The Berry Schools and Gordon Carper

National Labor Relations Board - Board Decisions

Jan 2, 1979

239 N.L.R.B. 1160 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Berry Schools and Gordon Carper. Case 10-CA-
12917
January 2, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On August 9, 1978, Administrative Law Judge Jer-
ry B. Stone issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and Respondent filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent did not violate Section 8(a)(1) of the Act by
granting the Charging Party, Dr. Gordon Carper, a
substandard salary increase for the academic year
1977-78. We disagree for the reasons stated below.
The operative facts are fully described in the Deci-
sion of the Administrative Law Judge. Respondent is
a Georgia corporation conducting a 4-year college
and a preparatory academy at Mount Berry, Geor-
gia. Dr. Carper was hired by Respondent in 1965 to
head the social science department at Berry College.
He held the position of department chairman or, as it
was called prior to 1969, department head, until
1975, when he was removed by Respondent's presi-
dent, John Bertrand.2 The student body of Benry Col-
lege elected Dr. Carper "Faculty Staff Member of
the Year" for the school year 1974-75. Of 79 faculty
members, Dr. Carper was I of the 4 named a Dana
Professor, which is a distinguished endowed chair.'
From 1965 to 1975, Dr. Carper consistently received
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces 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
2 The removal of Dr. Carper from the position of department chairman
was one of the subjects of an earlier unfair labor practice charge. See The
Berry Schools, 234 NLRB 942 (1978), herein referred to as Berrv-I
3 The other Dana Professors are Dr. Julian Shand, chairman of the phys-
ics department; Dr. William Hoyt, chairman of the religion and phili.oph)
department; and Dr. Kenneth Hancock, chairman of the biolog) depart-
ment.
"excellent" or "good to excellent" annual evaluations
from his superiors. In fact, Respondent admitted in
its brief in Berry-I that "Carper is an outstanding
scholar and teacher." In the instant case, Respondent
stipulated that Dr. Carper's abilities have not
changed since April 1975, when it considered him to
be an outstanding scholar and teacher and to be ef-
fective in his teaching and his scholarly research and
writing. Accordingly, we find, in agreement with the
Administrative Law Judge, that Dr. Carper was, and
is, an outstanding scholar and teacher and performed
as such at all times material herein.
As noted by the Administrative Law Judge, the
issues in the instant case are related to events in-
volved in Berry-I. The facts recited there will not be
repeated in detail here. It is sufficient for our pur-
poses to state that in March 1975 approximately 40
"concerned faculty members" met to discuss their
reactions to Respondent's announcement that only a
"modest" pay increase was projected for the follow-
ing year. As a result thereof, an ad hoc committee
was formed to study the feasibility of collective bar-
gaining, which Dr. Carper was appointed to chair.
Thereafter, Respondent commenced its campaign
against the idea of collective bargaining. Respon-
dent's president, Bertrand, spoke to the faculty and
criticized the actions of the "concerned faculty mem-
bers," stating that collective-bargaining was out of
place on any college campus and was particularly out
of place at Berry College. He referred to a "small
power bloc" allegedly seeking to control the entire
faculty. During the course of its campaign against
the idea of collective bargaining, Respondent began
to take action against those it identified as part of the
"small power bloc." Thus, it unlawfully denied Dr.
Joyce Jackson, who chaired the "concerned faculty"
meeting, promotion to full professor. 4 On April 15,
1975, Respondent also removed Dr. Carper from his
position as chairman of the social science depart-
ment.5 Dr. Carper's replacement as department
chairman was Dr. Robert Geisel, an associate profes-
sor of sociology, who figures prominently in the
events which followed.
Dr. Carper continued to exercise his Section 7
nghts, including his efforts to increase faculty sala-
ries. In January 1976,6 Dr. Carper was evaluated by
his new department chairman, Geisel, who rated him
"average-below average." Thus, after 10 consecutive
annual evaluations rating Dr. Carper "excellent" or
"good to excellent," Dr. Carper received his first sub-
par evaluation, the year after he headed the ad hoc
4 See Berry I. supra
Id
' Evaluations conducted dunng January 1976 were used in determining
salaries for the 1976-77 school year. Similarly, January 1977 evaluations
were used in determining salanes for the 1977 78 school year.
1160
THE BERRY SCHOOLS
committee to study collective bargaining. One year
later, Dr. Carper again received a subpar evaluation
from his superiors, who rated him "below average,"
the lowest possible rating. Interestingly, Geisel also
indicated on the 1977 evaluation that Dr. Carper
should not be continued in his position, although
also noting that he "holds tenure." Geisel, who testi-
fied that Berry College is a teaching institution and
that teaching is the primary criterion he uses to eval-
uate faculty members in his department, thus evalu-
ated an admitted "outstanding scholar and teacher"
as not meriting retention.
Although Geisel testified that he did not "have any
reason to question . . . Dr. Carper's ability as a
teacher," he also stated under oath during the inves-
tigation of the cases that he rated Dr. Carper as
either minimal or below average in the areas of cam-
pus activity and community activity.7 However,
when questioned about that statement on cross-ex-
amination, Geisel could not name any faculty mem-
ber in his department whose campus and community
activities were superior to those of Dr. Carper. Rath-
er, Geisel justified his "below average" evaluation of
Dr. Carper on eight separate grounds, to wit: that
Dr. Carper (I) failed to return certain departmental
forms in a timely fashion; (2) made certain deroga-
tory statements concerning two recently hired de-
partment members; (3) submitted a grade for a stu-
dent he was not assigned to supervise; (4) did not
follow department rules concerning the handling of
student evaluation forms; (5) did not keep appoint-
ments he made with students; (6) refused to teach a
class scheduled for 8 a.m.; (7) "hassled" or "intimi-
dated" certain of his student advisees into registering
for certain classes; and (8) used class time for a "po-
litical forum" to state his 'opinion of the Berry Col-
lege administration. Apart from the first grounds,
which was not disputed, the Administrative Law
Judge credited Dr. Carper's explanations fo; each
item but nonetheless found that Dr. Geisel believed
these problems to be real and that Geisel based his
evaluation of Dr. Carper on such belief. Notwith-
standing this finding, to which we defer, we believe
the Administrative Law Judge failed to consider the
fact that Dr. Carper was independently evaluated by
the associate dean for arts and sciences, Dr. Barbara
Abels, who also rated Carper "below average."
Dean Abels testified that in giving Dr. Carper a
"below average" rating she gave a "rather heavy
Geiscl testified that the cnterina he used in evaluating members of his
department were teaching. which he regarded as the most important. re-
search and writing; service to the institution; academic achievement: and
professional growth. In amplifying his testimony. Geisel explained that the
teaching critenon included "relations with the college, duties within a de-
partment, advising, and of course class activities themselves'"
weight" to the evaluation rating given him by Dr.
Geisel because she had not been in her position very
long. However, Abels further testified that she also
considered three "events" in arriving at Dr. Carper's
rating, to wit: (1) he changed the meeting time and
place for "some" of his classes; (2) his workload was
"among the lowest" of the full-time faculty in his
department; and (3) he "complained bitterly" about
teaching 8 a.m. classes. We note that the first two
"events" cited by Dean Abels simply were not as she
characterized them. The record reveals that Dr.
Carper's workload was above the department aver-
age and that, as found by the Administrative Law
Judge, he had been given permission by Dr. Geisel to
change the time and place of one particular class,
History 432, which the record also shows was the
only class so altered. As to his "complaining bitterly"
about teaching an 8 a.m. class, the Administrative
Law Judge found, and we agree, that Dr. Carper had
reason to argue against the setting of that class for
that time and that the administrative should have un-
derstood his concerns.
Moreover, both Geisel's and Abels' ratings of Dr.
Carper were reviewed and approved by Doyle Math-
is, vice president and dean of the college; Joe Wal-
ton, controller and director of finance; Dale Davis,
director of management and planning; and President
Bertrand, who then collectively determined the sal-
ary increase to be received by Carper. In making the
initial tentative determination of the amount each fa-
culty member's salary would be increased, Mathis,
Walton, and Davis relied primarily on the evalua-
tions.8 President Bertrand, who reviewed the tenta-
tive determinations before they became final, did not
question or alter most of the recommendations, in-
cluding that for Dr. Carper. Accordingly, we find
that, in general, wage increases are directly corre-
lated to the ratings received by each faculty member
on his or her evaluation. 9
We further find that the evaluation ratings are gen-
erally correlated to merit. Several witnesses testified
that in evaluating a faculty member the department
heads generally utilize the same criteria set forth in
the faculty handbook for use in making promotion
and tenure decisions. These criteria are teaching ex-
cellence, service to the institution, academic achieve-
| Respondent excepts to the Administrative Law Judge's finding that ner-
it and salaries are only roughly correlated. We find it unnecessary to de-
termine whether the Administrative Law Judge was correct, as we believe
that the relevant inquiry herein is not whether salanes correlate to merit but
is whether salary increases are correlated to the results of the annual evalua-
tions and. if so. whether the annual evaluation results are correlated to
merit. For reasons that follow. we answer both inquiries in the affirmative.
We do not mean to imply that all faculty members who received the
same evaluation rating received identical salary increases. Rather, we find
that generally an above-average rating would lead to an above-average wage
increase, an average rating to an average wage increase, and a below-aver-
age rating to a below-average wage Increase.
1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, and professional growth. No evidence appears
in the record to show that department chairmen con-
sidered criteria unrelated to merit, even considering
Respondent's statement in its brief that each chair-
man is "free to consider other related factors directly
reflecting on an individual's total job performance."
We note that Respondent's animus toward em-
ployee exercise of protected concerted rights is well
documented by the record and by the Board's deci-
sion in Berry-I. Thus, in addition to setting forth the
animus findings in Berry-I,'° the Administrative Law
Judge found that a June 20, 1977, conversation be-
tween President Bertrand and Chalmers L. Brum-
baugh Ill reflected animus toward employee exercise
of protected concerted rights. Brumbaugh's credited
testimony supporting this finding is as follows:
THE WITNESS: He told me that he deplored
any faculty member who instigated students to
criticize him or the administration, that he dep-
lored any faculty member who urged students to
transfer from Berry College and that he dep-
lored any faculty member who went to the
NLRB or the AAUP for aid and assistance. He
also said that if I went to the AAUP or the
NLRB for assistance that my name would be
plastered all over the country and no one would
want to hire me. So he urged that I not do so.
He then also urged me about three times that
if I ever disappointed him in any way that he
would withdraw all his positive support for my
candidacy to find a job elsewhere.
The Administrative Law Judge found that Bertrand's
remarks concerning the deploring of faculty mem-
bers who went to the NLRB or the AAUP for assis-
tance did not, "in and of themselves," constitute an
expression of animus. Additionally, he found that
Betrand's remark that, if Brumbaugh went to the
NLRB or the AAUP his name would be plastered all
over the country, was not "intended to convey that
the Respondent would cause Brumbaugh's name to
be plastered all over the country." Lastly, the Ad-
ministrative Law Judge found that Bertrand's threat
to withdraw support for Brumbaugh's candidacy if
he was ever disappointed in Brumbaugh, in the con-
text of the total conversation, was an expression of
animus toward employee exercise of protected con-
certed rights. Although we agree with his latter find-
ing, we do not agree that President Bertrand's state-
ment that he deplored any faculty member who went
10 With respect to the propriety of the Administrative Law Judge taking
official notice of Berry-I, and accepting it as proof of animus in the instant
proceeding, see Barnes and Noble Bookstores. Inc., 237 NLRB 1246 (1978)
Kenworth Trucks of Philadelphia. Incorporated, 236 NLRB 1299 (1978).
to the NLRB or the AAUP for assistance did not
reveal an expression of animus. Although not alleged
as an independent violation of Section 8(a)(1) of the
Act, it is well settled that statements or questions im-
plying that the employer does not look with favor
upon employees engaging in protected activities are
coercive because they discourage employees from en-
gaging in protected activities guaranteed them by
Section 7 of the Act." The statement in issue here
could hardly be made clearer or more definite; it is
obviously a distinct statement of animus made by
Respondent's president," who had repeatedly stated
that collective bargaining is out of place on any col-
lege campus, especially Berry College.
In sum, we have found that, in effect, the annual
salary increases are directly correlated to merit and
that Dr. Carper was an outstanding teacher and su-
perior scholar. We further find, for the reasons stated
by the Administrative Law Judge, that Dr. Carper
was not deficient in the other relevant factors of ser-
vice to the institution, academic achievement, and
professional growth. Notwithstanding the foregoing,
Dr. Carper received two consecutive subpar evalua-
tions and, as a result of the latter evaluation, in 1977
received a salary increase approximately one-half the
average amount. Recalling that up to 1975 Dr. Car-
per had received 10 consecutive "excellent" or "good
to excellent" evaluations, that Respondent had ex-
pressed animus toward employee exercise of protect-
ed concerted rights, that Dr. Carper engaged in pro-
tected concerted activities beginning in 1975 and
continued to do so at all times material herein, and
that, following the exercise of his protected rights,
Dr. Carper's evaluations suddenly went from super-
lative to below average, we regard the timing of sub-
par evaluations as indicative of an illegal motiva-
tion. 3
In addition to the suspicious timing of the subpar
evaluations, we note that Respondent's officials in-
volved in the evaluation process gave false, shifting,
and inconsistent reasons for Dr. Carper's receipt of
subpar ratings. Thus, Davis told Dr. Carper that one
of the reasons Dr. Carper received a poor evaluation
was that his publications were not from recent re-
search but rather came right from his dissertation.
However, on cross-examination Davis stated he had
read only part of Dr. Carper's dissertation, and that
was in 1969 or 1970. Finally, Davis admitted that he
did not know whether the recent publication came
Didde-Glaser, Inc.. 233 NLRB 765 (1977).
2 In view of the foregoing, we do not adopt the Administrative Law
Judge's finding that Bertrand's remark that if Brumbaugh went to the
NLRB or the AAUP his name would be plastered all over the country and
no one would want to hire him was not intended to convey that Respondent
would cause Brumbaugh's name to be plastered all over the country.
13 Cf. Florida Sieel Corporation. 214 NLRB 264 (1974).
1162
THE BERRY SCHOOLS
from Dr. Carper's dissertation or not. During the in-
vestigation of the case, Davis also asserted that one
of the reasons Carper received a small salary increase
was that Respondent was making a concerted effort
to hold down the salaries of those faculty members
earning in excess of $20,000. However, no other offi-
cial of Respondent mentioned this alleged justifica-
tion; at least seven other full professors earning over
$20,000 received salary increases ranging from 5.8
percent to 8.9 percent; and Davis, during cross-ex-
amination, retreated from his statement. Finally, as
stated earlier, Geisel initially stated that Dr. Carper's
campus and community activities were minimal or
below average before admitting that he could not
name one individual in his department whose activi-
ties in those regards were superior to Dr. Carper's.
Under these circumstances, we agree with the
General Counsel that, because the reasons given for
the below-average salary increase are not supported
by the record and because Respondent has been
shown to have demonstrated animus toward protect-
ed concerted activities, it may be inferred that these
activities were the true reason for the below-average
salary increase. W. T. Grant Company, d b a Grant
City, 210 NLRB 622 (1974).
Accordingly, we find that by granting Dr. Gordon
Carper a below-average salary increase for the school
year 1977-78 Respondent has violated Section
8(a)(1) of the Act. Our conclusion in this regard is
buttressed by a comparison of Dr. Carper's salary
increase with that of Dr. Jorge Gonzalez. Dr. Gonza-
lez was initially a member of Dr. Carper's ad hoc
committee to study the feasibility of collective bar-
gaining. However, Dr. Gonzalez resigned his mem-
bership in the ad hoc committee in late March or
early April 1975. Prior to his resignation, Dr. Gonza-
lez had never received a salary increase in excess of
7.7 percent. After resigning from the ad hoc commit-
tee, Dr. Gonzalez received increases of 12.5 percent
for the school year 1975-76, 12.2 percent for 1976-
77, and 8.9 percent for 1977-78. As Dr. Gonzalez
himself could not explain any changes in his work
performance for those periods from previous years,
and as Dr. William Hoyt, Gonzalez' department
chairman, did not feel a large salary increase was
necessary for 1976-77, we believe it is clear that
Gonzalez was being rewarded for spurning the
"small power bloc" which so concerned Bertrand,
just as Dr. Carper was being punished for belonging
to it.
To conclude, Dr. Carper was, and still is. consid-
ered by Respondent to be an excellent teacher and
superior scholar. Until formation of the ad hoc com-
mittee to study the feasibility of collective bargaining
in 1975, Dr. Carper's evaluations and salary increas-
es reflected his respected status. However, since
being branded as a member of the "small power bloc
deliberately maneuvering" to gain control over the
faculty at large, his evaluations and salary increases
have been a reflection of Respondent's animus to-
ward faculty members engaging in activities protect-
ed by Section 7 of the Act.
The Board, upon the basis of the foregoing facts
and the entire retord, makes the following:
CON(CIt SIONS OF LAW
I. The Respondent, The Berry Schools, is an em-
plover engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. By granting a substandard wage increase to Dr.
Gordon Carper for the year 1977 78, Respondent
engaged in an unfair labor practice in violation of
Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of
the Act.
TIHE REMEDY
Having found that Respondent engaged in an un-
fair labor practice within the meaning of Section
8(a)( ) of the Act, we shall order that Respondent
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the
Act.
As we have found that Dr. Gordon Carper was
unlawfully given a substandard wage increase for the
school year 1977-78, based on a discriminatory eval-
uation rating of "below average," we shall order Re-
spondent to make him whole by payment to him of
the difference between the average wage increase
granted all continuing full professors rated "above
average" on their 1977 evaluations and the amount
granted him,'4 in accordance with the formula set
forth in F. W. Woolworth Company., 90 NLRB 289
(1950), with interest as prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977).'5
14 While there is no evidence showing that Dr Carper would have re-
ceived exactil the average salary increase of all continuing professors who
received evaluation ratings of "above-average." we find that granting Car-
per the average increase of those professors rated the same as he had been
before he engaged in protected concerted actisities would best effectuate the
purposes and policies of the Act. In so finding, we apply our well-settled
rule that the benefit of the doubt must be given the victim See Groves-
Granite. A Joint Venture, 232 NL.RB 381 (1977); N I.R.B. v Miami Coca-
(Cola Bortling ( ornpant. 360 F.2d 569 (Sth Cir 1969). We leave to the com-
pliance stage of this proceeding the computation of the exact sum due Car-
P See. generalls. Isi Plumbhing & Heatoln ( o, 138 N LRB 716 ( 1962
1163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 16 APPENDIX
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
The Berry Schools, Mount Berry, Georgia, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Granting substandard wage increases to, or
otherwise taking any reprisal against, any employee
for engaging in protected concerted activity.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action, which the
Board finds will effectuate the purposes of the Act:
(a) Make Dr. Gordon Carper whole for any loss of
pay he may have suffered as a result of his substan-
dard wage increase in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Expunge the "below average" rating and at-
tendant comments from Dr. Carper's Salary Analysis
and Recommendation for the academic year 1977-
78.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its college and academy at Mount Ber-
ry, Georgia, copies of the attached notice marked
"Appendix." 17 Copies of said notice, on forms pro-
vided by the Regional Director for Region 10, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to eniploy-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that the notices are
not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
16 We shall issue a "broad" cease-and-desist order herein, as Respondent
was previously ordered in Berry-l to cease and desist from similar conduct
as that found illegal herein.
7In the event that this Order is enforced by a judgment of a United
Slates Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all em-
ployees the following rights:
To organize collectively
To form, join, or support unions
To bargain in a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity.
WE WILL NOT grant substandard wage increas-
es to, or otherwise take any reprisal against, any
employee for engaging in protected concerted
activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by the Act.
WE WILL make Dr. Gordon Carper whole for
any loss of pay he may have suffered as a result
of his substandard wage increase, with interest.
WE WILL expunge the "below average" rating
and attendant comments from Dr. Carper's Sal-
ary Analysis and Recommendation for the aca-
demic year 1977-78.
THE BERRY SCHOOLS
DECISION
STATEMENT OF THE CASE
JERRY B. STONE. Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was tried pursuant to due notice on
January 30 and 31, and February 1, 1978, at Rome, Geor-
gia.
The charge was filed on July 8, 1977. The complaint was
issued on August 17, 1977. The issues are whether Respon-
dent violated Section 8(a)(1) of the Act by granting to Gor-
don Carper on March 15, 1977, a substandard salary in-
crease for the academic year 1977-78.
All parties were offered full opportunity to participate in
the proceeding. Briefs have been filed by the General
Counsel and Respondent and have been considered.
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:
!164
THE BERRY SCHOOLS
FINDINGS OF FACT
1 THE BUSINESS OF THE EMPLOYER
The Berry Schools, Respondent, is, and has been at all
times material herein, a Georgia corporation with an office
and place of business located at Mount Berry, Georgia,
where it is engaged in maintaining and conducting a 4-year
college and an educational institution of less than college
grade. Respondent, during a I-year representative period,
received gross revenues in excess of $1 million, of which at
least $50,000 was received directly from points outside the
State of Georgia.
Based upon the foregoing, and as conceded by Respon-
dent, it is concluded and found that Respondent is, and
has been at all times material herein, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II THE AI LEGED UNFAIR LABOR PRACTICES
Background and Setting 2
1. Berry College is a private, coeducational, 4-year col-
lege located at Rome, Georgia. Berry offers undergraduate
liberal arts, sciences, and professional programs, plus spe-
cialized graduate programs in education and business ad-
ministration. Berry College and the nearby Berry Acad-
emy, a 4-year preparatory school, are incorporated under
the name of The Berry Schools.
Berry College or Schools apparently started with a desire
to provide education of a vocational type, has grown, and
now attempts to blend such desire with the desire to fur-
nish liberal arts and some advanced types of education.
Currently Berry College has a faculty of 79 and a student
body of over 1,600. It appears to have had approximately
this number of faculty and students during the years imme-
diately preceding the critical events related to this proceed-
ing.
2. Dr. Joyce Jackson served as chairman of the "Faculty
Relations Committee" in 1974 and on May 28, 1974, gave
a committee report relating to faculty salaries. Dr. Jackson
pointed out at that time that in a particular publication
"Berry has a number 4 rating in all reported categories" of
salaries, and "as you know, a number 4 is the lowest possi-
ble rating.... In conclusion, to be quite frank and ex-
plicit, many faculty members are suffering economically
and desperately need more income."
As set forth in The Berry Schools, 234 NLRB at 949, Dr.
Bertrand responded to Dr. Jackson as follows:
After the meeting, President Bertrand "verbally at-
tacked" her comments about "the salary increases,
about the possibility this was all coming from a com-
mittee," about "the questioning why we were not get-
ting new faculty members but yet it seemed we kept
getting new administrators year after year, and about
The findings are based upon the pleadings and admissions therein.
The facts, unless otherwise indicated, are not in dispute and are ,,ased
upon the credited testimony of the witnesses or upon the findings in The
Berry Schols. 234 NLRB 942 (1978).
remission for tuition for faculty wives and children."
She "said, 'I don't even have a vested interest, Dr.
Bertrand tin the remission of tuition], I'm speaking for
the group. I'm the chairman of the faculty relations
committee and ... I tam] tired of being reprimanded
in my role' and then he told me . . . he would just
consider my entire report as a reprimand to him and I
told him, maybe he could consider it that way."
Thereafter, various faculty members who spoke up
at the May 1974 faculty council meeting about salaries
and tuition did not receive any of the limited number
of merit raises. Dr. Jackson talked separately to three
administrative officers, Academic Dean Moran, Asso-
ciate Academic Dean Ouida Dickey, and Vice Presi-
dent McDonald, about why she did not get one. "I
was told by all three of them . . . as far as my rank,
that I was . . . the most taleRned person that they
knew, that I did more than any person in my rank for
the college [and] for the community, that my teaching
was above reproach, that they had nothing but praise
for me." She asked them, then, would they please de-
fine "merit," and to explain why she did not receive a
merit raise. It is undisputed that Moran and McDon-
ald told her she "did not know how to say things"
(evidently referring to her comments-to which Presi-
dent Bertrand objected-at the May 1974 council
meeting). It is also undisputed that Dickey said "she
tried to tell the other two . . . that I did deserve a
merit raise because she knew what I did for Berry, but
she did not convince them." In these conversations,
Dr. Jackson told each of them that she considered the
merit increase "shut-up" money, and that "I thought
that it would take a great deal more than $400 to shut
me up." When she asked Dean Moran what he meant
about her not knowing how to say things, he said "I
just did not know how to approach matters with him,
or with my colleagues and I told him that I felt I
would not have been elected unanimously as the facul-
ty council chairman if my colleagues felt that way
about me and I listed some of the other things that I
had been appointed to by my colleagues."
As indicated, various faculty members who spoke up at
the May 1974 faculty council meeting about salaries and
tuition did not receive any of the limited number of merit
increases for that year. Dr. Jackson thereafter complained
to various administrative officers about her failure to re-
ceive a merit increase. It appears that a request for the
range of faculty salaries had been made. Dr. Bertrand re-
jected such request and indicated that he would release the
range of faculty salaries only if the full faculty voted such
approval in September of 1974.
3. On March 5, 1975, Berry College gave notice by letter
that only a "modest" pay increase was projected for the
faculty for the next year. Thereafter, on March 12, 1975, a
group of 40 "concerned faculty members" met to discuss a
response to the March 5, 1975, notice of intent to grant a
modest wage increase. Dr. Jackson chaired the "concerned
faculty" meeting and appointed Dr. Carper as chairman of
an ad hoc commnittee to examine the advantages of collec-
tive bargaining.
1165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The ad hoc committee chaired by Dr. Carper met ap-
proximately twice between March 12, 1975, and April 15,
1975, and held no meetings thereafter.
Two of the members of the ad hoc committee resigned
from it shortly after it was formed. Those members were
Dr. Gonzalez and Professor Davis.
On March 13, 1975, Dr. Jackson sent a letter to Dr. Ber-
trand in which she referred to the March 12, 1975, "con-
cerned faculty members" meeting and the appointment of
Dr. Carper to an ad hoc committee to make certain studies,
including an "examination of the advantages which might
accrue to a faculty should it decide to engage in collective
bargaining," and cited "a unanimous mandate to consider
the merits of Berry College's faculty constituting itself as a
self-organized collective-bargaining agent through election
processes prescribed by the National Labor Relations
Board."
As revealed in The Berry Schools, supra at 943-944, Re-
spondent commenced its campaign against the idea of col-
lective bargaining on March 25, 1975, as shown in the fol-
lowing excerpts:
2. Berry's campaign against collective bargaining
On March 25, Berry began its campaign against the
faculty (as well as the staff) resorting to collective bar-
gaining. Dr. Bertrand met with the entire college fa-
culty and read a long speech. After severely criticizing
the actions of the "concerned faculty members" on
March 12, he responded to the points made in Dr.
Jackson's March 13 letter, discussed Berry's financial
plight and efforts to raise funds, and then spoke
against collective bargaining:
Personally, I believe that collective bargaining is
out of place on any college campus-but most defi-
nitely out of place on one like Berry. I also think
that when a portion of a faculty seeks to establish
itself virtually as a labor union, I must disagree with
such a disservice to the faculty, as a whole, of this
institution and to the student constituency we all
serve. I am hopeful that the trustees and I will not
be forced into an "adversary" type of role so often
found in collective bargaining. ... If these dangers
and possibilities become realities, then what hap-
pens to our community spirit.... What happens
to our appeal to prospective students, the life-blood
of this institution? What happens to our appeal to
donors, the sustenance for this institution? . . . Fur-
thermore, two of the regrettable outcomes of an ad-
versary relationship could be 1) the dissolution of a
number of our faculty councils and committees
dealing with promotion, tenure, faculty welfare and
faculty benefits and 2) a labor negotiator becoming
your sole spokesman. I truly hope that the "point of
no return" has not already been reached because of
recent events.
President Bertrand then stated that he was meeting
that afternoon with the executive committee of the
Board of Trustees concerning salaries, tenure and pro-
motion recommendation, and changes in such adminis-
trative assignments as departmental chairmanships.
He then continued his criticism of collective bargain-
ing:
1, for one, firmly believe that if you do undertake
an objective exploration of collective bargaining,
your thorough study will cause you to conclude that
a bargaining agent system will hinder, rather than
help, in reaching solutions to our problems---for a
collective bargaining agent cannot attract students,
increase endowment, increase gifts and grants, in-
crease legacies or increase efficiency, except possi-
bly to eliminate committee work since the bargain-
ing agent would be the entity with whom Berry's
labor lawyer would deal.
I must also level with the trustees this afternoon
.... Is collective bargaining the new way for you?
Am I mistaken in my beliefs regarding the vast ma-
jority of my colleagues at Berry? Do you in fact
support a small power bloc deliberately maneuvering,
as I perceive it, to seek control [over] the larger
number of you? . . . Do you really feel like saying:
"Sock it to the student by raising tuition drastically,
but let's get ours." "Bleed the endowment for cash if
you have to, but let's get ours." "Destroy the sense
of community shared here by faculty, staff and stu-
dents if you have to, but let's get ours." "Misinter-
pret what key administrators are saying without
having the decency to even check for accuracy if
you have to, but let's get ours." [Emphasis supplied.]
Th. reference to a "small power bloc" was evidently
directed at such leaders as Dr. Jackson and Dr. Car-
per.
There were certain responses by Dr. Jackson and a con-
tinuation of Dr. Bertrand's response, as indicated by the
following excerpts from said decision (The Berry Schools,
supra at 944-945).
After President Bertrand concluded the speech, Dr.
Jackson gave a response "from the faculty's view-
point," for the information of Bertrand and the Board
of Trustees.
The following day, March 26, Bertrand repeated the
approximately 40-minute speech at a meeting of the
college staff (including secretaries, maintenance per-
sonnel, and the security guards), the academy faculty
and staff, and student leaders. Again, Dr. Jackson re-
sponded, to "straighten out some of the facts that were
incorrect in his presentation." (The allegations that
Bertrand created the impression of surveillance in this
speech, and that Academic Dean Moran also did so,
and unlawfully interrogated employees, at a meeting
of the faculty council on March 27, are discussed
later.) I note that before the March 26 speech, Ber-
trand privately accused Jackson of knowing ahead of
time everybody who was going to be on the ad hoc
committee and "everything that was going to be dis-
cussed at the March 12 meeting." He thus was holding
her largely responsible for the consideration of collec-
tive bargaining.
On the evening of April 4 (preceding the meeting of
the Board of Trustees on April 5), Dr. Jackson, Dr.
1166
THE BERRY SCHOOLS
Carper, and about 58 other representatives of the fa-
culty, staff, and students attended the Board's person-
nel relations committee meeting. As revealed by exec-
utive secretary Joyce Morris' notes, Dr. Carper stated
that "we're 22% behind where we were five years ago"
in salaries. Later, during a discussion of "any viable
alternatives to collective bargaining," Trustee Arthur
Morris stated, "You need to cut down on your facul-
ty-get rid of 10 or 15 people. You could do it with
62." He then revealed the resentment toward Dr. Jack-
son when she responded to his suggestion. The notes
of the meeting read:
Joyce Jackson asked Mr. Morris had he noticed
the number of administrators?
Mr. Morris said it didn't matter, he thought there
was being too much time wasted. "The amount of
time spent on writing all those letters you could
have been working." (This was a direct reference to
her March i3 letter concerning collective bargain-
ing.) Another trustee, Personnel Relations Commit-
tee Chairman Richard Edgerton, argued at the
meeting that "Collective bargaining can't do any-
thing but be harmful to Berry College . .. . It could
be extremely harmful." After the committee meet-
ing, Edgerton asked Dr. Carper "what was going on
in terms of the faculty" and "if I felt that the busi-
ness of collective bargaining was the answer on a
private college campus of the type of Berry." Later
in the conversation, Edgerton told Carper that "in
his opinion, collective bargaining had no place on a
campus like Berry College." Thereafter, Trustee
Frank Barron approached Dr. Carper, stated "he
too was opposed to Berry College entertaining the
idea of having collective bargaining on its campus,"
and cited his experience when collective bargaining
came to one of his Coca Cola plants, where "he no
longer had communication with his employees."
Carper "pointed out that I thought it was possible to
build a different model of collective bargaining."
I note that it was on this same day, April 4 (when
there was this repeatedly expressed concern about the
proposed collective bargaining), that President Ber-
trand directed a confidential campus communication
to Academic Dean Moran, rejecting Moran's March
18 recommendation of Dr. Jackson as his first choice
for promotion from associate to full professor. (This
rejection is discussed later.)
I also note that about this same time ("some week to
10 days" before the April 15 public announcement,
according to President Bertrand), that Bertrand first
mentioned anything to Dr. Robert Geisel about his
replacing Dr. Carper as the chairman of the Social
Science Department.
3. Public announcement
On April 15, Berry called a meeting of all the faculty
and staff of both the college and academy. President
Bertrand announced the replacement of Dr. Carper as
department chairman, omitted the name of Dr. Jack-
son in the list of promotions, and announced an 8
percent salary increase (plus 2 percent in selected pay
adjustments). When questioned why he made such a
public announcement of Dr. Carper's removal, Ber-
trand testified, "I felt that many of the matters that
were discussed . . . including this particular change,
was of concern and of rightful interest to the entire
faculty and staff of the Berry Schools." Contrary to
Berry's arguments in its brief, I find from the content
of the speech and from all the circumstances that the
April 15 meeting was held to continue Berry's cam-
paign against collective bargaining.
Although Berry argues that "there is nothing either
in the speech itself . . . or in the context in which it
was presented tying it to the March 12 concerned fa-
culty meeting, the March 13 letter, or any other con-
certed activity,' and points out that "There was no
reference at all to collective bargaining." However in
the speech (a verbatim copy of which was produced at
the trial and introduced into evidence as a Berry ex-
hibit), President Bertrand made apparent references to
the subject of collective bargaining, and specifically
referred to "labor-management psychology" and to
"Faculty activism."
In referring to his job as college president, he stated
that "Leadership in education demands courage and,
at times, even toughness" [emphasis supplied], and
added, "The alienation of faculties from administra-
tors and vice versa is a threat to effective educational
leadership. The labor-management psychology [empha-
sis supplied], if applied literally, will hamper effective
functioning of both parties." He stated that "Faculty
activism [emphasis supplied] . . . has resulted in dis-
ruptive tactics which are in complete violation of the
whole purpose of higher education," and spoke
against those who "encourage, either directly or indi-
rectly, the promulgation of actions providing incom-
plete information and misinformation which tends to
deprive members of the academic community of the
freedom to carry on their legitimate educational func-
tions." (In his March 25-26 speech, he had criticized
certain statements reportedly made in the March !2
concerned faculty meeting as being "incorrect and un-
fortunate," and had deplored a reported allegation
about the fund-raising efforts of a "responsible Berry
official.")
After expounding on the role of a department chair-
man, President Bertrand announced "certain changes
in administrative assignments" which "carry the full
support of Trustee Chairman William R. Bowdoin."
Following various noncontroversial announcements,
Bertrand read:
Bob Geisel will become chairman of the social
science department, replacing Gordon Carper who
will retain his Dana Professorship in 1975-76 and will
concentrate on his effective teaching and his
scholarly research and writing. [Emphasis supplied.]
This surprise announcement (Dr. Carper himself not
having been notified until about 5 minutes before the
meeting) was an apparent public rebuke to the chair-
1167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man of the ad hoc committee considering collective
bargaining for the faculty. Not only was he being re-
moved from his assignment as department chairman,
but the reference to his "retaining" the Dana profes-
sorship for the upcoming year implied that this honor
would also be in jeopardy thereafter.
President Bertrand then omitted the name of Dr.
Jackson from those receiving a promotion. For the fa-
culty members who were aware of her name being at
the top of the list of persons recommended to be pro-
moted to full professor, this announcement was also
an apparent rebuke to her for her leadership role in
proposing a consideration of collective bargaining.
President Bertrand next alluded to the subject of his
March 25-26 rhetorical questions ("Is collective bar-
gaining the new way for you? Am I mistaken in my
beliefs regarding the vast majority [emphasis supplied]
of my colleagues at Berry? Do you in fact support a
small power bloc [emphasis supplied] deliberately ma-
neuvering, as I perceive it, to seek control [over] the
larger number of you?") He stated that he and the
trustees had reached a decision to "invest in the peo-
ple here," even though it would require invading capi-
tal for the first time, "because we have confidence in
the vast majority" (emphasis supplied) of the college
faculty and staff. (It was obvious to the sophisticated
college faculty members that what he meant was that
he and the trustees had confidence that the "vast ma-
jority" of the faculty would not support the previously
mentioned "small power bloc" who were "deliberately
maneuvering"-toward collective bargaining.) Ber-
trand then, in effect, denied that the decision had been
influenced by the call for collective bargaining. He
asserted that the decision "is in recognition of the fact
that we will not allow ourselves to be pressured into a
decision less than merited by our long-time kind of
commitment." (Emphasis supplied.) He added that
"The primary argument in favor of this bold action
. . was that Berry could better afford to sacrifice
some capital than to jeopardize the notable progress
we have achieved together in recent years" (evidently
referring to his remarks in the March 25-26 speech
about collective bargaining destroying the community
spirit on the campus).
After discussing the impending deficit, he an-
nounced an 8-percent across-the-board increase, plus
about 2 percent for "some selective pay adjustments."
In the preceding 5 years, Berry had given no cost-of-
living increase I year, and had given an average in-
crease of from 4 to 5 percent in the other 4 years.
Thus, in the April 15 speech, President Bertrand
criticized the "labor-management psychology" and
"faculty activism"; he indicated that leadership some-
times demands "toughness"; he revealed the forceful
action taken against Dr. Carper and Dr. Jackson (the
well-publicized leaders in the call for considering col-
lective bargaining) by replacing Carper as department
chairman and refusing to promote Jackson; he told
the college faculty that he and the trustees had decid-
ed to make an investment in them because of confi-
dence in the "vast majority" (being loyal to Berry and
not supporting those seeking collective bargaining);
and he announced the amount of the investment: sal-
ary increases exceeding those in previous years and
paid partly from capital, despite the previous notice
that there could be only a "modest" increase.
4. Dr. Carper, his wife, and Dr. Jackson, on May 21 and
27 (with amendments on June 19 and July 10, 1975), filed
unfair labor practice charges (in Cases 10-CA-11266-1,
10-CA-11266-2, and 10-CA-11266-3) alleging in effect
that Respondent had violated Section 8(aXI) of the Act by
the removal of Dr. Carper as departmental chairman, by
the transfer of Dr. Carper's wife from the job she held, and
by the failure to promote Dr. Jackson to full professor.
5. The cases referred to above were consolidated, and
complaint was issued on July 15, 1975, alleging in effect
that Respondent had violated Section 8(a)(I) by the re-
moval of Dr. Carper as departmental chairman, the trans-
fer of Dr. Carper's wife from a secretarial position in Dr.
Carper's department to a different job, and the failure to
promote Dr. Jackson to full professor because such were
done in reprisal for Dr. Carper's and Dr. Jackson's leader-
ship in proposing collective bargaining for the faculty. The
unfair labor practice hearing on such issues was held by
Administrative Law Judge Ladwig on October 6-10 and
14-16, 1975.
6. Administrative Law Judge Ladwig's decision in Cases
10-CA-11266-1, 11266-2, and 11266-3 issued on March
11, 1976. Judge Ladwig found in effect that the facts re-
vealed animus by Respondent directed against collective
bargaining and those engaged in concerted activities di-
rected toward collective bargaining, that Dr. Carper was a
supervisor within the meaning of the Act, that Dr. Carper's
engagement in concerted activities was not protected by
the Act, that therefore the removal of Dr. Carper as depart-
mental chairman was not unlawful and not violative of the
Act. Judge Ladwig found that the question of lawfulness or
unlawfulness of the transfer of Mrs. Carper was based es-
sentially upon a theory of derivativeness to the question of
lawfulness or unlawfulness of the removal of Dr. Carper as
departmental head, and since Dr. Carper's removal as de-
partmental head was not unlawful, the transfer of Mrs.
Carper was not unlawful. Judge Ladwig found that the fail-
ure to promote Dr. Jackson was violative of Section 8(a)(1)
of the Act based upon the fact of animus because of her
leadership in pursuing the idea of collective bargaining.
Exceptions to Judge Ladwig's decision were taken and
the said case was pending before the Board until the
Board's decision in said case issued on February 16, 1978.
The Board in The Berry Schools, 234 NLRB 942, adopted
Administrative Law Judge Ladwig's decision in toto, except
for a minor modification dealing with the question of com-
putation of interest on backpay due Dr. Jackson.
7. As has been indicated, Dr. Carper was removed as
departmental chairman, and Dr. Geisel was installed as
departmental chairman (Department of Social Sciences) on
April 15, 1975.
The issues in this case concern whether Dr. Carper's sal-
ary for 1977-78 was determined adversely to his interests
because of his having engaged in protected concerted ac-
tivities.
1168
THE BERRY SCHOOLS
The parties' theories relating to the determination of Dr.
Carper's salary for 1977-78 involve consideration of Dr.
Carper's ability and performance, Respondent's evalua-
tions of such ability and performance, and the reasons on
which Respondent based the determination of Dr. Carper's
salary. Perhaps the determination of Dr. Carper's ability
and performance could be bypassed and the ultimate is-
sues decided merely upon the consideration of evaluations
and the other evidence relating to the basis for the fixing of
salaries. In my opinion, a better understanding and deci-
sion can be derived from a closer focused finding as to
ability and performance, evaluations, and the other evi-
dence relating to the reasons for the determination of Dr.
Carper's salary for 1977-78.
Respondent aruges that the Board should not intrude
into the area of "evaluations"-that it involves judgmental
decision best left to Respondent. Court cases cited by Re-
spondent have language to such effect. A study of such
cases reveals, however, that the courts did not intend to
convey that the courts should abdicate the responsibility of
determining questions of discrimination. Rather, the courts
indicated, as is the Board's practice, that where the evi-
dence is not persuasive as to the question of discrimination
and is of such a nature as to reveal a basis for reasonable
variance in judgment, the court will not substitute its judg-
ment for that of Respondent.
In the determination of ability and performance, much
of the same type of evidence bearing on the validity of
evaluations has weight. Thus, evidence of evaluations,
statements of opinion, and other oral and written pub-
lished statements relating to an individual's ability and per-
formance; professional opinion and observations; and tes-
timony relating to job performance are all relevant to a
determination of ability and performance.
In this case, evidence relating to Dr. Carper's ability and
performance reveals that the evidence is sufficient to estab-
lish findings thereon and is not in the area of uncertainty
described as reasonable judgmental variance. I note that
determination of ability and performance must be made in
the context of standards. In this case all of the evidence
relates to the standards utilized by Respondent and, thus to
findings in The Berry Schools, supra, statements and ex-
pressions by Respondent and its officials; and testimony
and professional opinion by professors employed by Re-
spondent and familiar with its standards.
Based on the findings in The Berry Schools, supra, and
the evidence in this case, I find that Dr. Carper has been an
outstanding scholar and teacher at all times material to the
issues in this case. I note, however, that excluded from
consideration of the specific findings of Dr. Carper's being
an outstanding scholar and teacher are factors relating to
the questions of departmental cooperation, whether he
misused class time, whether he engaged in unauthorized
changing of class schedules, whether he submitted a grade
on a student he did not supervise, whether he was unavail-
able to students during posted office hours, and whether he
abused his position as a student advisor.
That Dr. Carper was an outstanding scholar and teacher
is clearly proved by findings in The Berry Schools, supra,
the credited testimony of Dr. Hoyt, Dr. Cantrell, and Mr.
Brumbaugh in the nature of professional opinion and ob-
servation. Further, I note, Dr. Carper was an impressive
witness who revealed a confidence in the subjects he dis-
cussed and who testified in an articulate and precise man-
ner.
In The Berry Schools, it was found as follows:
Dr. Carper is a highly respected member of the col-
lege faculty. He was hired to head the Social Science
Department in 1965, and since then, has received
many honors and important committee assignments.
The Berry College student body elected him Faculty
Staff Member of the Year in 1975, and Berry admits in
its brief that "Carper is an outstanding scholar and
teacher."
Further, in said case it is again noted that President Ber-
trand referred to Dr. Carper as follows:
Bob Geisel will become chairman of the social sci-
ence department, replacing Gordon Carper who will re-
tain his Dana Professorship in 1975-76 and will concen-
trate on his effective teaching and his scholarly
research and writing (emphasis supplied].
It is thus clear that as of April 15, 1975, Respondent
considered Dr. Carper to be an outstanding scholar and
teacher and to be effective in his teaching, scholarly re-
search, and writing. The findings in The Berry Schools,
when considered with the credited testimony of Drs. Car-
per, Hoyt, and Cantrell and Mr. Brumbaugh, warrant a
finding that Dr. Carper's ability and performance as of
April 15, 1975, and at all times thereafter, might best be
described as outstanding as a teacher and scholar.
Dr. Carper credibly testified that prior to April 1975 he
had been rated "excellent" or "good to excellent" by asso-
ciate deans in annual evaluations for wage purposes.3 Dr.
Hoyt and Dr. Cantrell credibly testified, in effect, that
based upon their professional experience they considered
Dr. Carper to be an excellent teacher and to have written
scholarly publications. 4
Dr. Bertrand was questioned as regards his May 2, 1975,
statement concerning Dr. Carper's abilities and the rela-
tionship thereto of Dr. Carper's 1977-78 salary. Consider-
ing Dr. Bertrand's response in total, one must construe that
he continues to evaluate Dr. Carper's abilities in the same
light. And, finally, Respondent stipulated at the trial in this
matter that Dr. Carper's abilities have not changed since
April 1975.
Except in minor respect, Respondent's witnesses did not
attack Dr. Carper's ability or performance in the questions
of teaching, research or publications, or community activi-
ties in the pure sense. Dr. Geisel, head of the department in
which Dr. Carper taught, did not criticize Dr. Carper's
teaching except in the sense of a question of departmental
cooperation or image. Dr. Geisel minimized the question of
3 Respondent argues that there is no documentary evidence presented by
the General Counsel on this point. I credit Dr Carper's testimony io such
effect. Further. I note that Respondent has presented no documentary evi-
dence to refute such testimony nor evidence that such records were not
made or kept.
Although Dr. Hoyt and Dr. Cantrell are not in the same field of aca-
demic discipline as Dr. Carper, I note that Respondent's departments are
set up on a broad bvsis and that Respondent's evaluation system goes across
fields of discipline. Thus, as an example. Dr. Geisel, Ph. D., Sociology, is
chairman of the Department of Social Sciences, which includes the disci-
plines of political science, history. and soclology
1169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participation in community or institutional activities and in
research and publications. Dr. Geisel indicated, in fact,
that "teaching" was the main question for evaluation pur-
poses. Davis, current assistant professor of business admin-
istration and acting head of the Department of Business
Administration, involved administratively in setting up the
"evaluation" plan, appeared to want to criticize Dr. Carper
based on differences of opinion that occurred when Davis
was a student of Dr. Carper years ago. Dean Mathis in his
testimony appeared to evaluate a magazine in which Dr.
Carper had an article published a; not having the reputa-
tion of being among the top publications. On the other
hand, Mathis appeared proud that an article he planned to
publish or expected to be published would be in another
publication in which one or some of Dr. Carper's articles
were or were to be printed.
Considering the fact that a professional person has pride
in his profession, I find it hard to believe that in a profes-
sional sense Dr. Carper would have exerted less effort in
the utilization of his professional abilities after April 1975,
despite the fact of his removal as department head. Dr.
Geisel did testify to some reference by Dr. Carper to de-
creased efforts in "institutional affairs." However, the testi-
mony of Dr. Carper with respect to the "College Board"
and other related activities convinces me that Dr. Carper
did not hold back in his performance.
In sum, considering all of the facts referred to above, it is
concluded and found that Dr. Carper was an outstanding
scholar and teacher and performed as such at all times
material to the issues in this case.5
Dr. Carper's salary history
8. Dr. Carper's salary and comparison of percent-of-
wage increase to percent-of-wage increases of all continu-
ing professors at Respondent's school was presented for
the record and is revealed as follows:
Salary History of
Dr. N. Gordon Carper
Acad.
Year
Year Salary
$ 9200
9600
12000
13500
14600
15400
15400
16600
17500
18375
19900
20900
21600
In-
crease
$ 400
2400
1500
1100
800
-0-
1200
900
875
1525
1000
700
In-
crease
4.35%
25.00
12.50
8.15
5.48
-0-
7.79
5.42
5.00
8.30
5.03
3.35
% In-
crease of
Cont. Profs.
N/A
N/A
N/A
N/A
3.97%
2.17
6.76
6.74
5.73
9.72
7.47
6.21
As previously indicated, there are certain factors relating to departmen-
tal cooperation and other complaints by Dr. Geisel that are not considered
1975-76
9. As set forth previously, Dr. Geisel was appointed de-
partmental chairman and Dr. Carper was removed as de-
partmental chairman of the Department of Social Sciences
on April 15, 1975. Dr. Carper, like all other professors,
received essentially the same percentage across-the-board
raise for the year 1975-76.
Although there was not much evidence presented with
respect to the relationship of Dr. Geisel, Respondent, and
Dr. Carper for the year following April 15, 1975, the over-
all evidence reveals that some friction or problems existed.
Thus, it appears that a problem existed between Dr.
Geisel and Dr. Carper over the office space that Dr. Carper
would occupy. Further, the unfair labor practice charges
later filed by Dr. Carper in 1976 revealed a belief of Dr.
Carper that Respordent was unfair to him in depriving
him of committee assignments, had unlawfully changed its
educational requirements, and had unlawfully changed the
name of a course from "Protest: The American Way" to
"Protest: An American Way." And, in a questionnaire an-
swered by Dr. Carper on May 26, 1976, it is revealed that
Dr. Carper considered that in the past year he had had
difficulty in obtaining permission to teach certain courses
as seminars, that the teaching faculty needed more free-
dom in the area of course structure, that he didn't feel he
had an equal and fair voice in matters concerning the de-
partment, that he considered his academic freedom to be
restricted, that he considered that Dr. Geisel resolved con-
cerns and issues by fiat, that he did not consider that the
chairman (Dr. Geisel) afforded opportunity to him for dis-
cussions with proper freedom and courtesy, and that he
considered that salary, promotion, and tenure were based
not on excellence but on whether the individual agreed
with administrative policy and decisions.
As indicated later on, there were specific instances of
apparent disagreement between Dr. Geisel and Dr. Carper
at other times. In most instances, determination of who is
really right or wrong, in whole or in part, is difficult. For
the purposes of this case, I do not find it necessary in such
instances to determine who is really right. It is sufficient to
say that in the area of professionals and their dealings with
each other, in the area of the fine lines to be drawn be-
tween rights of "academic freedom" and cooperation, I am
convinced that both Dr. Geisel and Dr. Carper considered
that the right was on his respective side.
The sum and effect of all of the facts reveal, in my opin-
ion, that Dr. Carper, as a professional, was sensitive to
being accorded what he considered to be his rights and
freedom of operation and that Dr. Geisel, as a professional
with responsibilities as departmental chairman, was simi-
larly sensitive to being accorded respect and cooperation
by Dr. Carper. The facts are clear that a mutually comfort-
able accommodation was not reached by the two.
In the performance evaluations of 1976-77, Dr. Geisel
in this evaluation and determination. In my opinion, a better understanding
of this case is arrived at by consideration of those factors in the text of
Respondent's evaluations of Dr. Carper and not for the pure determination
of ability and performance in an academic sense.
1965-66
1966-67
1967-68
1968-69
1969-70
1970-71
1971-72
1972-73
1973-74
1974-75
1975-76
1976-77
1977-78
1170
THE BERRY SCHOOLS
rated Dr. Carper's performance as average to below aver-
age.
I note that the evidence presented by the parties general-
ly suggests that the yearly "evaluation" relates to the per-
formance of the preceding year. Considering all of the evi-
dence, the continuous flow nature of research and
publications, the staggered time periods of questionnaires
and annual reports by faculty members, the written data
actually utilized at annual evaluation time, and the ques-
tion of inequities, I am not persuaded that the evaluation is
so strictly limited.
Thus, the questionnaires completed by the faculty are
designed to address the past year but are received after the
"evaluation" process for the current year; the annual re-
ports by the faculty for the past year are also submitted
after the "evaluation" process for the current year. Thus, as
an example, the 1976 questionnaire, apparently submitted
as of May 1976, and the "Annual Report" for 1975-76,
submitted as of May 1976, are not considered in the "eval-
uations" for raises for 1977-78. This, however, does not
exclude actual consideration of such matters to the extent
they may actually be known or heard of by the individuals
performing such evaluations.
Considering all of the facts, I am persuaded that Dr.
Geisel's evaluation of Dr. Carper in 1976 was not based
upon consideration of Dr. Carper's protected concerted ac-
tivities but upon his consideration of Dr. Carper as affect-
ed by the departmental relationship that he and Dr. Carper
enjoyed (or failed to enjoy). I have considered the fact that
in The Berry Schools, supra, it was found that certain evalu-
ations or recommendation as to Dr. Jackson were adverse-
ly affected by a desire by McDonald to please Dr. Ber-
trand. I have also considered Dr. Geisel's testimony of
concern about Dr. Carper's statements in effect to get re-
venge on Dr. Bertrand. However, considering the obvious
friction existing between Dr. Geisel and Dr. Carper and
the testimonial denials, which I credit, that any instructions
were given or considered to make a specific evaluation, I
am persuaded that Dr. Geisel's determination of evalua-
tion of Dr. Carper in 1976 was not based upon reasons
unlawful within the meaning of the National Labor Rela-
tions Act, as amended.6
Protected Concerted Activity 1976-1977
10. Although the precise facts and timing of events were
not clearly presented, it is clear that in 1976, apparently in
the spring, Dr. Carper and the local chapter of the Ameri-
can Association of University Professors filed unfair labor
practice charges against Respondent. Such charges were
filed with the Memphis (Region 26) office of the National
Labor Relations Board. Such charges in effect alleged that
Respondent's changing of the college's general educational
requirements was unlawful, that Respondent had unlawful-
ly deprived Dr. Carper of committee assignments, and that
Respondent's changing of a course title from "Protest: The
6The National Labor Relations Board does not police the question of
whether or not academic freedoms have been infringed upon. or wt6lIher
evaluations are unfair in such context, unless Ihe evidence re;eals the rea-
sons were unlawful within Ihe meaning of the Act.
American Way" to "Protest: An Amencan Way," was un-
lawful. At some time after the filing of the charges, they
were dismissed at the regional level and appealed to the
General Counsel's office in Washington, D.C., where their
dismissal was sustained by the General Counsel.
On January 20, 1977, there was a faculty meeting
wherein the faculty discussed the question of salary and
raises, Present at this meeting was Dean Mathis, who en-
gaged in the discussions. Dr. Carper asked the faculty to
suggest or endorse a 10-percent raise for the faculty. Such
suggestion or requested endorsement was formulated into a
motion and passed by the faculty by a vote of 33 to 3.
On February 17, 1977, at another meeting of the faculty,
Dr. Carper made a motion to encourage and recommend
the renewal of a formal sabbatical program at Berry, since
the Lily program of grants was about to terminate. The
motion was passed by a vote of 21 to 0.
I I. During the 1976 academic year there continued to
exist an underlying friction between Dr. Geisel and Dr.
Carper. It appears that both were sensitive to the responsi-
bilities and prerogatives of their respective positions. The
testimony as to the problems and contentions reveals only
one aspect wherein the matter is not disputed. It is clear
that at times Dr. Carper was late in submitting some de-
partmental reports.
As to many of the other incidents, it appears that each
interpreted the facts in the way he, as an individual, saw
them. In this respect, I must note that Dr. Carper appeared
to be more objective as a witness. The total evidence is
persuasive that Dr. Geisel, at the time of the incidents,
perhaps was not as objective as Dr. Carper. Considenng
the totality of the facts, however, I am persuaded that Dr.
Geisel, at the time, was motivated in such considerations
by his belief that Dr. Carper was causing friction and not
by any anti-protected concerted activity attitude. I note,
however, that Dr. Geisel in his testimony alluded to state-
ments by Dr. Carper of animosity toward President Ber-
trand.
One problem involved disagreement between Dr. Geisel
and Dr. Carper over the setting of an 8 a.m. class and a
related desire to block out other hours for class time. Con-
sidering all of the facts relating to this dispute, it appears
that Dr. Carper had reason to argue against the setting of
the 8 a.m. class and that, ordinarily, Dr. Geisel should have
understood his concern. However, it is also understandable
under the circumstances that Dr. Geisel would feel that Dr.
Carper was not acting very cooperative. Another problem
involved Dr. Carper's desire to change the time of a class.
The facts reveal a basis for Dr. Geisel's belief that Dr.
Carper was pushing him on the issue and perhaps also
wanted to hold the classes at home. Again, it would appear
that both Dr. Carper and Dr. Geisel could believe in the
righteousness of their own positions on the matter. How-
ever, the overall evidence reveals a basis for Dr. Geisel's
belief that Dr. Carper was testing him. I note that Dr.
Geisel's response to the request comes close to being nei-
ther a denial nor an approval. However, in totality, the
response must be construed as an approval. Another prob-
lem involved a contention that Dr. Carper took credit for
supervising a student whom he did not supervise. The over-
all facts in my opinion reveal that Dr. Carper was a victim
1171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of an office error, had done some supervision, received a
card for a grade, and did nothing improper. As to this
problem and Geisel's belief of improper conduct by Dr.
Carper, I am persuaded that Dr. Geisel did not act objec-
tively because of his overall belief that Dr. Carper was
trying to take advantage of him. There was another prob-
lem concerning whether Dr. Carper had reported that a
higher number of students desired a course and that the
course was needed, when he should not have done so.
Again, Dr. Geisel does not appear to have considered the
facts in an objective manner in his total consideration of
Dr. Carper's performance for 1976. Another problem in-
volved a misunderstanding over comments Dr. Carper
made about the hiring of certain new professors. Although
I believe Dr. Carper's explanation of what he said, the facts
are of such a nature that Dr. Geisel could reasonably be-
lieve that the remarks were detrimental to the department.
Another problem involved Dr. Carper's failure to timely
turn in certain evaluation reports by students. While Dr.
Carper very well may have meant no harm to the proce-
dure of the school, such conduct reasonably would concern
Dr. Geisel as head of the department. I have briefly allud-
ed to the problems that existed between Dr. Geisel and Dr.
Carper. It would appear that reasonable men attempting to
cooperate with each other could handle these problems in a
satisfactory manner. Regardless of who is right or wrong, I
am persuaded that Dr. Geisel believed these problems to
be real problems, that his evaluation of Dr. Carper for the
year 1976 was based upon such belief that there were prob-
lems, and that his evaluation was not based upon Dr.
Carper's protected concerted activities. 7
12. The evidence presented in this case relating to Re-
spondent's evaluation of faculty members utilized as part
of the process of salary increase determination for 1977-78
reveals that the evaluation process was similar in 1977
compared to the years preceding 1977 as regards evalua-
tions by the departmental chairmen and the associate
deans over such departments. Whether the remaining steps
of evaluation as utilized in 1977 were similar or dissimilar
is not clearly revealed. Further, excepting where salary in-
creases were selective, based upon merit, or of the across-
the-board type, evidence of how salary increases were de-
termined in the past years was not presented.
Some of the evidence, however, indicates that whether or
not a faculty member had received a doctorate or promo-
tion constituted a part of the basis of determination of
salary increases. Walton credibly testified to the effect that
the process of salary determination for 1977-78 was differ-
ent. No testimony was presented to illustrate the difference
in process used in 1977 as compared to that used in years
preceding 1977. Walton testified to the effect that the gen-
eral practice in the years preceding 1977 was to grant sal-
ary increases based on merit and that the salary increases
determined in 1977 were upon merit.
7 As indicated later. I find that Dr. Geisel's evaluation of Dr. Carper was
affected by the conduct described above and not by his professional perfor-
mance in the purest sense. There was some evidence relating to other prob-
lems existing between Dr. Geisel and Dr. Carper. I havt considered such
evidence, and my findings as to such problems are to the same effect as the
specific findings herein.
The facts reveal that Respondent in 1975 granted across-
the-board salary increases, perhaps with minor deviation as
to selective pay adjustments. The evidence relating to sal-
ary increases in other years preceding 1977 indicates that
salary increases were on a selective basis.
As to the evaluation process, the facts reveal that in 1975
faculty members were evaluated and rated on a rating
comparison ranging from superior to poor on a respective
numerical scale of I to 5. This was changed in 1976 and, as
changed, continued in use in 1977 with an evaluation and
numerical rating scale of I for above average, 2 for aver-
age, and 3 for below average.
Although much testimony and many exhibits were pre-
sented with respect to the evaluation process, ratings, and
salaries of various individuals, the evidence as a whole re-
mains largely unconnected for proper analysis and deduc-
tions. Thus, evaluations by Dr. Hoyt of his department and
by Dr. Geisel of his department were presented for several
years. Evaluations and ratings of other departments were
largely ignored. Evidence of salaries of all continuing pro-
fessors, with a few such professors identified but other uni-
dentified, was presented. Essentially, correlation of ratings
and evaluations can be made only on a limited basis. Other
exhibits relating to faculty members who received a "below
average" rating in 1977 when compared to other exhibits
and testimony in the record reveal that only a few can truly
be compared on a statistical basis. It appears that of the
full professors only Dr. Carper, Dr. Turner, Professor Jean-
Baptiste, and a department head (identified as No. 2170),
received 3 or "below average," ratings. Their salary in-
creases for 1977-78 can be ascertained.
Dr. Geisel's and Dr. Abels' ratings of Dr. Carper, Dr.
Turner, and a number of other faculty members for the
1977-78 evaluations was presented for the record. The sal-
aries of Dr. Carper and Dr. Turner for 1977-78 were also
presented for the record. It appears that Dr. Geisel is a full
professor. The evidence of evaluations reveals that Dr.
Abels rated Dr. Geisel as I (above average). It appears
possible that the salary and wage data exhibit relating to
continuing full professors contains reference to Dr. Geisel
as identified by the number 5290. However, comparison of
the salary indicated on the exhibit relating thereto with the
salary indicated on the evaluation exhibit for Dr. Geisel
reveals a difference in salary indicated for 1975-76. Thus,
Dr. Geisel may not be the person identified by number as
5290. If Dr. Geisel is a full professor and the person identi-
fied by the number 6711 on the salary and wage exhibit
(G.C. Exh. 19), there is a variance or discrepancy in sala-
ries as listed thereon and on the evaluation documents.
Thus, a comparison of his rating and salary as determined
is impossible.
Certain evidence presented concerned Dr. Hoyt's evalu-
ations of faculty members in his department. Of the four
faculty members in Dr. Hoyt's department, statistical data
as to the 1977-78 salary increases of Dr. Hoyt and Dr.
Gonzalez were presented into the record only for 1977-78
salaries.
The overall evidence as to evaluations and their correla-
tion with salary increases reveals the following: As to most
evaluations of faculty members, there is no evidence to
afford a basis for correlation and analysis. As to Dr. Car-
1172
THE BERRY SCHOOLS
per, the evidence for the years preceding 1975 reveals high
ratings, with the determined salary appearing not to corre-
late with the ratings. As to Dr. Gonzalez, past salary in-
creases and the 1977 78 salary increase appear to correlate
to the high evaluations given him by Dr. Hoyt and the
associate dean. As to Dr. Sturdivant, who appears not to be
a full professor, salary increase appears to disregard the
evaluations of Dr. Hoyt and the associate dean. As to Dr.
Cantrell, from a process of logical deduction, it appears
that her rating evaluation in 1977 was at least 2 (average).
The salary increase determined for Dr. Cantrell for 1977
78 does not appear to be based upon such evaluation but is
closer to that of a "below average" evaluation.
Another exhibit presented into the record relates to fa-
culty members receiving an increase of $700 or less for the
year 1977-78. Considering this exhibit with other evidence
in the record reveals a question of accuracy. Thus, Dr.
Cantrell, head of an academic department, received an in-
crease of $700. The breakdown indicates that the faculty
and department heads consisted of 78 persons and that the
faculty, excluding department heads and a director of
graduate studies, consisted of 61 persons. The statistical
data indicated that 14 of the faculty received increases of
less than $700, that 4 received increases of $700, that the
faculty receiving increases of $700 or less totaled 18 out of
61 faculty or 18 out of 78 (faculty and department heads).
Thus, it woudl appear that Dr. Cantrell was considered for
statistical purposes a faculty member but not head of a
department or was erroneously excluded from the tabula-
tion. It is clear that a question of accuracy is presented.
Respondent's budgeting process for 1977-78 com-
menced in the fall of 1976. In January 1977, forms for
evaluation of individual faculty members were submitted
to the various departmental chairmen. Such forms listed
the faculty members in each department and, for each indi-
vidual, the gross salary for the previous year, the change in
salary for that year, the percentage of change, a space to
indicate whether or not the position occupied by such fa-
culty member should continue, a space to indicate whether
or not the individual should be continued in the position, a
space to indicate a numerical rating of performance of 1, 2,
or 3, indicating, respectively, an evaluation of above aver-
age, average, or below average, and a place for remarks by
the departmental chairman if he (or she) so desired.
Such an evaluation form was submitted to Dr. Geisel,
chairman of the Social Sciences Department, in early Janu-
ary 1977 and was apparently completed by him by January
12, 1977. In the department chaired by Dr. Geisel, there
were 10 faculty members. Dr. Geisel did not rate himself,
rated the performance of four of the faculty members in
the department as I, above average; rated two as 2, aver-
age; and rated three as 3, below average. Dr. Carper was
one of the faculty members rated 3 in performance by Dr.
Geisel.
Dr. Geisel indicated that all positions in his department
should be continued and that an additional full-time so-
ciologist was needed, and that the three faculty members
being rated in performance as 3 should not be continued
but two of those three had tenure.
It should be noted that the evaluation of faculty essen-
tially concerns faculty performance, in the case of the eval-
uations of 1977, for the year January 1976 to January 1977.
Although this is essentially true, it appears that the evalua-
tion in essence considers overlapping factors. Thus,
scholarship and publications by faculty members cross
yearly lines and obviously must be considered in context.
Further, it is clear that past salaries and "inequities" are
considered. Fhe facts reveal that the evaluations by the
department chairmen are based upon their knowledge and
observation of the individual faculty members. Further, re-
ports are made by individual faculty members in May of
each year concerning their previous year's work. Such re-
ports appear to be part of the documents considered in the
evaluation process and, again, suggest an overlapping of
years.
Respondent's evaluation process involves the forwarding
of the evaluation forms from the departmental chairmen to
the associate dean responsible for such department and
other departments. Respondent's administrative chain at
this juncture involves two associate deans having re-
spective responsibility over respective departments.
The associate deans over the respective departments
then evaluate the departmental chairmen and faculty mem-
bers in such departments. Dr. Abels was the associate dean
having responsibility over the department chaired by Dr.
Geisel. For purposes of evaluation, Dr. Abels had the same
documentary data available as had Dr. Geisel, plus Dr.
Geisel's evaluations. Additionally, Dr. Abels' evaluations
were guided by such knowledge as she might personally
have of the individual faculty members, and by her evalua-
tion of Dr. Geisel's evaluations as too generous or too
strict. Dr. Abels also assigned an evaluation to the re-
spective faculty members. Dr. Abels rated Dr. Geisel as I
and assigned all other faculty members in Geisel's depart-
ment the same rating as Geisel had, except in the case of
Brumbaugh. Dr. Geisel had assigned a 3 rating of perfor-
mance to Brumbaugh. Dr. Ables rated Brumbaugh's per-
formance as 2.
Respondent's next step in the evaluation process in-
volves forwarding the completed evaluation forms from the
respective associate deans over the various departments to
the vice president and dean of the college. It appears that
the vice president has all the data of documentary nature
considered by the departmental chairmen and associate
deans as to the indivilual faculty members; the evaluations
of the departmental chairmen and the associate deans; and
such knowledge as he might otherwise have and such ob-
servations as he might have made of the individual faculty
members for use in his evaluation of the respective faculty
members. The vice president reviews the prior evaluations
with the appropriate associate dean and, in the event of
disagreement, can submit his own numerical evaluation of
the faculty members.9
Doyle Mathis was the vice president and dean of the
college for Respondent who functioned at this step of the
It is not clear exactly when the ratings by Associate Dean Abels were
made. They may have been made before or after the determination of total
moneys available for salary increases were made
Again. the facts do not clearly reveal whether such evaluation or possi-
ble evaluation by the vice president occurred before or after the overall
determination of moneys available for total salary increases.
1173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evaluation process. Thus, at this step of the evaluation pro-
cess as regards Dr. Carper and all other faculty members,
Vice President Mathis was involved in the process. Vice
President Mathis, in apparent agreement with Drs. Geisel
and Abels, did not submit a different evaluation of Dr.
Carper's performance for the past year.
In February 1977, the board of trustees of Respondent
had determined that moneys in the amount of $200,000,
equivalent to an average 7-percent wage increase, were
available for raises on a "selective" basis.
After completion of the evaluation process described
above and determination of the moneys available for sal-
ary increases, the vice president of the college met with the
director of management and planning and the controller to
determine a tentative salary for each faculty and staff
member.
Mathis, Davis, and Walton credibly testified to the effect
that they approached the salary determinations by consid-
eration of the faculty in line of rank and on an alphabetical
basis. They first considered full professors in alphabetical
order. It appears that the three had the accumulated data
relating to evaluation plus such knowledge as they each
might have of the individuals, their performance, inequi-
ties, and the overall amount of money available for all sal-
ary increases. It appears that they also had a determination
to give at least a $500 wage increase to anyone who would
receive a raise, a determination to give a $600 wage in-
crease to any faculty member who had earned a doctorate,
and a determination to give an increase to those promoted.
It appears that procedure included determination of tenta-
tive salaries based upon a composite consideration of all
the foregoing.
Mathis, Davis, and Walton all were questioned about,
and testified with respect to, the determination of tentative
salaries for the faculty for 1977-78. Questions and answers
were broad and generalized, with in minor exceptions.
Their composite testimony was that Mathis and Davis sug-
gested a tentative salary for individuals, that there might be
discussion, and that tentative agreement was made on each
individual's salary and increase. In general, the composite
testimony indicated that consideration was given to many
factors-evaluations, inequities, ethnic background, and
others. There was little specific questioning or testimony
about how individual salaries were determined. Testimony
relating to the determination of Dr. Gonzalez' salary indi-
cated that it was based upon his high evaluation, knowl-
edge of his superior performance, a belief that he might
leave if he did not receive a high increase, and a desire to
keep Gonzalez (and his wife) to have two members of a
minority group on the faculty. However, cross-examination
revealed that another minority professor, Jean-Baptiste,
did not appear to benefit from this type of thinking in
salary determination. Another faculty member apparently
received a high increase because of a contribution relating
to a girls' basketball program. As to Dr. Carper, none of
the three recalled any discussion. However, Mathis indi-
cated that consideration of Dr. Carper's performance and
past services was made. None of these witnesses testified as
to exactly how it was determined to give Dr. Carper a $700
wage increase for 1977-78.
In general, the testimony of Mathis, Davis, and Walton,
like the documentary exhibit evidence and other testimony
relating to evaluations and salary determinations, affords
little basis for analysis and comparison of a meaningful
nature bearing on 1977-78 salary increases.
After the determination of tentative salaries and increas-
es for 1977-78, Mathis, Davis, and Walton conferred with
the academic associate deans (Abels and Scott) on tenta-
tive salaries and increases for faculty in the academic de-
partments under their jurisdiction. A similar conference
was held with Dr. Dickey for nonacademic employees. In
such conferences the respective academic associate deans
made some suggestions, both upward and downward, as to
the tentative salaries, and some changes were made in the
suggested tentative salaries. None of the testimony was
precise as to whose tentative salary or increase was ad-
justed, why the adjustment was made, or other details. It is
clear that Dr. Carp(,r's proposed tentative salary increase
remained as previously set.
Following the foregoing, Vice President Mathis dis-
cussed proposed salaries and salary increases for faculty
members with the associate dean of the college for advice
about the faculty as a whole. Little detail was presented as
to this discussion, possible review, suggested changes (if
any), or actual changes. It is clear that Dr. Carper's tenta-
tive salary and increase remained as previously de-
termined.
Following this, the suggested salaries were submitted to
President Bertrand. President Bertrand reviewed the sug-
gested salaries and recommendations and flagged a few for
more information. The salary proposals were returned to
Mathis, Davis, and Walton for consideration in light of the
flagged items. Upon consideration, it appears that Mathis,
Davis, and Walton continued to support the tentative sala-
ries and increases as proposed and returned the proposals,
with explanations, to President Bertrand. Bertrand ap-
proved the proposed tentative salaries and increases as the
salaries and increases for the faculty for 1977-78.
The evidence concerning President Bertrand and his re-
view and suggestions as to salary increases indicates that
his questions on certain salaries were, in effect, questions
as to whether the amounts were excessive. One question
related to the increase in salary tentatively set for a faculty
member who was involved with the girls' basketball team.
Apparently, this reason was satisfactory to President Ber-
trand when he ultimately approved the salaries. President
Bertrand raised no question as regards the proposed $700
salary increase set for Dr. Carper.
Evaluations-specific disparate treatment
13. The facts reveal that no specific guidelines are given
departmental chairmen, associate deans, or others as to the
evaluation criteria to be used in judging performance of
individuals for annual evaluation purposes. It appears logi-
cal that the criteria used for purposes of promotion and
tenure would be relevant for annual evaluations of perfor-
mance. The facts reveal that the departmental chairmen,
associate deans, and others do essentially follow the crite-
ria for annual evaluation purposes set forth in the faculty
staff handbook as governing matters of promotion and ten-
ure. Such criteria are (1) teaching excellence, (2) service to
1174
THE BERRY SCHOOLS
the institution, (3) academic achievement, and (4)
professional growth. As noted, specific guidelines for pur-
poses of annual evaluation are not given, and thus individ-
ual chairmen or deans do not necessarily interpret the
criteria in the same manner when it comes to broadness or
other factors. It is clear that some of the chairmen interpret
teaching excellence as covering counseling of students,
some interpret "service to the institution" as covering in-
volvement with students in extracurricular activities, and
that the matter of departmental cooperation or duties is
considered. Further, it is clear that no guidelines for a
weighted evaluation of performance under the different
criteria are generally utilized. In this respect, although con-
sideration of faculty research and publications is included
in the annual evaluations of faculty, Berry is known as an
institution that does not follow a doctrine of "publish or
perish."
It is noted that the evaluation forms are not designed for
specific or weighted evaluation except for the simplistic nu-
merical evaluation of I, 2, or 3 for total performance. Al-
though it is indicated that "remarks" may be made by the
departmental chairmen, the associate deans, and perhaps
others, the form does not insure the documentation of rea-
sons for the evaluation of performance.
A part of the General Counsel's theory of the case relies
on the establishment of disparate treatment of Dr. Carper.
In this respect, evidence of Dr. Geisel's and an academic
associate dean's evaluations of Dr. Geisel's department,
and of Dr. Hoyt and an academic associate dean's evalua-
tion of Dr. Hoyt's department, was presented. The basic
evaluations were presented in documentary form. How-
ever, there was also testimony by Geisel, Abels, and Hoyt
relating to such evaluations.
Dr. Geisel evaluated four of his faculty members' perfor-
mance as 1, two as 2, and three as 3. Academic Associate
Dean Abels evaluated the same faculty members and gave
them similar ratings, except for Brumbaugh. Geisel had
rated Brumbaugh as 3 in performance, whereas Abels rat-
ed Brumbaugh as 2 in performance.
Without going into detail, the credited testimony of
Geisel reveals, in effect, that in considering each member
deserving of the rating given Geisel did not give great
weight to research and publications and that the real rea-
son for Carper's rating of 3 was Geisel's consideration of
problems of "friction" and departmental cooperation, The
difference in faculty time and tenure makes a comparison
of evaluations difficult. It is sufficient to say that the evi-
dence as a whole (considering the basis for Geisel's beliefs
about problems with Dr. Carper as compared to the lack of
evidence of a basis for believing problems existed between
Dr. Geisel and the other faculty members) does not reveal
a disparity of treatment by Dr. Geisel in his evaluations of
Dr. Carper and other members of his department.
Similarly, the evidence relating to the respective 1977
evaluations of Dr. Carper and Dr. Gonzalez does not re-
veal a disparity of treatment in the accordance of evalua-
tions. The evidence relating to Dr. Gonzalez' performance
and ability clearly reveals that his rating of I appears rea-
sonable. Considering the lack of evidence to reveal any
friction between Dr. Gonzalez and Dr. Hoyt compared to
the problems that existed between Dr. Geisel and Dr. Car-
per, the evidence does not reveal disparate treatment in the
evaluation ratings of the two for 1977.
14. Following the approval of salaries by President Ber-
trand, salary contracts were submitted to the various facul-
ty members, including Dr. Carper. Dr. Carper signed his
contract and returned it to Respondent.
Later. Dr. Carper made inquiries of various of Respon-
dent's officials and was referred from one to another of
those having a say in the salary determination. Unable to
get an answer that he was satisfied with, Dr. Carper filed
the charges in this case, averring that he had received a
substandard annual salary increase because of his having
engaged in concerted protected activity.
Additional evidence of animus
15. Excluding the question of whether animus is re-
vealed by the facts relating to the setting of Dr. Carper's
salary for 1977-78, the only evidence of releastic propor-
tions as to additional animus relates to a June 20, 1977,
conversation between Dr. Bertrand and Chalmers L.
Brumbaugh III. The animus findings in The Berry Schools,
234 NLRB 942 have previously been set forth.
Other evidence relating to Dr. Gonzalez' having been
with the "concerned committee" in 1975 and then chang-
ing his viewpoint, Dr. Gonzalez' salary increases after
March 1975, Dale Davis' involvement in the "concerned
committee" meeting and later change of position at the
school, and actions taken or not taken by individuals on
the ad hoc committee or the "concerned committee" lack
persuasive value in the determination of animus. I am per-
suaded from all of the facts that Dr. Gonzalez was not
"rewarded" because of any change of viewpoint on the
issues pursued by the "concerned committee" and the ad
hoc committee. I am also persuaded from all of the facts
that Dale Davis was not offered a change in position to
affect his protected concerted activity beliefs. Further, I
am persuaded that the overall facts relating to salaries of
various faculty members involved in the "concerted com-
mittee" meeting are insufficient to reveal reward or punish-
ment. Further, since the facts in the Board's decision, 234
NLRB 942, reveal leadership of Dr. Carper and other fa-
culty members in the activities discussed therein, the fact
that other faculty members engaged in such activity but
not to the same degree and have not been shown to have
been rewarded or punished is not of persuasive value in
resolving the issues in this case.
The facts as to what was said on June 20, 1977, by Dr.
Bertrand to Brumbaugh were presented by the testimony
of Bertrand and Brumbaugh. There is some dispute as to
the facts as revealed by such testimony.
Brumbaugh was initially employed by Respondent in
September 1972 and worked in the Department of Social
Sciences, teaching political science, until he resigned on
July 28, 1977. The chairman of the Department of Social
Sciences from September 1972 to April 15, 1975, was Dr.
Carper, who taught history. From April 15, 1975, to the
date Brumbaugh resigned, July 28, 1977, the chairman of
said department was Dr. Geisel, who taught sociology.
Brumbaugh wvas notified by Respondent on March II1,
1977. that his contract for the 1977-78 year would be a
1175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminal contract. The facts reveal that Respondent's ex-
pressed basis for such action was Brumbaugh's failure to
have completed his requirements for a doctorate.
On May 19, 1977, Brumbaugh saw President Bertrand
and requested reconsideration of Respondent's action. Re-
spondent refused to reconsider such action. Brumbaugh
and Bertrand apparently discussed the preparation of a let-
ter from Respondent recommending Brumbaugh for em-
ployment elsewhere.
Apparently, Brumbaugh and Bertrand discussed the de-
sirability of specific letters of recommendation addressed
to specific individuals or schools as contrasted to a "To
Whom It May Concern" type of recommendation. It ap-
pears that Brumbaugh desired to know the exact specifics
of the letter or letters of recommendation and requested
and received agreement to a "To Whom It May Concern"
letter. It appears also that the question of the letters of
recommendation were related to an attempt to enable
Brumbaugh to commence seeking new employment and
thus perhaps to enable Respondent to engage in staff plan-
ning and filling at an earlier date.
Respondent, apparently on March 24, 1977, prepared a
proposed "To Whom It May Concern" letter of recom-
mendation for Brumbaugh and a "Memorandum For The
Record." tO
On May 25, 1977, Brumbaugh went to President
Bertrand's office and received a copy of the letter of rec-
ommendation."1 At that time Brumbaugh signed the pre-
pared "Memorandum For The Record," which consisted,
in effect, of comments relating to the position held by
Brumbaugh, commitments concerning the Ph. D. degree,
and extracts of letters. Brumbaugh did not receive a copy
of the memorandum.
A review of the letter of recommendation and the memo-
randum, and the basis for the same, reveals that both Dr.
Bertrand and Brumbaugh were apprehensive about what
the other might do. Thus, Brumbaugh's preference for a
"To Whom It May Concern" letter of recommendation
instead of specific letters of recommendation indicates a
desire to know specifically what was being said in any let-
ter of recommendation. The suggestion in the letter by Dr.
Bertrand that more detailed information was available im-
plies that Dr. Bertrand might want to communicate con-
cerning the circumstances of Brumbaugh's termination
contract beyond what had been said. The prepared "Mem-
orandum For The Record" and the securing of
Brumbaugh's signature thereto is indicative of apprehen-
sion of controversy by Dr. Bertrand and a desire to narrow
factual conflict.
On or about June 20, 1977, Brumbaugh requested of
Joyce Morris, executive secretary to Bertrand, an appoint-
ment with Dr. Bertrand in order to secure a copy of the
"Memorandum For The Record." 12 Later, on June 20,
10 The "To Whom It May Concern' letter of recommendation might bet-
ter be described as a memorandum initialed by President Bertrand.
1l I note that said letter of recommendation contained language as fol-
lows: "I believe he should continue his teaching at another institution, in
view of his failure to meet the schedule (for the completion of his Ph. D.
degree) which he informed us in 1974 and again in 1975 that he would meet.
In this connection, more detailed information is available should such be
desired by a prospective employer."
1977, Morris notified Brumbaugh that President Bertrand
would meet with him and requested that it be on that date.
Brumbaugh met with President Bertrand that day and re-
ceived a copy of the March 24, 1977, memorandum.
On June 20, 1977 when Brumbaugh and Bertrand met,
the discussion went beyond the mere request for and ten-
der of the memorandum, as is revealed by the following
credited excerpts from Brumbaugh's testimony.13
Q. Can you elicit to the hearing, to the Judge what
this meeting was about with Dr. Bertrand, President
Bertrand?
A. Well, about the first thirty-five or forty minutes
of it was taken up with the conversation about a stu-
dent named Tom Brommel, who is an exchange stu-
dent from West Germany on a Rotary International
scholarship. Dr Bertrand told me that Mr. Brommel
had asked to address the Rotary Club in the city of
Rome and had asked Frank Barron for some fourteen
minutes of time, and Mr. Barron said, "You can only
have about five," and he took fourteen anyway, and in
his address to the Rotary Club, Dr. Bertrand told me
Tom Brommel was highly critical of actions by the
administration, including the termination notices to
me and to Professor Robert Dupree and was also
critical of the dorm regulations at Berry College which
he regarded as too conservative. Dr. Bertrand told me
that he was upset by Mr. Brommel's speech, that other
members of the Rotary Club were upset also by his
speech. He received a letter in fact from a Buddy Mit-
chell, who I assume sits here on the City Council, and
other comments from other individuals, including Ber-
nard Storey nad Frank Barron as to the inappropriate-
ness of Mr. Brommel's comments. He said at the next
12 I credit Bertrand's and Morris' testimony that Brumbaugh requested
the meeting of June 20, 1977. A leading question to Brumbaugh indicated
that Brumbaugh was summoned to said meeting. A consideration of the
entire questioning of Brumbaugh and his answers, however, reveals that
Brumbaugh could have believed the question to relate merely to the notifi-
cation of when Dr. Bertrand was available with respect to Brumbaugh's
request. To the extent that Brumbaugh's testimony might be construed that
he was summoned instead of being notified as to Bertrand's compliance
with Brumbaugh's request for a meeting. it is discredited. Considering all of
the facts. I construe Brumbaugh's testimony as to Bertrand's request as
referring to Bertrand's request that Brumbaugh's requested meeting be held
on June 20. 1977
11 Bertrand's testimony did not go into substantial detail as to what was
said on June 20. 1977. in the meeting with Brumbaugh. Bertrand described
Brumbaugh's testimony as a distortion of what was said, denied that he
made statements relating to deploring faculty members who pursued griev-
ances through the AAUP and NLRB, denied stating to Brumbaugh that if
he participated in the NLRB or AAUP procedures his name would be
plastered all over the country, admitted that he "conditioned" his support of
Brumbaugh but testified that it was conditioned upon Brumbaugh's comple-
tion of the Ph. D, degree, and testified in effect that he told Brumbaugh that
he should keep a "low profile" and not become a "national symbol."
Bertrand's testimony on many points with respect to the June 20, 1977.
conversation with Brumbaugh did not appear persuasive or complete. Con-
sidering the facts that the conversation on June 20, 1977, would appear of
great importance to Brumbaugh and perhaps of not as great importance to
Bertrand, that Dr. Bertrand obviously has many duties involving his atten-
tion. and all of the foregoing. especially the clear fact that the discussion
involved advice to keep a "low profile," I am persuaded that Brumbaugh's
testimonial version of the events is the more reliable and credible, and I
credit his version of the events over Dr. Bertrand's where in conflict. Be-
cause of the credibility questions presented, I find it proper to set the facts
in broad rather than narrow detail.
1176
THE BERRY SCHOOLS
Rotary meeting that he then responded. He read to me
his entire speech that he made at that meeting in
which he said that Mr. Brommel is a fine student, but
was young and misguided. He then went into a 1970
questionnaire that Berry College had given to the par-
ents of incoming students as to the views of the par-
ents on dorm regulations, whether they wanted mem-
bers of the opposite sex to meet behind closed doors in
the dorms, and he said that ninety-four or ninety-five
percent of the parents said no, they did not want that,
so he reported that to the Rotary Club, and he said
that even though Mr. Brommel had been critical of
him, that he would continue to support the Rotary
International exchange program at Berry College. I
asked him whether he had talked to Mr. Brommel. He
said he had not. I asked him whether he thought I
should talk to Mr. Brommel, and he said no, because
he's left the country at that point. He said that he did
feel that students only criticize the administration,
having been instigated to do so by others, including
faculty members, and I said, "Are you indicating that
I instigated Tom Brommel to criticize you?" And he
said, "I have no evidence of that. If I ever do have
evidence of that, then I will withdraw my support for
your candidacy as a professor elsewhere," and I said I
had not even seen Tom Brommel since March 20. We
discussed his career concerns rather than any criticism
of the administration.
He then went on to discuss various elements of my
own situation stemming from the termination notice
to me. On May 25th President Bertrand had given me
a memorandum for the record which involved state-
ments of fact with regard to my personal history, per-
sonnel history at the school. I asked him why he--on
June 20th I asked him why he asked me to sign that,
and he said merely to verify the points, the quotations
in the memorandum that were written by me.
He then discussed his activities in the afternoon of
May 25th when he went before a number of students
who were questioning the decision he made and told
them the reasons why he had given me the termination
notice. I asked him in view of his longstanding policy
not to reveal the reasons for personnel reasons why he
had chosen to do so then,'and he simply said that the
letter I had requested, a to whom it may concern let-
ter, was therefore public, and he was pressed by the
students to reveal the reasons why he had terminated
me. He then went into the question of the process that
led up to the termination. I was led to believe that-
THE WrrNEss: He told me that he deplored any fa-
culty member who instigated students to criticize him
or the administration, that he deplored any faculty
member who urged students to transfer from Berry
College and that he deplored any faculty member who
went to the NLRB or the AAUP for aid and assis-
tance. He also said that if I went to the AAUP or the
NLRB for assistance that my name would be plas-
tered all over the country and no one would want to
hire me. So he urged that 1 not do so.
He then also urged me about three times that if I
ever disappointed him in any way that he would with-
draw all his positive support for my candidacy to find
a job elsewhere.
With respect to the June 20, 1977, conversation between
Dr. Bertrand and Brumbaugh, I am persuaded that
Bertrand's remarks that he deplored faculty members who
went to the NLRB or the AAUP for aid and assistance do
not in and of themselves reveal an expression of animus.
Nor am I persuaded that Bertrand's remarks to Brum-
baugh that if he went to the NLRB or AAUP for assistance
his name would be plastered all over the country and no
one would want to hire him were intended to convey that
Respondent would cause Brumbaugh's name to be plas-
tered all over the country. However, Bertrand's remarks to
Brumbaugh that if he, Bertrand, were ever disappointed in
Brumbaugh in any way he would withdraw all his positive
support for Brumbaugh's candidacy elsewhere, in the con-
text of the total conversation and remarks about deploring
faculty members' actions in going to the NLRB or AAUP,
must be viewed as an expression of animus toward employ-
ee exercise of protected concerted rights.'4
Additional questions of disparate treatment
16. The question of the 1977 evaluation of Dr. Carper's
performance compared to Dr. Gonzalez' performance and
his 1977 evaluation of performance has already been dis-
cussed.
There are several other areas for consideration regarding
disparate treatment. First, the evidence relating to the sala-
ries and wage increases of faculty members who received
ratings for performance of 3 does not reveal that Dr. Car-
per received a wage increase out of line with other faculty
members receiving such ratings.
There was some evidence introduced relating to those
who had been on the 1975 ad hoc committee to study the
advisability of collective bargaining and the salaries and
increases of such members. Except for Dr. Carper and Dr.
Gonzalez, virtually no evidence was presented as to the
ability, performance, and precise evaluations of such indi-
viduals. Dr. Cantrell's salary for 1977 does not appear cor-
related to the evaluation of her performance for the pre-
ceding year. It is clear that Dr. Cantrell's performance for
1976 was evaluated either as 2 or as I. Her wage increase
for 1977 was $700 and appears below average. Considering
the totality of the evidence, I find the evidence as to the ad
hoc committee to be insufficient to reveal factual findings
of disparate treatment.
There was also evidence that Dr. Carper was one of four
Dana Professors and that after 1975 there has been a
change in the salary relationship of Dr. Carper and the
other Dana professors. However, as to the ability, perfor-
mance, and evaluations of such other professors in the
years involved and the salaries they received, insufficient
evidence has been presented to warrant findings of dispa-
rate treatment.
141 note that Bertrand testified as to his positive support of the AAUP
and as to expressed statements supportive of individuals' nghts re the
NLRB and AAUP. The overall facts reveal that such statements by Ber-
trand have been made. The question presented in this case is not whether, in
the abstract, such principles are supported but whether, when the issues
present themselves in a practical measure, they are supported or fought.
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There was some pursuit of an apparent contention that
Dr. Gonzalez received better salary considerations after
1975 because of his alleged abandonment of viewpoints or
activities concerning the purposes of the 1975 "concerned
faculty" meeting. The evidence as a whole is insufficient to
reveal that Dr. Gonzalez' salary increases for the years af-
ter 1975 were based upon such considerations. The record
is clear that Dr. Gonzalez had excellent ability and per-
formed in accordance with such ability and that Dr. Hoyt,
not unsympathetic to the concerted activities involved in
this case, considered Dr. Gonzalez to be a fine teacher,
warranting a high evaluation."s
Contentions and Conclusions
The General Counsel contends that Respondent violated
Section 8(a)(1) of the Act by determining for, and granting,
Dr. Carper a substandard wage increase for 1977-78. The
General Counsel contends that Dr. Carper in 1975-76 and
1977 engaged in various protected concerted activities, that
the facts reveal that Respondent had animus against em-
ployee engagement in protected concerted activities, that
Dr. Carper had outstanding ability and performance, that
evaluation of Dr. Carper's performance for 1976 was not in
accord with his ability and performance, and that the fail-
ure to grant Dr. Carper at least an average wage increase
reflects that the wage increase granted was low because of
Respondent's animosity toward Dr. Carper for having en-
gaged in protected concerted activities.
Respondent contends that the General Counsel has not
established the necessary facts to support a case of viola-
tive conduct, denies all of the General Counsel's major
contentions, and contends that Dr. Carper's salary was de-
termined as all other salaries and increases were, by an
evaluation and salary determination procedure of several
steps to insure a proper salary determination.
Considering all of the facts, it is clear that Dr. Carper
engaged in protected concerted activities in 1975, 1976,
and 1977. It is clear that the filing of charges and participa-
tion in Cases 10-CA-11266-1, -2, and -3, resulting in the
decision in The Berry Schools, supra; the filing of unfair
labor practice charges in 1976; and the 1977 motions con-
cerning wage increases and establishment of a sabbatical
program constitute conduct of a protected concerted na-
ture. It is also clear that Dr. Carper's involvement in the
March and April activities of the "concerned faculty mem-
bers" and the ad hoc committee to study the advisability of
collective bargaining was involvement in concerted activi-
ties for which he would be protected except for the fact
that he was a supervisor at the time. Respondent argues
that the conduct engaged in by Dr. Carper as a supervisor
offers no protection for Dr. Carper as regards the 1977
events. Respondent cites Board case law relating to alleged
employer reprisals against an employee who had engaged
in concerted activity as a supervisor, reasonably close to
the time of transition from supervisor to employee status,
wherein the Board found no violation because the supervi-
"IThe evidence relating to Dale Davis' initial involvement in the 1975
concerted activities and his later job change is similarly insufficient to have
persuasive value in revealing disparate treatment as regards Dr. Carper
sor's conduct was not protected. In essence, the Board
found in such cases that respondent's conduct was solely
directed toward the former supervisor because of his con-
duct as a supervisor and, therefore, not violative of the Act.
The Board construed respondent's response to the supervi-
sor's concerted activity as delayed by directly related there-
to. Where, however, as in this case, a great time period has
elapsed between the conduct of the supervisor and Re-
spondent's actions toward the former supervisor when an
employee, another question is presented. Is the Respon-
dent's conduct motivated by animus directed toward con-
certed activities and a belief that the employee will engage
in or is engaging in concerted activity because of knowl-
edge of his past actions? If so, such discriminatory conduct
or conduct that interfered with the employee's right to en-
gage in protected concerted activities would be violative.
Because of the pass tge of time between March and April
1975 and the events of 1977, I am persuaded that Respon-
dent had a belief that Dr. Carper would engage in concert-
ed activities because of his 1975 conduct.
The facts are also clear, as found in The Berry Schools,
supra, and as evidenced by Dr. Bertrand's conversation
with Brumbaugh, that Respondent has animus toward em-
ployees engaging in protected concerted activities.
The critical question, however, is whether Respondent
has treated Dr. Carper in a disparate manner regarding his
1977-78 salary increase as compared to other employees.
Thus, the evidence relating to the evaluation and salary
determination process and disparate treatment must be
considered. The burden of proving violative conduct is on
the General Counsel. I note, however, that the facts relat-
ing to Respondent's evaluation and salary determination
process do not support Respondent's contentions to the
effect that the steps and different evaluations insure sala-
ries correlated to merit except in a very rough way.l6 Were
the facts in such regard consistent with Respondent's con-
tentions, considering Dr. Carper's ability and performance,
such facts would add weight to the General Counsel's case
and make the ultimate decisions in this case closer.
Considering all the facts, Dr. Carper's past salary his-
tory, Dr. Cantrell's 1977 salary increase, the past evalua-
tions of Dr. Carper, and the 1977 evaluations of Dr. Cant-
rell, the facts do not reveal a necessary correlation of salary
or increases with evaluations. Considering Dr. Geisel's and
Dr. Carper's departmental relationship and problems, and
the absence of evidence of similar problems between Dr.
Geisel and other faculty members or other departmental
chairmen and faculty members, the evidence of evaluations
of Dr. Carper as compared to evaluations of other faculty
members does not reveal disparate treatement.
Considering the evidence of ability and performance and
evaluations of the faculty members as presented in this
case, the evidence relating to treatment of the Dana Profes-
sors and the ad hoc committee, the comparison of salaries
and increases of professors receiving 3 ratings, the evidence
is insufficient to prove that Dr. Carper has been treated in
a disparate manner.
16 It is noted that as part of Respondent's salary determination process
"past inequities" were considered. If so, such a pnnciple, after consideration
of the facts presented in this case, might eliminate the possibility of filing
future charges.
1178
THE BERRY SCHOOLS
In sum, the evidence is insufficient to show that the
1977-78 salary increase for Dr. Carper constituted dispa-
rate or discriminatory treatment or interfered with his or
others' protected concerted activities. Accordingly, it will
be recommended that the allegation of conduct violative of
Section 8(aX1) by the alleged granting of a substandard
wage increase to Dr. Carper in 1977-78 be dismissed.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
I. The Berry Schools, Respondent, is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The facts do not establish that Respodnent has vio-
lated Section 8(a)() of the Act by granting a substandard
wage increase to Dr. Carper for 1977-78.
[Recommended Order for dismissal omitted from publi-
cation.]
1179