Tampa Electric Company, a wholly owned subsidiary of TECO Energy, Inc., d/b/a TECO People Gas

National Labor Relations Board - Administrative Judge Opinions

Jun 28, 2016

12-CA-144359 (N.L.R.B. Jun. 28, 2016)

JD–60–16
Sarasota, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TAMPA ELECTRIC COMPANY, a wholly
owned subsidiary of TECO ENERGY, INC.
d/b/a TECO PEOPLES GAS
and Cases 12-CA-144359
12-CA-152306
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO,
LOCAL UNION 108
Caroline Leonard and Dallas L. Manuel II, Esqs.,
for the General Counsel.
Thomas M. Gonzalez, Esq. (Thompson, Sizemore,
Gonzalez & Hearing, P.A.), for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Tampa,
Florida, on March 7 and April 25, 2016. Based on timely filed charges by The International
Brotherhood of Electrical Workers, AFL-CIO, Local Union 108 (the Union), the General
Counsel of the National Labor Relations Board (the General Counsel) issued the initial
complaint against Tampa Electric Company, a wholly owned subsidiary of TECO ENERGY,
INC. d/b/a TECO Peoples Gas (the Company or Respondent) on February 16, 2016.
The amended consolidated complaint alleges that a company supervisor and agent
violated Section 8(a)(1) of the National Labor Relations Act (the Act)1 in September 2014 by (1)
coercively interrogating employees about their union sympathies and (2) promising wage
increases in order to induce employees to abandon their support for the Union.2 The complaint
further alleges violations of Section 8(a)(3) and (1) by: (1) withholding annual wage increases in
December 2014 and 2015 because employees voted for the Union as their exclusive collective-
bargaining representative. Finally, the complaint alleges violations of Section 8(a)(5) and (1)
based on (1) the aforementioned changes to the Company’s compensation customary practices

1 29 USC §§ 151-169.
2 All dates refer to 2014 unless otherwise noted.
JD–60–16
Sarasota, FL
2
without providing notice and opportunity to bargain, and (2) the failure and refusal to furnish
merit wage increase information requested by the Union.
The Company denies making any promises of wage increases if employees rejected union
representation or engaging in coercive interrogation about the union, insisting its supervisory and 5
agent statements were merely responsive to questions posed by employees. With respect to the
withholding of wage increases, the Company contends that it held up the customary increases in
order to bargain over wages with the Union, as employees’ newly certified bargaining
representative. The Company further denies discriminating against unit employees, insisting that
wage increases are entirely discretionary. With respect to the Union’s request for merit wage 10
increase information, the Company contends that the information is irrelevant to the Union’s role
but was, in any event, provided to the Union.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Company, I make the following15
FINDINGS OF FACT
I. JURISDICTION
20
The Company, a Florida corporation, is engaged in the sale and distribution of natural gas
to residential and commercial customers at its facility in Sarasota, Florida, where it annually
derives gross revenues in excess of $250,000 and purchases goods and services valued in excess
of $50,000 directly from points outside the State of Florida. The Company admits, and I find,
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of 25
the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Compensation Practices30
The Company, a wholly owned subsidiary of TECO Energy, Inc., d/b/a TECO Peoples
Gas, and a utility specializing in electric and gas delivery, is headquartered in Tampa, Florida.
Its facility in Sarasota, Florida ( the Sarasota Division), is managed by Steven Patterson. The
Sarasota Division includes apprentices, technicians, senior technicians, and utility coordinators, 35
and professional and clerical employees.
Every December since at least 2008, the Company has issued approximately 3 percent
merit wage increases (merit raises) to Sarasota Division employees. The process begins in the
fall of each year with memoranda to “Performance Coaches” regarding a merit budget and 40
timeline for the Company’s performance review and merit wage increase processes (the annual
merit process). Merit raises are usually effective in late December and they typically appear in
the first pay paychecks of the following year. The annual merit budget process is based on
several factors, including performance evaluations. The process is implemented at the division
level and passed on through several management levels until it reaches the Company’s chief45
executive officer and the compensation department.
JD–60–16
3
Merit raises are determined by each employee’s direct supervisor/coach based on that
year’s merit budget established by the Company’s Compensation Department, the employee’s
performance and the employee’s status relative to the salary “midpoint” for their job
classification. The Compensation Department publishes a salary chart indicating the range of 5
acceptable salaries for each job classification, based on surveys of industry standards in the
vicinity. For all utility coordinators, senior utility technicians and apprentice utility technicians
at the Sarasota Division, the range is from 80 percent to 120 percent of the midpoint. The
guidelines provide an exception for exceptional employees, who may earn over 110 percent of
the midpoint based on merit raises or bonuses.10
The company-wide merit budget has been 3 percent since 2009. Patterson’s role in the
annual merit budget process conforms to Company practice. As supervisor and coach for the
Sarasota Division, his performance ratings are based on fixed categories: Unacceptable,
Effective, Commendable and Exceptional. After entering the ratings into the computer 15
database, he enters his recommended merit raises. With one exception, Patterson’s merit raise
recommendations over the past 5 years have ranged between 2.7 percent and 3.2 percent. Those
recommendations are reviewed and almost always approved entirely up the management chain
in the following order: Southern Territory manager Jesus Vega, director of gas operations Rick
Wall, senior vice president William Whale and chief executive officer John Ramil. The final 20
step is a review by the compensation department for conformity with the merit budget.
B. Discussion About Union Representation
The Sarasota Division conducts weekly team meetings every Wednesday led by 25
Patterson on different topics. The first Wednesday of the month is a general meeting covering
numerous topics with presentations by human resource personnel and other speakers. On
September 3, Patterson was away on training. However, employees still convened and heard a
presentation by Eric Shyrock, the human resources officer who services the Sarasota Division,
about the Company’s pension system and its recent purchase of the New Mexico Gas 30
Company.3 Some questions or comments by employees alluded to the unionization or attempted
unionization of the New Mexico Gas Company. Shyrock did not address those questions or
comments. As was his custom, after the presentation, Shyrock remained available to answer
individual questions after the meeting.
35
When the meeting ended, Shyrock was speaking with several employees when Jonathan
Sinkler and Cody Young, apprentices at the time, approached. Young asked him how the New
Mexico Gas Company employees unionized, if that would be possible for Company employees
to unionize, what the benefits were and the protection it would provide employees. He also
alluded to other Company divisions that were already unionized. Shryock replied that it was one 40
of those “tricky subjects,” explaining that the union is something that stands in between
employees and the Company’s human resources office.4

3 Shryock is employed by TECO Energy Services Company, the Company’s parent organization. It is
not disputed that he was an agent pursuant to Section 2(13) of the Act.
4 Shyrock generally corroborated Sinkler’s version about the substance of their conversation, but was
more credible as to what was said by Sinkler and/or Young. Sinkler’s testimony regarding this meeting
JD–60–16
4
At that point, Sinkler mentioned an incident that occurred about 45 days earlier in which
he went to the wrong location in responding to a reported gas leak. As a result of the incident,
Patterson and Vega met with Sinkler. They reviewed the job procedure and explained the
significance of Sinkler’s mistake. Pursuant to protocol, Patterson provided Sinkler with a 5
“Lessons Learned” form and instructed him to complete it. Sinkler was not disciplined, but was
still worried about the possibility of further discipline.5 Shryock, unfamiliar with the incident,
surmised that if Sinkler was going to be disciplined as a result of the incident, he would have
been notified already. As Sinkler walked away, a coworker remarked that Shyrock was “not who
you ask to start a union.610
On September 4, Shryock brought up Sinkler’s inquiry about unionization at a human
resources team meeting.7 Shryock then called Patterson and set up a meeting at the Sarasota
Division the following morning. Patterson was “shocked” to hear that Sinkler had raised issues
regarding the gas leak incident and about interest in unionizing.15
On September 5, Patterson and Shryock met during the morning in Patterson’s office.
After lunch, Patterson and Shryock called Sinkler into Patterson’s office to go over Sinkler’s
completed Lessons Learned form. In accordance with Patterson’s customary practice, Sinkler
read the form out loud and Patterson followed with a discussion about the mistake. 20
After discussing the gas leak incident, Patterson told Sinkler, “I feel like I’ve been left a
little in the dark . . . I end every meeting with a ‘do you all have any issues or concerns for me?’
And we just had midyear performance reviews, and I didn’t hear anything out of anybody.”
Sinkler requested clarification and Patterson replied that Shryock passed along Sinkler’s inquiry 25
about unionizing. Sinkler responded that “[w]e were just joking around talking.” Patterson
asked who else Sinkler was referring to and he revealed it was Young. The discussion had
reverted to the performance issue for a few moments when Patterson asked, “Well, why are you
wanting to unionize?” Sinkler insisted he knew little about unions, but heard that employees at
the Company’s new affiliate in New Mexico were unionized and was curious. Patterson then 30
asked Sinkler, “What do you think a union could do for you?” Sinkler again professed
ignorance of any independent knowledge about unions, but added that he also heard from other
employees that the Company’s Lakeland, Florida employees were covered by a union contract
and received a guaranteed 3 percent raise. Patterson replied, “Well, I can do that for you, bud.”
35
The meeting continued, with the topic of discussion alternating between Sinkler’s
performance and unions. Patterson said at some point, “If I don’t know anything that’s going

was mostly vague and merely paraphrased the conversation. (Tr. 21-23; 192-197.)
5 Sinkler conceded that on cross-examination that his concern about the potential for further discipline
was based on speculation and not any statements on Patterson’s part. (Tr. 50-51.)
6 The testimony by Sinkler and Shryock was fairly consistent regarding this portion of the
conversation. (Tr. 22-23, 44, 47-50, 198-201.)
7 Contrary to Shryock’s assertion, I find that he was instructed to follow up with about the gas leak
incident as a pretext for further information regarding Sinkler’s interest in union affiliation. Shryock’s
testimony that the gas leak issue was “weird” was not credible, since Patterson had already implemented
the counseling and positive discipline through the Lessons Learned exercise. Moreover, Shryock opined
to Sinkler on September 3 that no further disciplinary action was likely.
JD–60–16
5
on, I can’t help to know. If there’s anything that’s going on . . . if you tell me, then I can do
something. If not—maybe, I can’t.” Shryock eventually interjected that it was not a “strong arm
by HR,” that it was just their job to hear what the issues were. Finally, Sinkler asked Patterson,
“Man to man, am I going to lose my job?” Patterson replied that he did not know and was going
to have to run things by “the higher-ups.” 5
Within 10 to 20 minutes after Sinkler departed from the office, Patterson called Sinkler
and asked him to return to the office to change the date on his Lessons Learned form to that
day, instead of the date when he originally turned it in weeks before. A few minutes later,
Sinkler called Shryock, who left Patterson’s office to take the call. Sinkler told Shryock that he 10
did not feel comfortable changing the date since he had already completed the form. Sinkler
was not required to change the date, and no discipline issued from his refusal to do so. 8
C. Employees Choose Union Representation
15
On November 3, the Union filed a petition to serve as the bargaining representative for a
unit consisting of 19 field employees at the Company’s Sarasota Division. The Board conducted
a representation election at the Sarasota Division on December 10. The Union prevailed by a
vote of 16 to 3.
20
On December 19, the Company distributed a memorandum to unit employees sharing its
expectation that the National Labor Relations Board (the Board) would certify the results of the
election. The Company also expressed its disappointment that the Union would be certified as
the unit’s labor representative, preempting the Company’s “opportunity to continue to work
directly with each team member going forward.” It expressed respect for that decision, noting the 25
existence of “union-represented team members at other locations.” With the Union as employee-
members exclusive representative, however, the Company “can no longer routinely convey
status on certain items without first bargaining with the [Union]; like future wage increases,
hours of work, and changes in working conditions. During the collective bargaining process, the
company must maintain the status quo related to these matters. This will be a change from our 30
past routine.” The memorandum concluded with the following “detail:”
1. [The Company] will be promptly reaching out to [the Union] to commence collective
bargaining over your wages, hours, and working conditions.
35
2. A 2015 wage increase cannot be implemented because the increases were not
determined as of the date of certification and therefore are not part of the status quo.
3. Your 2014 Performance Sharing Program (PSP) potential payout will be awarded
during the first quarter of 2015, as this program was determined before the date of 40
election certification and therefore is part of the status quo.

8 Although portions of Sinkler’s testimony were vague, I credit his version of the September 5th
meeting, which was partially corroborated by Shyrock. (Tr. 24-29, 63-65, 73-75, 215-218, 221-223, 226-
228, 241-246.) Patterson’s recollection, on the other hand, that he merely asked if Sinkler had any more
questions regarding the Union, was inconsistent with Shryock’s testimony regarding the timing of the
meeting and Patterson’s attempt to have Sinkler return to the meeting after it concluded. (Tr. 276-277.)
JD–60–16
6
4. Your Paid Time Off (PTO) benefit announced September 16, 214 will continue to be
implemented effective January 1, 2015, as this benefit change was announced to all
Sarasota team members well before the certification date and therefore is a part of the
status quo.5
5. [The Company] will continue to maintain all other existing working conditions until
such time as either a CBA is achieved or business changes occur that fall within our
right to manage the operations.9
10
The Company received notice of the Union’s certification on December 23. Since that
date, the Union has been the labor representative of employees in the following bargaining unit
(unit employees):
All full-time and regular part-time utility coordinators, senior utility technicians, utility 15
technicians and apprentice technicians employed by the Employer at its facility in
Sarasota, Florida excluding all other employees, professional, warehouse and office
clerical employees, engineers, managers, guards and supervisors as defined in the Act.
On December 29, Paul Davis, the Company’s director of employee relations, reached 20
out in an email to the Union’s business manager, Floyd Suggs. Suggs responded that afternoon,
requesting bargaining dates, certain information to prepare for bargaining, and that “if any pay
rasie [sic] or bonus are schedule [sic] please pay these employees theirs.10
D. The Company withholds 2015 Merit Raises from the Unit employees25
In October 2014, the Company initiated the process for the 2015 merit budget. On
October 24, the compensation department notified supervisors/coaches of the timeline, including
the effective date for wage increases on December 22, 2014. On November 13, the compensation
department notified supervisors/coaches of the implementation of a 3 percent merit budget, 30
“effective November 10th,” and their ability to enter the applicable data in the Company’s
computer system on November 18.
In November, Patterson conducted year-end performance review meetings with the
Sarasota Division’s employees and entered his overall performance rating and merit raise 35
percentage recommendations for each employee into the Company’s database. Vega completed
his review of Patterson’s recommendations by December 8.11
In accordance with the timeline, Wall and Whale completed their reviews and approvals
of Patterson’s recommendations for the Sarasota Division raise percentages by December 11. 40
On December 15, however, the Sarasota Division recommendations were “Rejected.”12

9 Jt. Exh. 10.
10 GC Exh. 3(a)-(b).
11 Jt. Exh. 8(c).
12 GC Exh. 8.
JD–60–16
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On December 19, the compensation department issued its final memorandum of the
year, indicating that the annual merit process was complete and that the 2015 merit raises had
been approved. That day, Patterson read a different memorandum to the employees of the
Sarasota Division, signed by Whale and senior vice president–corporate services and chief
human resources officer Phil Barringer, stating in pertinent part:5
Please be advised that the Company expects the NLRB to certify the results of
the representation election conducted December 10, 2014. As a result of this
election, all Sarasota Division Apprentices, Utility Technicians, Sr. Utility
Technicians, and Utility Coordinators will be exclusively represented by the 10
International Brotherhood of Electrical Workers (IBEW), Local 108.
We and your management team are disappointed in this outcome. …
For your information, with the IBEW elected as your exclusive representation 15
[sic], Peoples Gas can no longer routinely convey status on certain items without
first bargaining with the IBEW; like future wage increases, hours of work, and
changes in working conditions. During the collective bargaining process, the
company must maintain the status quo related to these matters. This will be a
change from our past routine. . . .20
2. A 2015 wage increase cannot be implemented because the increases were not
determined as of the date of certification and therefore are not part of the status
quo.
25
3. Your 2014 Performance Sharing Program (PSP) potential payout will be
awarded during the first quarter of 2015, as this program was determined before
the date of election certification and therefore is part of the status quo.
The Company paid merit raises to its unrepresented employees for the year 201530
commencing on December 22. The Company did not, however, pay the 2015 merit raises to unit
employees at that time.
E. Bargaining And Request For Information
35
Upon learning that unit employees did not receive the customary merit raises given to
nonunit employees on or after December 22, the Union filed the original charge in Case
12-CA-144359 on January 13, 2015.
In late January, the Company furnished the Union with the information requested on 40
December 29 and the parties discussed bargaining dates. The initial bargaining session occurred
on March 26, 2015. The negotiations included the wages to be paid in 2015, but the parties did
not discuss merit raises at that session.
The second day of bargaining took place on May 8, 2015. The Company’s labor 45
counsel, Thomas Gonzalez, offered to settle Case 12-CA-144359 in conjunction with an
agreement on a 2015 merit raise for unit members. The Union proposed a 5 percent retroactive
JD–60–16
8
raise “across the board” for 2015, and a similar 5 percent raise for 2016 if no contract was
reached by the end of the year. The increases were to be paid in addition to the merit raise that
would be paid to unit members for 2015. The Union did not propose the continuation of annual
merit raises.
5
The parties negotiated over the percentage of merit raises, with the Company at 2.5
percent and the Union at 3 percent. The Union then requested the high, low, and average raise
percentages given to the four nonunit Sarasota Division employees for 2015, and the Company
furnished those numbers even while asserting that they were not comparable. Bowden then
requested that the Company furnish the high, low, and average merit raise percentages given to 10
unrepresented employees at the Tampa Division of Peoples Gas for 2015. Davis rejected the
request because it was not relevant to wage negotiations for Sarasota Division employees.
Bowden disagreed, insisting the request was a relevant consideration in negotiating a wage
increases for unit employees. The Company did not relent and bargaining moved on to other
topics. 1315
On May 11, 2015, Bowden emailed Davis renewing the Union’s demand for the wage
increase data. The information sought “the low percent awarded, the high percent awarded, and
average percent awarded for the 2014 merit amounts paid to the Tampa Division [Company]
employees.” Davis replied on May 12, 2015, refusing the request “because the data are not 20
relevant or necessary to the union’s representation of the bargaining unit. Moreover, this
information is confidential in the hands of the Company.” Davis provided a further explanation
distinguishing the current situation from the 2014 merit pay plan:
As you know, under the pay plan the company designated an amount of money which 25
would be available for payment of raises. In the 2014 year, that amount was equal to 3%
of payroll. Each division made decisions as to the raises that would be paid to each
individual employee, exercising discretion based on several factors. PGS Operations did
not have to spend all of the money and the 3% average was to be determined across all
divisions. There is no relationship between different divisions as to the particular raise 30
awarded to a particular employee, or between individual employees of those divisions.
We previously have provided information concerning the merit raises awarded to non-
bargaining unit employees at the Sarasota Division. These data were relevant because the
total amount of money available for increases was to be distributed on a division-wide 35
basis, and not just among bargaining unit members. But data relating to other divisions
had no impact on or relevance to the merit increases that were given under the merit pay
plan.
Bowden replied the following day, insisting the requested information was relevant and 40
disagreeing with the distinction made by the Company regarding wages paid to employees in its
different divisions:

13 This finding is based on the credible and undisputed testimony of Robert Thomas, the Union’s
assistant business manager. (Tr. 83-84, 88, 107-108, 110-111.)
JD–60–16
9
The same information on the Tampa Division will show what was given to all employees,
and resolve your concern on the relevance of the Sarasota data because of only four
samples. The Union respectfully demands that the information on the 2014 Tampa
Division merit amounts be provided.
5
The parties also bargained on May 13, 2015. During a break, Bowden approached Davis
and asked him if he planned to provide the requested wage data for the Tampa Division. Davis
replied that he was not going to provide it upon advice of counsel. Bowden informed Davis that
the Union would file a Board charge. The following day, Bowden filed a charge in Case
12-CA-152306. Four days later, the Region indefinitely postponed the hearing scheduled for 10
June 1, 2015, in Case 12-CA–144359, one of several that would follow.
Three bargaining sessions later, on August 25, 2015, the Company announced its
intention to pay the 2015 merit budget increases to the unit employees, retroactive to December
22, based on the percentages that had been recommended as of December 10: 15
2015 Wages: The company is concerned with the pace of negotiations and since it is
now the end of August, we feel that it is important that we get something finalized
for this year (2015) and beyond for wages. And most importantly for wages, we
have been talking to the NLRB to resolve the ULPs. Which includes compensation 20
for 2015, and have been unable to resolve the matter based on the Board’s
insistence to include charges the company did not commit. Therefore, the company
is going to do the following:
a. Pay the 2015 merit increases, which were recommended but not 25
finalized on December 10, 2014, treating that recommendation as the
final amount and paying retro-active to December 22, 2014.
b. For those individuals who have been promoted since December 22, 2015, the
company will provide what it considers to be the status-quo NCNE Wage
& Skill Progression plan. Promotion base wage increases will not be affected 30
by the percentage wage increase.
Unit employees finally received the 2015 raises in their paychecks for the August 31 to
September 13, 2015 pay period, retroactive to December 22.
35
F. The Company Withholds Merit Increases for 2016
The Compensation Department issued its memoranda regarding the 2016 annual merit
process on October 23, 2015, November 13, 2015, and December 16, 2015. Patterson performed
the year-end performance evaluations for unit employees in November 2015, but did not enter 40
any merit raise percentages into the database. The Company did pay 2016 merit raises to its
unrepresented employees retroactive to December 21, 2015, but excluded unit employees on the
ground that the parties were still negotiating for the initial contract.
45
JD–60–16
10
LEGAL ANALYSIS
I. The September 5th Meeting
The General Counsel contends that Patterson and Shyrock violated Section 8(a)(1) by: 5
(1) interrogating Sinkler about support for union representation by Sinkler and other employees;
and (2) promising Sinkler that employees would receive an annual wage increase of 3 percent if
they refrained from supporting the Union. The Company denies that Patterson promised Sinkler
a 3 percent wage increase if he opposed unionization. With respect to the alleged interrogation,
the Company contends that Patterson merely followed up with Sinkler about his previous inquiry 10
regarding unionization.
In determining whether questioning of an employee about protected activity is lawful,
the Board considers whether, under all the circumstances, the interrogation reasonably tends to
interfere with, restrain, or coerce employees in the exercise rights guaranteed by the Act.15
Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Union Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985); See also 800 River Rd. Operating Co. LLC v. NLRB, 784
F.3d 902, 913 (3d Cir. 2015). Factors considered under this analysis include the identity of the
questioner, the place and method of the interrogation, the background of the questioning, and the
nature of the information sought. Stevens Creek Chrysler Jeep Dodge, 353 NLRB 1294, 1295 20
(2009), enfd. sub nom. Mathew Enterprise, Inc. v. NLRB, 771 F.3d 812 (D.C. Cir. 2014).
Patterson, Sinkler’s direct supervisor, summoned him to a meeting in his office on
September 5 to discuss a work incident. Patterson, accompanied by Shryock, incorporated that
discussion into one about Sinkler’s questions about unionization on September 3. After Sinkler
responded that he was just joking with a coworker, Patterson elicited the name of the other 25
employee. During further discussion about Sinkler’s performance, Patterson asked Sinkler why
he wanted to unionize. After Sinkler explained that company employees at another facility
unionized and received a 3 percent raise, Patterson replied, “Well, I can do that for you, bud.”
He further remarked, “if I don’t know anything that’s going on, I can’t help to know.” Shryock
added that they were not trying to “strong arm” Sinkler and were just trying to elicit the issues. 30
Before the meeting concluded, Sinkler asked Patterson if his job was at risk. Patterson replied
that he would have to consult with upper management. Ratcheting up the pressure regarding a
the possibility of further investigation into the gas leak incident, Patterson called Sinkler a short
while later and asked him to return to the office to backdate the form. Sinkler refused but the
message was clear: Petterson’s investigation into the gas leak incident was not over. 35
Patterson’s statement suggesting he could provide Sinkler with a 3 percent raise
constituted an unlawful promise of a benefit in order to sway Sinkler’s support for union
representation. Valerie Manor, Inc. & New England Health Care Employees Union, District
1199, SEIU, 351 NLRB 1306, 1310 (2007) (employer’s promise to talk about giving raises 40
constituted an unfair labor practice under section 8(a)(1)).
Regarding Sinkler’s interest in a union, he opened the proverbial door in his discussion
with Shryock 2 days earlier. However, Patterson jumped on Sinkler’s question and pulled him
into a full throttled discussion mixing Sinkler’s performance problem with an inquiry as to the
reasons for his interest in unionization, as well as that of coworkers. This conversation with 45
JD–60–16
11
Sinkler, an apprentice, held in Patterson’s office, concluded with a reasonable belief on Sinkler’s
part that he might receive further discipline as a result of his responses.
Under the circumstances, Patterson’s interrogation constituted coercive interrogation in
violation of Section 8(a)(1) of the Act. Fixtures Manufacturing Corp., 332 NLRB 565 (2000)
(supervisor unlawfully coerced employee during an interrogation by warning that employee 5
would “have to deal with it” if he distributed union literature).
II. The Withholding Of Customary Wage Increases
The complaint alleges that the Company violated Section 8(a)(5) and (1) of the Act by
withholding customary annual merit wage increases in December 2014 and 2015 without notice 10
to the newly certified Union and affording it an opportunity to bargain over the change.
Furthermore, by discontinuing such a practice, while continuing it for unrepresented employees,
the Company allegedly discriminated against represented employees in violation of Section
8(a)(3). The Company contends that it was compelled to hold up the customary increases in
order to bargain over wages with the Union as employees’ newly certified bargaining 15
representative.
Sections 8(a)(5) and 8(d) of the Act oblige an employer that is party to a collective-
bargaining relationship to bargain in good faith over “wages, hours, and other terms and
conditions of employment.” Under such circumstances, an employer violates Section 8(a)(5) if 20
it unilaterally changes a term or condition of employment without first providing the union with
notice or an opportunity to bargain. NLRB v. Katz, 369 U.S. 736, 747 (1962). Thus, where a
past practice of adjusting wages constitutes a term or condition of employment, the unilateral
discontinuance of that practice violates Section 8(a)(5). Daily News of Los Angeles, 315 NLRB
1236 (1994), enfd. 73 F.3d 406 (D.C. Cir. 1996), cert. denied 519 U.S. 1090 (1997). 25
It is undisputed that in December 2014 and 2015 the Company withheld wage increases
from unit employees. It is also undisputed that the Company unilaterally withheld unit
employees’ 2015 evaluations without giving the Union notice and an opportunity to bargain
over the change. The only issue is whether the Company’s merit raises constituted an 30
established practice regularly expected by employees, and hence a term or condition of
employment. See United Rentals, Inc., 349 NLRB 853, 855 (2007) (employer’s customary
“practice of conducting merit reviews and adjusting wages based on those reviews and other
fixed criteria” constitutes a term or condition of employment); Daily News of Los Angeles,
supra at 1236 (merit wage-increase program constitutes a term or condition of employment 35
“when it is an ‘established practice . . . regularly expected by the employees’”); See also NLRB
v. Beverly Enterprises-Massachusetts, Inc., 174 F.3d 13, 28 (1st Cir. 1999) (same)
The factors relevant to this determination include “the number of years that the program
has been in place, the regularity with which raises are granted, and whether the employer used 40
fixed criteria to determine whether an employee will receive a raise, and the amount thereof.”
Daily News, supra at 1236; See also Mission Foods & United Food & Commercial Workers
Int'l Union Local 99, CLC, 350 NLRB 336, 337 (2007).
45
JD–60–16
12
The Company has utilized a merit budget process since at least 2008 and merit raises
pursuant to that practice were regularly granted in December of each year. In addition, the
Company used fixed criteria to determine whether an employee will receive a raise, and the
amount thereof. The Company’s system of granting merit increases was based on several fixed
criteria with four categories (Unacceptable, Effective, Commendable, and Exceptional) to 5
determine the percentage of budget going to wage increases, as well as the employee’s position,
grade, salary band, and performance rating (itself arrived at through a structured process based
on objective criteria) to determine recommended merit increases. Moreover, the Company
regularly uses the same tool, the percentage suggested by the employee’s “coach” and the merit
budget established by the compensation department, in analyzing wage increase factors. Thus, 10
all three factors relevant to determining whether the Company’s merit budget was an
established practice regularly expected by its employees have been met here.
The Company’s 2015 and 2016 merit budget processes consisted of the performance of
annual employee evaluations and granting merit-based wage increases, utilizing discretion based 15
on its merit budget process of supervisory reviews and categories of grades that each supervisor
was required to give. Such an approach meant, however, that the Company’s merit raises “were
not completely discretionary because they were based on fixed criterion of merit.” See Daily
News of Los Angeles, 315 NLRB at 1236 (wage increases were based a calculus from a “merit
matrix” based on performance ratings and salary ranges). 20
Under the circumstances, the Company’s failure to implement the annual merit budget
processes in December 2014 and 2015 by refusing to grant merit raises to unit employees at its
Sarasota Division constituted an unlawful unilateral change to the established terms and
conditions of their employment in violation of Section 8(a)(5) and (1) of the Act. 25
In United Rentals, Inc., Members Liebman and Kirsanow adopted the judge’s finding that
such an unlawful unilateral change by an employer also violates Section 8(a)(3), while Member
Schaumber found it unnecessary to pass on that issue since it would not materially affect the
remedy. Member Liebman’s concurrence was based solely on the discriminatory nature of the 30
unilateral change, while Member Kirsanow’s relied on the commission of independent Section
8(a)(1) violations as evidence of animus. 349 NLRB at 855, fn. 17.
The Liebman and Kirsanow tests for establishing a 8(a)(3) violation were met here since
Sinkler was coercively interrogated by Patterson, a manager directly involved in the 35
implementation of the 2015 merit budget process. In addition, after employees voted
overwhelmingly for union representation, the Company sent employees a memorandum in
December 2014 expressing disappointment in the result and announcing changes to their terms
and conditions of employment. As a result, the Company proceeded to deprive Sinkler and other
unit employees merit increases in December 2014 and 2015 while awarding them to 40
unrepresented employees.
Under the circumstances, the Company also discriminated against unit employees in
violation of Section 8(a)(3) and (1) by failing to give them merit raises in December 2014 and
2015, while continuing to do so for unrepresented employees.45
JD–60–16
13
III. The Company’s Failure To Provide Information
The complaint also alleges that the Company violated Section 8(a)(5) of the Act by
failing and refusing to provide information relating requested by the Union verbally on May 8,
documented in an email on May 11, and repeated in an email on May 13, 2015. The Company 5
contends that the information sought—the high, low, and average 2015 merit raise percentages
awarded to nonunit employees in the Tampa Peoples Gas Division—was irrelevant.
An employer is obliged to provide information that is needed by its employees’
bargaining representative for the proper performance of its duties and the employer should 10
response as promptly as circumstances allow. NLRB v. Acme Indus. Co., 385 U.S. 432, 435–436
(1967); See also Good Life Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993), and Woodland
Clinic, 331 NLRB 735, 737 (2000). Information regarding terms and conditions of employment
is presumed relevant but nonunit requests must be more precise. In Re West Penn Power 20 Co.,
supra at 597 (citing FMC Corp., 290 NLRB 483, 489 (1988)); See also Ohio Power Co., 216 15
NLRB 987, 991 (1975) (information pertaining to subcontractors, i.e., nonunit employees, in the
collective-bargaining agreement was relevant for the union to interpret and determine whether
there was a grievance relating to that clause). The union has the burden, albeit rather low, of
demonstrating the relevance of the requested information and the union’s theory must be
reasonably specific. Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1099 (1st Cir. 1981). 20
See also Dahl Fish Co., 279 NLRB 1084, 1102 (1986) (information regarding employees at a
different factory deemed relevant under the circumstances) and Dodger Theatricals Holdings,
Inc. & Its Successor Dodger Theatricals, Ltd. & Actors Equity Assn., 347 NLRB 953, 967 (2006)
(the standard only requires a showing of probability that the desired information is relevant and it
would be of use to the Union in carrying out its statutory duties and responsibilities). 25
The Tampa Division’s wage information was a reasonable gauge for the Union’s
consideration in negotiating for an appropriate wage increase for unit employees in the Sarasota
Division since they all fell under the umbrella of the Tampa Electric Company’s annual merit
process for all of its entities. Moreover, the union’s demand alluded to the Company’s apparent 30
reference to the limited value in the wage increase information it provided for the 4 nonunit
employees in the Sarasota Division. Thus, the Union’s rationale for the request—using the
information as a gauge in negotiating wage increases for unit members—was reasonable and
satisfied the very low burden that the union bore. Under the circumstances, the Company
violated Section 8(a)(5) and (1) of the Act by refusing to provide the requested wage data to the 35
union’s representative.
CONCLUSIONS OF LAW
1. Respondent Tampa Electric Company, d/b/a TECO Peoples Gas is an employer 40
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers, AFL–CIO, Local Union 108 is a
labor organization within the meaning of Section 2(5) of the Act and serves as the labor
representative of Respondent’s employees in the following bargaining unit:45
JD–60–16
14
All full-time and regular part-time utility coordinators, senior utility technicians, utility
technicians and apprentice technicians employed by the Employer at its facility in
Sarasota, Florida excluding all other employees, professional, warehouse and office
clerical employees, engineers, managers, guards and supervisors as defined in the Act.
5
3. Respondent coercively interrogated employee Robert Sinkler on September 5, 2014,
about his sympathies and interests, as well as those of other employees, for union representation
in violation of Section 8(a)(1) of the Act.
4. Respondent promised employee Robert Sinkler a wage increase in order to encourage 10
him to abandon his support for union representation in violation of Section 8(a)(1) of the Act.
5. By eliminating annual merit raises due in December 2014 and 2015 for employees in
the bargaining unit without first notifying the Union and giving it an opportunity to bargain, and
by attributing that unilateral change to employees’ terms and conditions to their Union 15
representation, the Respondent violated Sections 8(a)(5), (3), and (1) of the Act.
6. By failing and refusing to furnish wage increase information for the Respondent’s
Tampa Division requested by the Union on May 11, 2015, the Respondent violated Section
8(a)(5) and (1) of the Act.20
7. The aforementioned unfair labor practices affected commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY25
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended14
ORDER
The Respondent, Tampa Electric Company, d/b/a TECO Peoples Gas, Sarasota, Florida, 35
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union support or union activities.40

14 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 in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–60–16
15
(b) Promising employees wage increases or other benefits to encourage them to abandon
their support for International Brotherhood of Electrical Workers, AFL–CIO, Local Union 108
(the Union) or any other union.
(c) Eliminating annual merit raises or making other changes to the terms and conditions 5
of employment of employees in the following bargaining unit, without first notifying the Union
and giving the Union the opportunity to bargain:
All full-time and regular part-time utility coordinators, senior utility technicians, utility
technicians and apprentice technicians employed by the Employer at its facility in 10
Sarasota, Florida excluding all other employees, professional, warehouse and office
clerical employees, engineers, managers, guards and supervisors as defined in the Act.
(d) Eliminating your annual merit wage increases because you selected the Union as your
exclusive collective-bargaining representative.15
(e) Failing and refusing to furnish merit wage increase information requested by the
Union which is relevant and necessary to its duties as labor representative of the Sarasota
Division’s unit employees.
20
(f) In any like or related manner interfere with, restrain, or coerce you in the exercise of
the rights guaranteed you by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
25
(a) Within 14 days of a request by the Union, furnish the merit raise information
requested by the Union on May 11, 2015.
(b) Make employees in the bargaining unit whole for any loss of earnings and other
benefits incurred as a result of the Respondent’s elimination of their annual merit wage increases 30
for the years 2015 and 2016, with interest, to the extent the Respondent has not already done so.
(c) File a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
35
(d) Compensate employees in the above unit for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering periods longer than 1 year.
(e) On request, bargain with the Union and put in writing and sign any agreement reached
on terms and conditions of employment for employees in the bargaining unit.40
(f) Within 14 days after service by the Region, post at its facility in Sarasota, Florida,
copies of the attached notice marked “Appendix.”15 Copies of the notice, on forms provided by

15 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
JD–60–16
16
the Regional Director for Region 12, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the 5
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and 10
former employees employed by the Respondent at any time since September 5, 2014.
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.15
Dated, Washington, D.C. June 28, 2016
___________________________20
Michael A. Rosas
Administrative Law Judge

Board.”
JD–60–16
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT coercively question you about your union support or activities, or other
employees’ union activities or sympathies.
WE WILL NOT promise you wage increases or other benefits to encourage you to abandon your
support for International Brotherhood of Electrical Workers, AFL–CIO, Local Union 108 (the
Union) or any other union.
WE WILL NOT eliminate annual merit raises or make other changes to the terms and conditions
of employment of our employees in the following bargaining unit, without first notifying the
Union and giving the Union the opportunity to bargain with us:
All full-time and regular part-time utility coordinators, senior utility technicians, utility
technicians and apprentice technicians employed by the Employer at its facility in
Sarasota, Florida excluding all other employees, professional, warehouse and office
clerical employees, engineers, managers, guards and supervisors as defined in the Act.
WE WILL NOT eliminate your annual merit raises because you selected the Union as your
exclusive collective-bargaining representative.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL make our employees in the above unit whole for any loss of earnings and other
benefits incurred as a result of our elimination of their annual merit raises for the years 2015 and
2016, with interest, to the extent we have not already done so.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
JD–60–16
WE WILL compensate employees in the above unit for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering periods longer than 1 year.
WE WILL, within 14 days of request by the Union, furnish the merit raise information requested
by the Union on May 11, 2015.
WE WILL, on request, bargain with the Union and put in writing and sign any agreement
reached on terms and conditions of employment for our employees in the bargaining unit.
Tampa Electric Company
d/b/a TECO Peoples Gas
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
South Trust Plaza, 201 East Kennedy Boulevard, Ste 530, Tampa, FL 33602-5824
(813) 228-2641, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/12-CA-144359 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (813) 228-2455.