gauges, ground conductance and sideguard cables,
pliers, and screwdrivers The foregoing duties are per-
formed in inspection booths, located in the building
where final assembly takes place, which receive the beds
after they have been manufactured by unit employees,
and from which the beds are sent either to be repaired
by bargaining unit employees, or to be packed by bar-
gaining unit employees The architectural-products in-
spection duties are performed in an area at the end of the
production lines in a building separate from the bed-pro-
duction building After inspection, such products are sent
9 Nor has the Union ever claimed that Respondent did not bargain in
good faith to impasse in early 1984 The General Counsel contends that
the action Involved here constituted a nonmandatory subject of collective
bargaining, and, when asked whether Respondent bargained to Impasse
Shout the matter, the General Counsel replied, "No, I don't think those
terms are applicable to this situation Impasse has a very specific legal
connotation, which I would not agree to in this case"
10 These architectural products consist of headwall systems which
supply, for example, medical gasses and emergency and nurse call sys-
tems
either to be repaired by bargaining unit employees, or to
be packed by bargaining unit employees
During the first few months spent by the former in-
spectors 3 and 4 as QATs, they received on-the-job train-
ing, and training in classroom settings, from other per-
sonnel employed by Respondent A large portion consist-
ed of on-the-job training, which included how to use the
curve tracer to evaluate components, how to use the
proctor tester (a device to test telephones), and how to
use the tnax tester 11 The formal classroom training was
directed to AC and DC circuits, logic circuits, compo-
nents, and the different functions of different components
so the QATs would become more fully versed in the
electronic area All of the QATs who had been inspec-
tors 3 and 4 were able to complete this training satisfac-
torily except for one employee, whom Respondent "lost"
for this reason a 1-1/2 to 2 years after he became a
QAT
On a date not clear in the record, but before the arbi-
tration hearing on July 24, 1985, Respondent developed
a "training outline" for QATs for duties other than final
inspection This outline called for classes in statistical
methodology, in the operation of laboratory equipment
("familiarization with electronic and mechanical meas-
urement equipment operation of specific pieces of
test and measurement devices Reference material
operation manuals for all laboratory equipment"),
and in "trouble shooting technique (diagnostic and repair
technique)" ("Failure analysis for the purpose of repair
Use of technical documentation (i e, blueprints, schemat-
ics, etc ) in logical problem solving, primarily directed
towards maintenance and service of Q A test equipment
Reference material Q A test equipment documenta-
tion, Hill-Rom production documentation depart-
mental technical library (general)") In addition, the out-
line called for on-the-job training in the application of
test and measurement equipment in quality assurance
audit testing procedures, writing reports (including use
of a word processor), and creating well constructed audit
procedures Also, the outline called for a combination of
on-the-job training and classes regarding repair of Re-
spondent's bed, bed-related, and architectural products
The outline stated that some of the classes would be con-
ducted by lead quality assurance technician Mike
Schmidt with consultation by a senior quality assurance
engineer, and that they would also provide, supervise, or
guide some of the on-the-job training Perdue testified
that the training listed in the outline was probably ac-
complished within 1 to 2 years, but that the training was
also an ongoing process The record falls to show the
amount of training given to QATs who had never been
inspectors 3 or 4
The 25 percent of working time which the QATs
spend in performing work not performed by the final in-
spectors is devoted to coordinator duties, training, labo-
ratory work, and field work The coordinator duties,
which are rotated among the QATs, consist partly of
coming in early to turn on test equipment, shutting the
" A triax is a small electronic device which supplies a specific amount
of voltage and current to another device—In this case, an electric motor
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
equipment down at the end of the shift, and transporting
the floppy disks and the hard copy from the printer, to
the quality assurance office Employee Don Konkle an
inspector 3 between about 1982 and April 1984 credibly
testified that in that capacity he had performed the duties
described in the preceding sentence 12 In addition when
repeated defects start coming into the final inspection
booth, the coordinator discusses the matter with the de
partmental foreman and/or the production people on the
floor Konkle credibly testified that when Respondent
had particular problems on beds he had been told as an
inspector 3 to go out onto the floor, find out what was
the matter with them and see whether the problem
could be corrected 13 The coordinator duties also in
dude transferring people between bed inspection booths
(which inspect significantly different kinds of beds) to
compensate for fluctuating production demands no con
tention is made that this transfer function is supervisory
in nature An employee who is a coordinator spends
most of his time doing purely inspection work
During the first few months spent by the former in
spectors 3 and inspectors 4 as QATs, their training con
sumed 20 to 25 percent of their workweek which con
sisted of 48 to 55 hours a week As previously noted al
though most of this took place on the job some of it
took place in classrooms
QATs are rotated into the laboratory in blocks of four
When a QAT is assigned to the laboratory he is subject
to being called out to do final inspection work if needed
because of absenteeism vacations, or increased produc
bon levels When working in the laboratory the QAT
checks electronic components sent in by the manufactur
er as samples This kind of checking includes the con
duct of a sample approval report or sample approval
record, some of this work was performed by admitted
unit employees both before and after April 1984 14 When
working in the laboratory the QAT also reviews and
tests products returned from the field and performs the
routine receiving inspection of those electronic compo
nents primarily in the area of electric motors load
beams the scale instrument and the max Also the
QAT technicians in the laboratory perform product
audits, which consist of performing, on a sample of Re
spondent s products as they show up in the final inspec
tion booth tests which are too time consuming to be
used on Respondent s entire production and which are
intended to discover latent defects The QAT technicians
in the laboratory use these same kinds of tests to perform
12 1 do not credit Perdue s testimony that Inspectors 3 had never per
formed such duties for demeanor reasons and because his testimony in
this respect is difficult to reconcile with other record evidence Thus al
though Perdue further testified that in addition to performing coordinator
dunes QATs spend 25 percent of their time in the laboratory (where
they undisputedly perform work never performed by Inspectors 3 or in
spectors 4) the parties stipulated that only 25 percent of the QAT s
worktime is spent performing work tasks which are not similar to those
which had been performed by the Inspectors 3 and the Inspectors 4 See
also infra fn 13
' 3 To the extent inconsistent with Konkle s credible testimony in this
respect I do not accept Perdue s testimony that before 1984 such tasks
were performed only by the supervisor over the final Inspectors See
supra fn 12
14 This finding is based on a composite of credible parts of the testimo
ny of Perdue and Konkle
a design review process for verification of reliability and
durability At least prior to April 1984 this design
review process had always been done by nonumt em
ployees The foregomg test functions call for the use of a
proctor tester for telephones computer based test equip
ment for the tnaxes a computerized motor tester a low
beam tester a scale instrument tester a curve tracer, an
optocoupler a computer tester an oscilloscope and sim
piffled strain gauges When problems are encountered
with the testing equipment the QAT then performing
coordinator duties will get in touch with the QA labors
tory and one of the QATs working out of the laboratory
will come down on the floor to service the equipment to
get it brought back on line The most difficult chores in
the laboratory (maintenance and repair of computerized
test equipment) are performed by two or three QATs
who are degreed technicians in electronics education
They are not among the former inspectors 3 and inspec
tom 4 (at a T 7 level on the technicians ladder) and are
at a T 8 or T 9 level
While assigned to the QA laboratory a QAT spends
30 to 40 percent of his time in the field making trips to
the 48 contiguous States and to Canada Most of these
trips are for the purpose of making specific repairs of re
currmg defects in Respondent s products after they reach
the hospital In such cases before leaving to perform a
repair the QAT has had his specific work task described
to him, has been trained for it and has had the opportu
mty to perform it in the laboratory However on occa
mon when the hospital has reported various problems
with the product the QAT is required to operate the
product with all of its functions to determine what func
bons are not operating correctly and to repair them On
occasion, when the QATs are doing repair work in the
field they will be accompanied by hospital maintenance
people who will learn how to perform that repair oper
ation either from the QAT s instructions or through
simply watching and helping him If the QAT has a
question about his work after he has reached the hospi
tal he will talk to lead technician George Patton 13
Some of the repairs (including replacement of parts) per
formed by QATs in the hospital are like those which
would be performed in the plant by a repair line employ
ee or by the QAT Because of the size and bulk of the
inspection equipment which QATs use in performing in
plant inspections the test equipment which QATs take to
the field is completely different While on a field trip the
QAT may be required to change his hotel reservations,
his airline reservations and his airline tickets and to
maintain company vehicles Upon returning from a field
trip the QAT is required to fill out trip reports which
outline what he found on the product and what repairs
he made and to fill out an expense report Before April
1984 all of the field work had been performed by non
15 Before April 1984 Patton worked in the QA laboratory serviced
test equipment supervised or inspected repair work in the warehouse in
spected finished goods in the warehouse to ascertain whether they had
defects similar to those reported from the field and performed repair
work in hospitals in the field On an undisclosed date after Apnl 1984 he
added to these duties the duties of lead technician and became classified
as a QAT
HILL-ROM CO 357
unit personnel in Respondent's customer service depart-
ment
The inspectors 3 and inspectors 4 before April 1984,
and the QATs thereafter, were in Respondent's quality
assurance department, headed by Perdue at all relevant
times Before April 1984, the inspectors 3, who inspected
beds, reported to a supervisor who, in turn, reported to
the inspection manager, directly under Perdue However,
when an inspector 3 had a question about the acceptabil-
ity of a product, he was free to contact either the inspec-
tion manager or the quality assurance engineer Also
before April 1984, the inspectors 4, who inspected archi-
tectural products, reported to the quality assurance engi-
neer, directly under Perdue Since April 1984, the QATs
have reported directly to the inspection manager when
in the bed lines, directly to the quality assurance engi-
neer when inspecting architectural products, directly to
the quality assurance test engineer when in the laborato-
ry, and directly to the customer service manager when
in the field The inspection manager, the quality assur-
ance engineer, and the quality assurance test engineer all
report directly to Perdu; the record fails to show the
customer service manager's immediate supervisor Both
before and after April 1984, inspectors 2 (admittedly bar-
gaining unit employees both before and after April 1984)
reported to the inspection manager With this exception,
and laying the QATs to one side, after April 1984 only
nonumt employees (so far as the record shows) were su-
pervised by the supervisors directly over the QATs-
namely, the inspection manager, the quality assurance en-
gineer, the quality assurance test engineer, and the cus-
tomer service manager
Under the 1983-1986 contract, final inspectors were
being paid at the grade 6 level As of December 1988,
the current bargaining agreement set the grade 6 hourly
wage at $1116 an hour, or about $446 for a 40-hour
week As of that date, the QATs were being paid be-
tween $433 and $501 a week, with an average salary of
$475 However, the record fails to show how many
hours a week they were then working, at either straight
time or overtime, as previously noted, during at least
part of 1984 they had been working 48 to 55 hours a
week As of December 1988, QATs received, as com-
pared to bargaining unit employees at the grade 6 level,
better vacation benefits, more life insurance, higher acci-
dental death and dismemberment benefits, higher sickness
and accident benefits, higher "workmen's compensation"
benefits, a short-term salary continuance benefit not re-
ceived by grade 6 employees, and one less holiday As of
that date, all of Respondent's employees, including man-
agement, were covered by a common pension plan and a
common health care program 16
16 The record fails to show whether any of Respondent s personnel
paid all or part of the premiums for any of these benefits
F Analysis and Conclusions
1 Respondent's contention that deference should be
given to the arbitrator's determination that QATs
are not in the bargaining unit
In seeking dismissal of the complaint, Respondent
points to the fact that typewritten portions of the
Union's charge merely alleged that Respondent violated
Section 8(a)(5) by removing 12 bargaining unit positions
from the quality assurance department in violation of the
bargaining agreement, that in May 1984 the Regional Di-
rector administratively deferred proceedings on the
merits of the charge "at this time since the allegations of
the charge [concern] the unilateral removal of twelve po-
sitions from the bargaining unit in violation of the collec-
tive bargaining agreement, and [are] amenable to resolu-
tion through the grievance and arbitration procedure of
the current collective bargaining agreement", and that
after considering a grievance alleging that Respondent
had violated the agreement by unilaterally removing the
jobs of inspectors 3 and 4 from the bargaining unit, the
arbitrator denied the grievance In denying the griev-
ance, the arbitrator found, without discussion, that QATs
were not in the unit, and further found that Respondent
did not violate the contractual recognition clause or any
other contract clause by transferring final inspection
work to the "new non-unit classification"
The General Counsel contends that the arbitrator's de-
cision should not be deferred to, on the ground, inter
slut, that except under limited circumstances which are
not present here, the Board does not defer to an arbitra-
tor's award in a case which presents a representation, ac-
cretion, or appropriate-unit issue See, e g, Paper Mfrs
Co, 274 NLRB 491, 494-496 (1985), enfd 786 F 2d 163,
167 (3d Or 1986), and cases cited Moreover, as to the
merits, the General Counsel heavily relies on cases hold-
ing that the scope and composition of a bargaining unit
are not mandatory subjects of collective bargaining and
may be altered only by a Board determination or by an
agreement between the employer and the bargaining rep-
resentative See, e g, United Technologies Corp, 292
NLRB 248 (1989), Bay Shipbuilding Corp, 263 NLRB
1133, 1139-1141 (1982), enfd 721 F 2d 187 (7th Cir
1983)," Howard Electrical & Mechanical, 293 NLRB 472
(1989), Idaho Stateman, 281 NLRB 272 (1986), enfd in
material part 836 F 2d 1396 (D C Cir 1988), Boise Cas-
cade Corp v NLRB, 860 F 2d 471, 474-475, 478 (D C
Cir 1988), Facet Enterprises, Inc , 290 NLRB 152 (1988),
Tarlas Meat Co, 239 NLRB 1396, 1397 (1979), Bozzuto's,
Inc , 277 NLRB 977 (1985), Standard Register Co, 288
NLRB 1409 (1988), see also Newspaper Printing Corp v
NLRB, 625 F 2d 956, 963 (10th Or 1980), cert denied
450 U S 911 (1981), and cases cited Respondent con-
tends that the foregoing line of cases is irrelevant, on the
ground that the instant case allegedly involves neither a
representation, accretion, or appropriate-unit issue nor an
alteration of the scope of the bargaining unit Rather,
17 In view of United Technologies 1989 reliance on Bay Shipbuilding,
Respondent errs in contending that this 1984 case was overruled sub si-
lentio by Kohler Co, 273 NLRB 1580 (1985) (Kohler 1) Kohler I is dis-
cussed at greater length below
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent contends all it did here was to implement,
after Impasse, a bargamable proposal to transfer work
outside the bargaining unit As many be apparent even at
this point, resolution of the above-summarized deferral
issue requires a substantial incursion into the ments of
the case
As Respondent correctly points out, the transfer of
work outside the bargaining unit is a mandatory subject
of collective bargaining, and the employer's right to
effect such a lawfully motivated transfer after impasse is
not negated by a showing that upon such a transfer, a
job classification within the unit will have no incumbents
and, therefore, will be dormant at best See University of
Chicago v NLRB, 514 F 2d 942, 949 (7th Cir 1975), Illi-
nois Coil Spring Co, 268 NLRB 601 (1984), affd 765
F 2d 175 (D C Cir 1985), University Health Care Center,
274 NLRB 764 (1985), enfd 786 F 2d 1170 (8th Cir
1986), Dahl Fish Co, 279 NLRB 1084 (1986), enfd 813
F 2d 1254 (D C Or 1987), Cincinnati Enquirer, 279
NLRB 1023 (1986), Oak Rubber Co, 277 NLRB 1322
(1985) So long as the work has unquestionably been
transferred outside the bargaining unit (the transfer of
such work to an outside contractor being the clearest
such situation but by no means the only one), the em-
ployer's right to transfer such work, and thereafter to
refuse recognition as to the employees newly performing
it, is unaffected by the nonmandatory bargaining status
of unit scope or composition On the other hand, the
mandatory bargaining status of work transferred to out-
side the bargaining unit is irrelevant to cases where the
only changes relied upon to support an employer's refus-
al to bargain as to theA employees in a particular job clas-
sification consist of a change in the title of that classifica-
tion and/or the identity of the employees in that employ-
er's employ who are working in that classification Be-
cause, whether a job classification is included in a bar-
gaining unit depends on the job's content and not on its
title, and does not depend in any way on the identity of
the employer's employees who are working in that clas-
sification, in cases involving only such changes the work
has never in legal contemplation been transferred out of
the unit at all See Bay Shipbuilding, supra, Facet Enter-
prises, supra
No contention is (or could validly be) advanced that
the action on which Respondent relies to support its re-
fusal to bargain constituted a mere change in the title of
a job classification, the QATs duties included duties
which had never been performed by final inspectors On
the other hand, neither could it be validly contended that
Respondent's refusal to bargain with respect to the
QATs, most of whose duties consisted of the final-in-
spection work which had been performed by bargaining
unit final inspectors, was as a matter of law excused by
the QATs performance, in addition, of previously non-
unit duties, regardless of their nature and the amount of
time which the QATs devote to them If Respondent
were contending that the QATs could not appropriately
be included in the unit and the General Counsel were
contending that they could not appropriately be ex-
cluded, Respondent would likely have the burden of
showing that the QATs are sufficiently dissimilar from
the remainder of the unit so as to warrant removal
United Technologies, supra Application of this rule in the
instant case would likely require a finding, without any
further analysis, that Respondent violated Section 8(a)(5)
by refusing to recognize the Union with respect to the
QATs, for Respondent admits that they could have ap-
propriately been included in the unit However, applica-
tion of this rule to the instant situation is at least argu-
ably rendered anomalous by the General Counsel's ad-
mission that by agreement the QATs could appropriately
have been excluded Accordingly, in the instant case I
conclude that Respondent's bargaining duty turns on
whether the addition of these duties rendered the com-
munity of interest between the QATs and the admitted
unit employees (as shown and augmented by the 8-year
inclusion of the final inspectors) less than between the
QATs and admitted nonumt employees (more specifical-
ly, the technical employees) If the answer to this ques-
tion is in the negative, the QATs are in the unit and no
work which they perform has ever as a matter of law
been transferred outside the unit
In short, Respondent's posthearmg brief merely begs
the question by such statements as, "It cannot be disput-
ed that the Company assigned final inspection work to
non-unit QAT's, and nothing more" (Br 27), Director of
Human Resources Moeller correctly characterized Re-
spondent's decision that QATs should be a nonunit posi-
tion as an appropriate-unit determination ("We felt
that it was more appropriate out of the unit than in the
unit"), and Respondent's refusal to bargain with respect
to the QATs presents a unit question as to which the
Board will defer to an arbitrator's determination under
only limited circumstances See Paper Mfrs, supra, 274
NLRB at 495 No such circumstances are present here,
the arbitrator found without discussion that the QATs
were not in the bargaining unit and assumed throughout
her opinion that the inspection work performed by them
had been transferred out of the unit 18 Contrary to Re-
spondent's suggestion at the hearing, my conclusion in
this respect does not imply any error by the Regional
Director in withholding action on the charge until after
the processing, through the contractual
grievance/arbitration procedure, of a grievance which
tracked specific language in the charge This process
could have disposed of the dispute in a manner clearly
consistent with Board standards—for example, a determi-
nation that the contract had not been breached because
the Union and Respondent had agreed to exclude QATs
from the bargaining unit
The foregoing discussion has been based on, inter aim,
the class of cases (including Bay Shipbuilding, supra, 263
NLRB 1133) holding that unit scope and composition are
not mandatory subjects of collective bargaining As pre-
viously noted, Respondent's contention that the Board
overruled Bay Shipbuilding in Kohler I, supra, 273 NLRB
1580 (1985), is disposed of by United Technologies, supra,
292 NLRB 248 (1989) Moreover, Respondent's conten-
" Indeed, the third paragraph of her 18-paragraph decision states, in
the second paragraph under the heading "Background,' "The Issue in
this case involves the elimination of 12 bargaining unit positions in April
1984 when final inspection duties performed by unit employees were
dovetailed Into a new (nonumt) job of Q A Test Technician"
HILL-ROM CO 359
tion that Kohler I overruled the legal proposition for
which Bay Shipbuilding stands is disposed of by the cases
cited supra which were decided after Kohler I It is true
that 18 days after issuing United Technologies, the Board
issued Kohler Cc, 292 NLRB 716 (1989) (Kohler II) 19
Like Kohler I, Kohler II found in relevant part that the
employer violated Section 8(a)(5) by "unilaterally remov-
ing the position of maintenance stores stock control clerk
from the bargaining unit," and in relevant part ordered
the employer to cease and desist from "altering the com-
position of the bargaining unit by reclassifying a position
to remove it from the bargaining unit while the Incum-
bent continues to do bargaining unit work, without first
negotiating with the Union" I see nothing on the face of
Kohler II which renders it distinguishable from United
Technologies, Bay Shipbuilding, and the cases on which
they rely However, nothing in the two Kohler decisions
suggests that any party questioned, before either the ad-
ministrative law judges or the Board, the mandatory bar-
gaining status of the reclassification action taken by the
employer 29 Moreover, the principle that proposals for
changes in the scope of the unit concern subjects about
which the parties are not required to bargain, and cannot
be lawfully implemented without the consent of both
parties, was reiterated by the Board about 2 months after
it issued Kohler II Howard Electrical, supra, 293 NLRB
472 Accordingly, I shall apply that principle without
regard to whether it is reconcilable with Kohler I or
Kohler II
2 Whether the QATs are in the bargaining unit
As to whether the QATs are in the bargaining unit, I
find that notwithstanding the QAT duties which were
never performed by final inspectors, the QATs have a
greater community of interest with the admitted unit em-
ployees than with admitted nonunit employees The par-
ties stipulated that the QATs spend 75 percent of their
time performing the same work which had been per-
formed by the final inspectors, and employee Konkle's
credited testimony shows that the proportion was rather
more than that The QATs perform this work in the
19 Because It Issued on the date the postheanng briefs were due, Kohler
II could not be cited therein Neither do such briefs cite United Technol-
ogies, issued 18 days before their due date
20 In Kohler I, the Board 'particularly" relied on "Respondent s admis-
sion that it redefined the stock clerk job description for the purpose of
removing that position from the bargaining unit such action is not a
right granted the Respondent by the contractual management-rights
clause" The administrative law judge relied (273 NLRB at 1583), upon
Fry Foods, 241 NLRB 76, 88 (1979), enfd 609 F 2d 267 (6th Or 1979),
which Involved the unilateral promotion of bargaining unit employees to
supervisory positions where they continued to perform unit work—em-
ployer conduct which unquestionably transferred work out of the bar-
gaining unit The administrative law judge's decision in Kohler II, which
as to this matter was adopted by the Board without comment, states (at
717)
Although the Respondent in the Instant case sought to Introduce
evidence that its action in reclassifying the position was justified by
the fact that the duties of the position had changed to such an extent
that it was more properly an administrative than a union-eligible job,
this evidence was essentially the same as It had presented in Kohler I
In that case it was found that the reclassification was "a unilateral
change with no discernible economic foundation and that 'the only
cause for the change must have been to remove the position from
union protection"
same locations, and using the same equipment, as did the
final inspectors The final inspection of architectural
products continues to be performed at a station at the
end of the architectural products final-assembly line,
which continues to be manned by admitted unit employ-
ees The bed inspection continues to be performed in
booths which are located on the same respective floors
as the final-assembly lines for the respective models of
beds, which continue to be assembled by admitted unit
employees The products continue to be handled by ad-
mitted unit employees both immediately before and im-
mediately after the inspection process The inspection
work of the QATs who inspect architectural products is
directly supervised by the quality assurance engineer,
who also directly supervised the inspectors 4 The in-
spection work of the QATs who inspect beds, who as to
inspection work are not interchanged with the QATs
who inspect architectural products, is directly supervised
by the inspection manager, who at all times has been di-
rectly over inspectors 2 (admittedly in the unit) and to
whom the inspector 3's immediate supervisor had direct-
ly reported 21 Further, the coordinator duties performed
by the QATs require discussion with unit employees
Moreover, QATs are in the same department (the quality
assurance department) as the final inspectors had been,
which still includes admitted unit employees (inspectors
2) and is still headed by the quality assurance director,
who is still directly over the quality assurance engineer
and the inspection manager In addition, between 1976
and April 1984, final inspectors were eligible to bid on
other jobs in the bargaining unit Further, for at least the
11 months immediately proceeding the establishment of
QATs, the bargaining agreement required vacancies in
final inspectors' jobs to be filled by qualified bidders who
were members of the bargaining unit, and permitted final
inspectors (but not nonumt employees) to bid into other
unit jobs Also, Respondent accepted as QATs all the
final inspectors who wanted such jobs, omitting as un-
necessary the qualifying test administered to all other ap-
plicants, and accepted for such jobs all three of the other
bargaining unit applicants Finally, the final inspectors
had been included in the unit for 8 years before all but 2
of them became 12 of the first 16 QATs
I conclude that taken as a whole these circumstances
show that the QATs have a greater community of inter-
est with the unit employees than with the nonunit techni-
cians Thus, the QATs spend less than 25 percent of their
time performing duties which were not performed by
final inspectors, some of the tests and repairs which they
make during this period are the same as or similar to,
and/or require use of the same tools and testing devices,
as those called for in final-inspection work, it is only
during this period that they have more contact than did
final inspectors with admittedly nonumt employees and
work directly under supervisors who otherwise supervise
only admittedly nonunit employees, and during this
period they are subject to being called out to do final-
inspection work when the need arises In finding that
21 The inspectors 3, who had inspected beds, had been immediately su-
pervised by a supervisor who reported to the inspection manager With
the creation of the QATs, this former supervisory position was abolished
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
QATs' community of interest with admitted unit employ-
ees outweighs their community of interest with admitted
nonumt employees, I give little weight to the circum-
stance that Respondent put QATs on the "technicians'
ladder" but had not done so with respect to final inspec-
tors, Perdue testified, in effect, that as to vacancies on
this ladder, Respondent gives equal consideration to ap-
plicants who are already on that ladder and applicants
who are not Nor do I give weight to the differences
(mostly in favor of the QATs) between their wages and
benefits and those of the final inspectors, such differences
are due solely to Respondent's decision to regard QATs
as excluded from the unit
In finding that the QATs are included in the certified
unit, I do not accept the General Counsel's contention
that the QATs constitute an accretion to the unit, such a
contention is difficult to square with his admission that
by agreement, they could appropriately have been ex-
cluded from the unit See Super Value Stores, 283 NLRB
134 (1987) Neither do I rely on the class of cases (al-
though I cited them in a sua sponte postheanng letter to
counsel) regarding dual-function employees (see, e g,
Berea Publishing Go, 140 NLRB 516 (1963)), after March
1984, no final-inspection work was being performed by
admitted unit employees
For the foregoing reasons, I find that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally,
and without the Union's consent, removing the QAT
classification from the bargaining unit and withdrawing
recognition from the Union as the representative of that
classification Since Respondent sought to achieve this
result largely by refusing to apply the bargaining agree-
ment to the QATs, I reject Respondent's contention that
such a finding is barred by Section 10(b) of the Act be-
cause the charge merely alleged that Respondent had un-
lawfully removed bargaining unit positions from the
quality assurance department in violation of the bargain-
ing agreement, and that "By the above and other Acts,
[Respondent] has interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in
Section 7 of the Act" See NLRB v Complas Industries,
714 F 2d 729, 732-733 (7th Cir 1983), Redd-I Inc , 290
NLRB 1115 (1988), Davis Electrical Constructors, 291
NLRB 115 (1988) .
3 Respondent's contention that deference should be
given to the arbitrator's determination that QATs
were not covered by the 1983-1986 agreement
Also contrary to Board precedent is Respondent's con-
tention that the arbitrator's decision should be deferred
to in connection with the complaint allegations that Re-
spondent unlawfully refused to apply the 1983-1986 col-
lective-bargaining agreement to the QATs As I read the
arbitrator's decision, her determination that the QATs
were not covered by the agreement was based entirely
on her determination that they were not in the bargain-
ing unit—a determination of a kind to which the Board
would not defer and which has been found erroneous on
the merits, her decision does not suggest any view that if
they were in the unit (as I have found), the contract
nonetheless did not cover them Accordingly, the rela-
tionship between the nondeferrable issue of the QATs
unit placement and the issue of whether they were cov-
ered by the 1983-1986 contract renders the latter issue
inappropriate for deferral Blue Cross ii Blue Shield of
New Jersey, 288 NLRB 434 (1988), Burroughs Credit
Union, 280 NLRB 292 (1986), S Q I Roofing, 271 NLRB
1 fn 3 (1984), Sheet Metal Workers Local 17 (George
Koch Sons), 199 NLRB 166, 168 (1972), Roadway Ex-
press, 274 NLRB 357, 369 (1985), Brunswick Corp, 254
NLRB 1120 (1981) 22
4 Whether the QATs were covered by the 1983-
1986 contract
I agree with the General Counsel that the 1983-1986
bargaining agreement covered QATs Admittedly, the
contract had covered final inspectors, whose work is ad-
mittedly performed by QATs Further, the agreement
contained express provisions for its application where
Respondent established a new job classification, changed
the content of a job classification, or combined job
duties Moreover, the recognition clause tracked the
Union's certification, which in consequence of this pro-
ceeding includes QATs, and there is no suggestion at all
that the parties intended to exclude from the contract
any classifications which were covered by the certifica-
tion, indeed, by agreeing to such an exclusion the Union
would have imperiled its certification and might even
have committed an unfair labor practice 23 Accordingly,
I find that Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to apply the terms of the 1983-1986
agreement to the QATs See NLRB v Ilildisco ct B,!-
disco, 465 U S 513, 532-533 (1984), Chicago Magnesium
Castings Co v NLRB, 612 F 2d 1028, 1034 (7th Cir
1980), Meyer's Cafe di Konditorei, 282 NLRB 1 (1986)
CONCLUSIONS OF LAW
1 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 mean-
ing of Section 2(5) of the Act
3 Respondent violated Section 8(a)(5) and (1) of the
Act when, without the Union's agreement, it modified an
appropriate unit by unilaterally removing the classifica-
tion of quality assurance technician, when Respondent
withdrew recognition from the Union as the representa-
tive of that classification, and when Respondent refused
to apply the terms of the 1983-1986 collective-bargaining
agreement to quality assurance technicians
4 The unfair labor practices set forth in Conclusion of
Law 3 affect commerce within the meaning of Section
2(6) and (7) of the Act
22 In 259 NLRB 876 (1982), the Board found that the employer in
Mercury Marine violated Sec 8(a)(5) by refusing to bargain with respect
to the job classification at issue in 254 NLRB 1120 Thereafter, the Sev-
enth Circuit enforced the bargaining order, 703 F 2d 571 (7th Cir 1983)
23 See Tom Thumb Stores, 123 NLRB 833, 834 (1959), Teamsters Local
671 (Airborne Freight), 199 NLRB 994 (1972)
HILL-ROM CO 361
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist from such conduct, and like
or related conduct, and to take certain affirmative action
to effectuate the policies of the Act
Affirmatively, Respondent will be required to recog-
nize the Union as the representative of the QATs as part
of the certified unit, to apply the provisions of the 1983-
1986 bargaining agreement to the extent Respondent's
actions with respect to the QATs have caused it not to
apply such provisions, and thereafter to continue to
maintain, to the extent affected by the inclusion of the
QATs in the bargaining unit, the wages, hours, and other
terms and conditions of employment established pursuant
to that agreement until such time as the parties bargain
to a new agreement which covers the QATs or reach a
bona fide impasse in such contract negotiations Re-
spondent's refusal to recognize the Union with respect to
or to apply the bargaining agreement to the QATs may
have inflicted losses on remaining members of the bar-
gaining unit, for example, final inspectors who did not
want to become QATs may have been transferred to
jobs which paid less than final inspectors' jobs," one
former final inspector could not be adequately trained
for QAT work, and the 1983-1986 contract permits only
unit members to bid on unit jobs and contains provisions
for seniority-based "bumping" within the unit in the
event of layoffs or abolition of jobs within the unit Ac-
cordingly, Respondent will be required to make all the
unit employees (including, but not limited to, the QATs
and the final inspectors who refused to accept or were
unable to retain jobs as QATs) whole for any losses they
may have suffered by reason of Respondent's unlawful
action with respect to the QATs Loss of pay due to sep-
aration from employment is to be computed in the
manner prescribed in the manner prescribed in F W
Woolworth Co, 90 NLRB 289 (1950) All sums due under
this Order are to be paid with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987) 25
Nothing herein shall be construed to authorize or re-
quire the withdrawal or elimination of any wage in-
creases or other improved benefits or terms or conditions
of employment which may have been afforded to the
QATs as compared to the wages, benefits, and terms or
conditions of employment observed in the bargaining
unit
Respondent will also be required to post appropriate
notices
24 The arbitrator found that three final inspectors declined to become
QATs, that one of these was retiring, and that the remaining two were
eventually forced to bump into lower paying unit jobs The General
Counsel declined to stipulate to the arbitrator's factual findings
25 All employees of Respondent are covered by a common pension
plan and a common health care plan There is no evidence that the unit
employees are covered by any other employee benefit funds Cf
Merryweather Optical Co, 240 NLRB 1213, 1216 (1979)
Under New Horizons, Interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U S C Sec 6621 Interest accrued before January 1, 1987 (the effec-
tive date of the amendment), shall be computed as in Florida Steel Corp,
231 NLRB 651 (1977)
On these findings of fact and conclusions of law and
the on entire record, I Issue the following26
ORDER
The Respondent, Hill-Rom Company, Inc , Batesville,
Indiana, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Excluding quality assurance technicians who per-
form final inspection from the collective-bargaining unit
represented by Furniture & Casket Workers Local Union
No 525, Upholsterers International Union of North
America, AFL-CIO without the agreement of Local
525
(b) Withdrawing recognition from Local 525 as the
bargaining representative of that classification
(c) Refusing to apply to that classification Respond-
ent's 1983-1986 bargaining agreement with Local 525
(d) 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) Recognize Local 525 as the representative of these
quality assurance technicians as part of the certified unit
represented by Local 525, apply the 1983-1986 bargain-
ing agreement with Local 525 so as to include them in its
coverage, and thereafter maintain, to the extent affected
by the inclusion of these quality assurance technicians in
the bargaining unit, the wages, hours, and other terms
and conditions of employment established pursuant to
that agreement until such time as the parties bargain to a
new agreement which covers these quality assurance
technicians or reach a bona fide impasse in such contract
negotiations, but nothing in this Order shall be construed
to authorize or require the withdrawal or elimination of
any wage increases or other improved benefits or terms
or conditions of employment which may have been af-
forded to these quality control technicians as compared
to the wages, benefits, or terms or conditions of employ-
ment observed in the bargaining unit
(b) Make the employees in that unit whole for any
losses they may have incurred as a result of the unlawful
exclusion of these quality assurance technicians from the
bargaining unit and from the coverage of the 1983-1986
agreement, in the manner prescribed in that part of this
decision entitled "The Remedy"
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary or useful for analyzing the amount of backpay due
under the terms of the Order
(d) Post at its facilities at Batesville, Indiana, copies of
the attached notice marked "Appendix "27 Copies of the
26 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided by Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
27 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 Nation-
Continued
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notice, on forms provided .by the Regional Director for
Region 25, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places, including all place
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered .by
any other material
(e) Notify the Regional Director in wntmg within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
al 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
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT exclude the quality assurance techm-
clans who perform final inspection from the collective-
bargaining unit represented by Furniture & Casket
Workers Local Union , No 525, Upholsterers Internation-
al Union of North America, AFL-CIO without the
agreement of Local 525
WE WILL NOT withdraw recognition from Local 525
as the bargaining representative of these quality assur-
ance technicians
WE WILL NOT refuse to apply our 1983-1986 bargain-
ing agreement with Local 525 to these quality assurance
technicians
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights under the Act
WE WILL recognize Local 525 as the representative of
these quality assurance technicians as part of the certified
unit represented by Local 525, and apply our 1983-1986
bargaining agreement with Local 525 so as to include
them in its coverage WE WILL thereafter maintain, to
the extent affected by the inclusion of these quality assur-
ance technicians in the bargaining unit, the wages, hours,
and other terms and conditions of employment estab-
lished pursuant to that agreement until such time as we
bargain with Local 525 to a new agreement which
covers these quality assurance technicians or reach a
bona fide impasse in such contract negotiations Howev-
er, the Board has not authorized or required us to with-
draw or eliminate any wage increases or other improved
benefits or terms or conditions of employment which
may have been afforded to these quality control techni-
cians as compared to the wages, benefits, or terms condi-
tions of employment observed in the bargaining unit
WE WILL make the employees in that unit, including
but not limited to these quality assurance technicians,
whole, with interest, for any losses they may have in-
curred as a result of our unlawful exclusion of these
quality assurance technicians from the bargaining unit
and from the coverage of our 1983-1986 contract with
Local 525
HILL-ROM COMPANY, INC