Roper Corporation

National Labor Relations Board - Board Decisions

Sep 15, 1982

263 N.L.R.B. 1073 (N.L.R.B. 1982)

ROPER CORPORATION
Roper Corporation and Donald Richard Otto. Case
5-CA- 12203
September 15, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On March 4, 1982, Administrative Law Judge
Sidney J. Barban issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and International
Union, United Plant Guard Workers of America,'
and the General Counsel filed answering briefs.
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, 2 find-
ings,3 and conclusions4 of the Administrative Law
Judge and to adopt his recommended Order.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Roper Corpo-
ration, Baltimore, Maryland, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
I Prior to the hearing, the Regional Director for Region 5 granted the
Union's motion to intervene in the present proceeding.
2 We agree with the Administrative Law Judge's determination not to
consider the hearsay testimony of statements allegedly made by employee
Shan Carroll on the evening before the hearing in regard to positions
taken by union negotiator Max McDermott during contract negotiations.
In any event, we note that this hearsay testimony would corroborate the
testimony relied on by the Administrative Law Judge that during negoti-
ations McDermott asserted that he was opposed to including the system
of merit increases in the bargaining agreement.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
4 In the absence of exceptions, we adopt pro forma the Administrative
Law Judge's dismissal of the 8(aX3) allegations.
I In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest On the backpay
due based on the formula set forth therein.
263 NLRB No. 151
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain in good
faith with International Union, United Plant
Guard Workers of America (UPGWA), as the
exclusive representative of employees in the
appropriate unit set forth below by unilaterally
changing working conditions or practices
without consulting and bargaining with the
Union first.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed them under
the National Labor Relations Act.
WE WILL make whole the employees in the
following appropriate unit for any losses they
may have suffered by reason of our discontinu-
ing job performance reviews and withholding
wage increases from December 1, 1979, until
June 2, 1980, with interest. The appropriate
unit is:
All plant production security personnel per-
forming plant protection duties as defined in
the National Labor Relations Act, employed
by the Company at the Baltimore facility,
but excluding all other employees and super-
visors as defined in the Act.
ROPER CORPORATION
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard in Baltimore, Maryland, on July 31,
1981, on a complaint issued on July 10, 1980, based on a
charge filed on May 12 and amended on May 28, 1980.
The complaint alleges that, in February, April, and May
1980, Roper Corporation' interfered with, restrained,
and coerced employees in violation of Section 8(a)(1) of
the National Labor Relations Act (herein the Act) (a) by
telling employees that it could not give wage raises be-
cause Respondent and International Union, United Plant
Guard Workers of America (UPGWA) (herein the
Union), were negotiating, and (b) by telling employees
that Respondent had a "beautiful deal" for the employ-
ees, but they "blew it" when they voted for the Union;
that Respondent violated Section 8(a)(3) and (1) of the
Act by discriminating against employees, since February,
March, and April 1980, by failing and refusing to give
them regularly scheduled job performance evaluations
i Respondent's name as corrected at the hearing.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and subsequent wage increases because of their adher-
ence to the Union; and that Respondent violated Section
8(a)(5) and (1), since December 1, 1979, by refusing to
bargain in good faith by unilaterally, and without notice
to or affording the Union an opportunity to bargain
thereon, discontinuing its policy of granting regularly
scheduled employee job performance evaluations and
subsequent wage increases.
The answer to the complaint denies the commission of
the unfair labor practices alleged, but admits allegations
of the complaint sufficient to justify the assertion of juris-
diction under the Board's present standards (Respondent,
engaged in Baltimore, Maryland, in the manufacture and
sale of coated metal products, during a recent annual
period purchased and received at its Baltimore facility
materials and supplies valued in excess of $50,000 direct-
ly from points outside the State of Maryland), and to
support a finding that the Union is a labor organization
within the meaning of the Act.2
Upon the entire record in this case, from my observa-
tion of the witnesses and their demeanor, and after due
consideration of the brief filed by Respondent and the
General Counsel's oral argument made at the hearing, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE FACTS
This case concerns the failure and refusal of Respond-
ent to grant periodic performance evaluations and conse-
quent merit increases to a small group of guard personnel
employed at Respondent's Baltimore facility during the
period beginning with the filing of the Union's petition
to be certified as the guards' representative and continu-
ing through the negotiations with the Union for a collec-
tive-bargaining agreement.
A. The Representation Proceeding
The Union filed its petition for representation on July
6, 1979. After an election conducted on August 30, 1979,
the Board, on September 19, 1979, certified the Union as
the representative of the guard unit. 3 As a result of bar-
gaining negotiations from October 1979 until June 1980,
the Union and Respondent entered into a bargaining
agreement effective from June 2, 1980, to June 30, 1983.
B. The Merit Increases
Prior to the time of the Union's petition, Respondent
had a well-established practice of periodically (annually
or semiannually) evaluating the job performance of its
employees, and, based on that evaluation, granting merit
wage increases. The record indicates that it was unusual
for an employee not to get an increase on these occa-
2 The Urnion's petition to intervene in this matter was granted by the
Regional Director before the hearing opened, but it did not make an ap-
pearance or participate in the hearing.
a The appropriate unit is:
All plant production security personnel performing plant protection
duties as defined by Section 9(b)(3) of the Act, employed by the Re-
spondent at its Baltimore, Maryland facility, but excluding all other
employees and supervisors as defined in the Act.
sions, ranging from 16 cents to 25 cents per hour, mostly
in the upper part of that range.
On advice of counsel, Respondent decided to discon-
tinue these job evaluations and merit increases for guard
employees in the appropriate unit as of the date of the
filing of the Union's petition for certification. At the time
of the petition, the immediate supervisor of the guards,
Andrew Eisner, was told to tell the employees that Re-
spondent would not give any evaluations or merit in-
creases because of the filing of the petition. However,
there is no evidence that the employees were, in fact, ad-
vised of this prior to the start of the bargaining negotia-
tions. Respondent's witnesses also testified that none of
the employees were due evaluations or were denied
merit increases prior to the start of collective bargaining
in October 1979. The General Counsel's complaint,
indeed, does not allege that Respondent denied any em-
ployee job evaluations or increases before February
1980.
Respondent contends that during the negotiations, the
Union approved of withholding merit increases from unit
members, based on the testimony of Eisner and Dana T.
Schubert, who was then director of industrial relations
for Respondent. 4 I do not have much confidence in their
testimony on the point. In their efforts to support Re-
spondent's legal position, they seemed less than candid
and forthright. But there seems no question that, during
negotiations, McDermott quite vigorously asserted that
he was opposed to including the system of merit in-
creases in the bargaining agreement, and wanted all the
guards treated the same, with fixed wage levels and auto-
matic wage progressions. The final contract appears to
carry this out. However, it is also clear that at no time
during the negotiations did Respondent notify the Union
that it had discontinued the merit increase system, or
that employees due performance evaluations and possible
wage increases were being denied these benefits while
the contract was being negotiated, notwithstanding
McDermott's request that no changes in working condi-
tions be made without discussing it with the Union first.
I find that the Union was not given reasonable opportu-
nity to bargain on Respondent's discontinuance of the
merit increase system during contract negotiations, or its
application to specific employees due to be considered
for such increases, and did not agree to those actions or
approve them.
C. Statements to Employees
Guard employee Verna Orlando testified to two con-
versations with Supervisor Eisner in February 1980 con-
cerning merit raises. In the first conversation, Orlando
states that she went into Eisner's office and asked when
she would get a raise. She says that Eisner replied that
4 The General Counsel presented no witnesses on the issue. Howsever,
at the times material to this issue, the Union was represented in the nego-
tiations by Max McDermott, an agent of the Unionl, and by Shan Carroll,
an employee. McDermott has since died. The General Counsel stated
that he had been unable to locate Carroll. However, Eisner testified that
he had talked with Carroll in Baltimore the night before the hearing, and
I permitted him to testify, over the General Counsel's objection, to what
Carroll had to say on the issue. This was clearly in error and I have ig-
nored that part of Eisner's testimony, which is hearsay.
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ROPER CORPORATION
he could not help her because Respondent was in negoti-
ations with the Union, adding that "he had a beautiful
deal for us, but we blew it by getting the Union in."
On the second occasion, Orlando says she again asked
Eisner if she could not get a raise. She said that Eisner
answered, "No, his hands were tied because we were ne-
gotiating with the Union."
Employee Luther Hampe testified that during the ne-
gotiations between the Union and Respondent, one
morning when the guards were discussing the fact that
the employees at Respondent's Columbia plant had just
received a 40-cent raise, and that in the past the Balti-
more guards received a raise when they did, Hampe
asked Eisner, "Are we going to get our raise?" Eisner re-
plied, "Well, I can't give any reviews right now, or
raises right now because of the negotiation."
Hampe also testified that about this same time he asked
the then manager of employee relations, Bacon, the same
question, and that Bacon "said the same thing, that he
couldn't give us any raises at this time."
James Airey, another guard employee, testified to an
occasion in late May 1980, during which he discussed
with Eisner a raise for himself. He states that, "I knew
what Mr. Eisner would say, but Mr. Eisner said he was
sorry, but the same as the rest of the men, as long as ne-
gotiations was going on, he couldn't give nobody a
raise."
Eisner denied that he told Orlando that the guards
"had a beautiful deal, but blew it when you got the
Union." However, based on the record as a whole and
my assessment of the witnesses' credibility, I credit Or-
lando to the extent that her testimony conflicts with
Eisner.
11. ANAL YSIS AND CONCLUSIONS
As the General Counsel argues, citing N.L.R.B. v.
Benne Katz, et al., 369 U.S. 736 (1962); N.L.R.B. v. Allied
Products Corp., Richard Bros Div., 629 F.2d 1167 (6th
Cir. 1980); Barko Hydraulics, Inc., 225 NLRB 1379
(1976); and Nucor Corporation, 230 NLRB 297 (1977), it
is well established that, where an employer has an obli-
gation to bargain concerning wages and working condi-
tions, it is a violation of the Act for the employer to uni-
laterally make changes in employee working conditions,
without prior notice to the union, and giving the union a
reasonable opportunity to bargain about such proposed
changes.
Respondent does not dispute this principle, but argues
at length, citing a number of court of appeals opinions,
that it should not be required to risk being charged with
violating the Act by granting wage increases during this
period. But Respondent misapprehends the basic thrust
of this case. It is not charged here with violating the Act
before the representation election, but only after it was
under an obligation to deal with the Union, and thus not
to act unilaterally. It could have avoided the "dilemma"
it now claims by simply notifying the Union that it in-
tended to discontinue its past practice of periodic wage
increases, and to withhold such increases from employ-
ees due to be considered for such benefits during the
period the parties were in negotiation, and affording the
Union a reasonable opportunity to bargain thereon. It is
not to be assumed that the Union would have agreed
that the employees should not be given wage increases
during that period, if they were due, or that Respondent
and the Union could not have agreed on the amounts of
the raises. In any event, by Respondent's choice, the
issue was not brought into focus.
It has long been settled that an employer violates the
Act in these situations when the course it chooses, as in
this case, necessarily tends to penalize the employees for
having chosen a union to represent them, and under-
mines the union as their representative. See McCormick
Longmeadow Stone Co., Inc., 158 NLRB 1237 (1966);
Agawam Food Mart, Inc., et al. d/b/a The Food Mart, 158
NLRB 1294 (1966). As the court said, in Armstrong Cork
Company v. N.LR.B., 211 F.2d 843 at 847 (1954), "Good
faith compliance with Section 8(a)(5) and 8(a)(1) of the
Act presupposes that an employer will not alter existing
conditions of employment without first consulting the ex-
clusive bargaining representative selected by his employ-
ees and granting it an opportunity to negotiate on any
proposed changes."
Respondent further argues that, during the negotia-
tions, the Union agreed to the discontinuance of the
merit review system. But, as previously discussed, the
fact that the Union, early on, stated that it did not want
the employees' pay tied to a merit review system under
the bargaining contract does not justify Respondent's
failure to discuss with the Union changes in working
conditions it intended to make before the bargaining con-
tract took effect. In a similar situation, in the Allied Prod-
ucts case, where the employer unilaterally suspended its
merit review program without prior notice to, or consul-
tation with, the union, the Board found that this violated
Section 8(a)(5) of the Act, notwithstanding the fact that
the employer and the union subsequently discussed this
subject during negotiations. See Allied Products Corpora-
tion, Richard Brothers Division, 218 NLRB 1246 (1975).
Based on the above, and the record as a whole, I find
that Respondent, by unilaterally and without consulta-
tion with the Union, after December 1, 1979, discontinu-
ing employee job performance reviews and merit in-
creases, violated Section 8(a)(5) and (1) of the Act.
It is also found that, by telling the employees that by
bringing the Union in, they had lost benefits that they
otherwise might have had, Respondent violated Section
8(a)(1) of the Act.
I have some difficulty with the General Counsel's con-
tention that Respondent's failure to grant merit increases
during the time the Union and Respondent were negoti-
ating for an agreement also violated Section 8(a)(3) of
the Act. See, e.g., Shell Oil Company, Incorporated and
Hawaii Employers' Council, et al., 77 NLRB 1306 (1948);
South Shore Hospital, 245 NLRB 848 (1979), and cases
cited. It may be that these cases are distinguishable from
the present case, or are not applicable here. However, I
find it unnecessary to resolve those questions inasmuch
as the Board has held that a finding that Respondent vio-
lated Section 8(a)(5) in these circumstances requires that
Respondent restore the status quo ante, in any event. See
Allied Products Corporation, supra. Thus the additional
violation would not significantly change the remedy. It
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will therefore be recommended that allegations in the
complaint that Respondent violated Section 8(a)(3) be
dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce within the
meaning of Section 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. At times material to this proceeding, the Union has
been and continues to be the exclusive bargaining repre-
sentative within the meaning of Section 9(a) of the Act
of the employees in the following unit, which is an ap-
propriate unit within the meaning of Section 9(b) of the
Act:
All plant production security personnel performing
plant protection duties as defined by Section 9(b)(3)
of the Act, employed by the Respondent at its Bal-
timore, Maryland facility, but excluding all other
employees and supervisors as defined in the Act.
4. Respondent, by unilaterally, from about December
1, 1979, to June 2, 1980, without consultation or bargain-
ing with the Union, discontinuing its prior practice of
granting employees in the above-described appropriate
unit periodic job performance evaluations and merit
wage increases, violated Section 8(a)(5) and (1) of the
Act.
5. Respondent, by telling employees that they had lost
benefits because they had selected the Union as their bar-
gaining representative violated Section 8(a)(1) of the
Act.
6. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of the Act, it will be recommended
that it be ordered to cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
It having been found that Respondent failed and re-
fused to consult with the Union and give the Union a
reasonable opportunity to bargain on the issue before Re-
-spondent unilaterally discontinued granting employees in
the appropriate unit job performance reviews and merit
wage increases from December 1, 1979, to June 2, 1980,
it will be recommended that Respondent be ordered to
make those employees whole for any loss of wages and
benefits they may have suffered by reason of Respond-
ent's unilateral action, with interest thereon computed as
set forth in Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962). The specific employees affected and
the amount of the wage increases may be determined in
a compliance hearing, if necessary.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER5
The Respondent, Roper Corporation, Baltimore,
Maryland, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively in good
faith with International Union, United Plant Guard
Workers of America (UPGWA), the Union herein, or
any other labor organization which is the exclusive bar-
gaining agent of its employees in an appropriate bargain-
ing unit, by unilaterally altering terms and conditions of
employment without consulting the Union, or such other
representative of its employees involved, and affording
the Union, or such other representative, a reasonable op-
portunity to bargain on such proposed changes.
(b) Telling employees that they would lose, or had
lost, benefits because of employee support for or selec-
tion of a bargaining representative.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights protected by the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
(a) Make whole the employees in the unit found ap-
propriate in the section hereinabove entitled "Conclu-
sions of Law" for any losses they may have suffered by
reason of Respondent's failure to grant job performance
reviews and wage increases, with interest thereon, as
provided in the section hereinabove entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to the effectuation of the Order herein.
(c) Post at its Baltimore, Maryland, facility copies of
the attached notice marked "Appendix."6 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by a representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
6 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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ROPER CORPORATION
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed as to any alleged violations of the
Act not found hereinabove in this Decision.
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