Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Sep 11, 1964

148 N.L.R.B. 949 (N.L.R.B. 1964)

ATKINS SAW DIVISION, BORG-WARNER CORPORATION 949
VI THE REMEDY
Having found that the Respondent has discriminatorily reduced the wage rates
of employees Thurmond Y Green , Talbert Gabbard, Homer H Logan, and Lonnie
Henry Todd , in violation of Section 8(a) (3) of the Act, I shall recommend that the
Respondent cease and desist from the foregoing conduct and that it reinstate the rate
of pay paid to these employees prior to the discrimination or the adjusted pay which
may have resulted from any general pay raises since that time without any limitation,
however , upon the Respondent to reduce these employees in a nondiscriminatory
fashion to pay rates equal to and consistent of other employees doing the same work
I shall also order that the Respondent make whole these individuals for any losses
they may have suffered because of the discrimination against them commencing with
the day they had their wage rates reduced up to and including the dates that they
are reinstated to their former wage rates, such reimbursement to be computed on a
quarterly basis in the manner established by the Board in F W Woolworth Company,
90 NLRB 289, 291-294, with interest added thereto at the rate of 6 percent per
annum in accordance with Isis Plumbing & Heating Co, 138 NLRB 716
In view of the seriousness of the unfair labor practices committed by the Re-
spondent as heretofore found , I shall recommend that the Respondent be ordered to
cease and desist from in any manner infringing upon the rights guaranteed its em-
ployees by Section 7 of the Act
CONCLUSIONS OF LAW
I Dierks Forest, Inc, is an employer engaged in commerce within the meaning
of the Act
2 Lumber and Sawmill Workers Local Union No 3089 , United Brotherhood of
Carpenters and Jointers of America , AFL-CIO, is a labor organization within the
meaning of the Act
3 By discriminatorily reducing the wage rates for its employees , the Respondent
violated Section 8 (a) (3) and (1) of the Act
4 By failing to notify the Union and bargain with it with regard to the reduction
of the wage rates of the aforesaid employees , the Respondent violated Section
8(a)(5) and (1) of the Act
5 By failing timely to furnish the Union with a complete set of wage data as
requested by the Union the Respondent violated its obligation to bargain as set forth
in Section 8(d) and Section 8(a) (5) and (1) of the Act
6 By failing and refusing to bargain in good faith with the Union as the exclusive
bargaining representative of its production , maintenance , and yard employees at the
mill supply and D & E shop at De Queen , Arkansas, and its treating plant at Process
City, Arkansas, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (5) and (1) of the Act
7 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
[Recommended Order omitted from publication ]
Atkins Saw Division , Borg-Warner Corporation and United
Steelworkers of America , AFL-CIO. Cases Nos 26-CA-1210
and 26-CA-1699 September 11, 1964
DECISION AND ORDER
On June 3, 1964, Trial Examiner "T Edwin Youngblood issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and iecommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision Thereafter, Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief
148 NLRB No 98
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearings and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in these cases, including the Trial Examiner's Decision, the
exceptions, and brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the exception noted
in footnote 1, below.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Atkins
Saw Division, Borg-Warner Corporation, its officers, agents, succes-
sors, and assigns, shall take the action set forth in'the Trial Examiner's
Recommended Order 2
IT IS HEREBY FURTHER ORDERED that the complaint in Case No.
26-CA-1210 be, and it hereby is, dismissed.
1 We find it unnecessary to rely or pass upon Respondent 's presettlement conduct In-
asmuch as it . would not materially , affect the scope of our Decision and Order herein.
Accordingly , we do not adopt the Trial Examiner ' s findings in this respect and shall
dismiss the complaint in Case No . 26-CA-1210 without passing on its merits.
2 The Trial Examiner ' s Recommended Order is amended by deleting therefrom para-
graph ( f) and by relettering paragraph ( g) as paragraph ( f). The appendix is hereby.
amended to conform with the,amendment in the Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE,
Upon a charge and first amended charge filed on January 22 and February 28,
1962, respectively, in Case No. 26'CA=1210, and a charge filed on December 4,
1963, in Case No. 26-CA-1699, by United Steelworkers of America , AFL-CIO,
herein called the Union , the General Counsel of the National Labor Relations
Board , by the Regional Director for Region 26 (Memphis, Tennessee ), issued a
consolidated complaint on January 24, 1964, alleging the commission of unfair labor
practices by Respondent in violation of Section 8(a) (1) and affecting commerce
within the meaning of Section 2(6) and ( 7) of the National Labor Relations Act,
herein called the Act . The consolidated complaint was further amended at the hear-
ing which was held before Trial Examiner W. Edwin Youngblood in Greenville,
Mississippi , on March 3 and 4 , 1964. - Respondent filed an answer denying the
alleged unfair labor practices. Briefs were received from the General Counsel, the
Union , and Respondent , and have been duly considered. ,
Upon the entire record in the consolidated cases and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
,Respondent , an Illinois corporation , is engaged at its plant in Greenville , Missis-
sippi , in the manufacture of`saws. During the 12 months preceding the issuance of
the consolidated complaint, Respondent sold and shipped from its Greenville , Missis-
ATKINS SAW DIVISION, BORG-WARNER CORPORATION 951
sippi, plant , products valued in excess of $50 ,000 directly to points outside the State
of Mississippi . During this same period, Respondent purchased and received at
its Greenville , Mississippi , plant , materials valued in excess of $50,000 directly from
points outside the State of Mississippi . Respondent admits, and I find , that it is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. INTERFERENCE, RESTRAINT, AND COERCION
Prefatory Statement
On May 31, 1961, the Union filed a charge alleging that Respondent had violated
Section 8 (a) (3) of the Act.' As Respondent states in its brief, it "was put on notice
of organizational activity in its plant by the filing" of this charge. On October 31,
1961, the Union wrote Respondent naming the employee members of its organizing
committee. On January 22, 1962, the Union filed the charge, as noted above, against
Respondent in Case No. 26-CA-1210. On March 9, 1962, the complaint was issued
in Case No. 26-CA-1210. On March 16, 1962, the Union filed its petition in Case
No. 26-RC-1754. On March 30, 1962, the charge in Case No. 26-CA-1250 was
filed by the Union, which charge was later withdrawn. On April 27, 1962, the parties
entered into a settlement agreement in Case No. 26-CA-1210. The notice attached
to the settlement agreement provided in part as follows:
We will not maintain or• enforce any rule prohibiting any of our employees
from engaging in activities on behalf of any union on company property on
nonworking time. -
We will not interrogate our employees concerning their union activities or
desires.
The notice also recited that Respondent would not "in any manner" interfere with,
restrain, or coerce its employees in the exercise of their rights under the Act. On
June 1, 1962, an election was held which the Union lost. On September 30, 1963,
the Union wrote another letter to Respondent notifying it of the names of employee
members of its organizing committee. On Octber 8, 1963, the Union filed the
petition in Case No. 26-RC-2060. On November 7, 1963, the Union wrote
Respondent adding the names of four,employees to its list of employee members of
its organizing committee. On November 15, 1963, an election was held which the
Union lost. On December 4, 1963, the Union filed the charge in Case No. 26-CA-
1699. -On January 8, .1964, the Regional Director,, because of the charge in Case
No. 26-CA-1699 and the subsequent alleged unfair labor practices of Respondent,
set aside the settlement agreement. On January 24, 1964, the consolidated complaint
in Cases Nos. 26-CA-1210 and 26-CA-1699 was issued. General Counsel contends
and Respondent denies that the Regional Director acted properly in setting aside the
settlement agreement because of Respondent's conduct subsequent to the settlement
agreement . We will therefore first consider, Respondent's postsettlement conduct.
A. Postsettlement conduct
1. Interrogation , threats of loss of employment and harder working
conditions , and instructions to employees
Sometime between November 7 and 15, 1963, employee Gene Coleman had a
conversation at his machine with Supervisor Chester Wells? Wells said that if the
Union came in the employees would have to work much harder , adding that they
would have to account for "every minute " of their time if the Union was voted in?
During the week of the election of November 15, 1963, employee James Mahan
was working at his machine in the blockhouse when employee Alfred Kerr came-in
to sharpen a pencil . At this point , Plant Superintendent Roy Williams came in.
I This charge was later dismissed.
2 The pleadings establish that Wells and all other supervisors referred to herein are
supervisors within the•meaning of the Act.
3 Based on the credited and undenied testimony of Coleman ; Wells did not testify.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williams began talking to Kerr and stated that the Respondent paid as good wages
as anybody in the area and then asked Mahan how long he had been there. Mahan
replied, "Just a few months." Williams then stated that he meant altogether, "that
it wasn't the Company's fault" that Mahan had been fired. (Mahan had been dis-
charged in May,1963 and rehired in July.19,63.) Mahan agreed that his discharge'
had not been the fault of Respondent Williams then stated that if the Union had
been "in" Respondent might not have been able to rehire Mahan?
Also during the week of the election of November 15, 1963, Elmer D. Robinson,
president' and general manager of Respondent, talked to the employees in, groups.
The next day employee Guy Sudduth was talking with Supervisor Howard Mabe near
Mahan. Mabe turned to Mahan and asked Mahan what he thought about Robinson's
speech. Mahan replied that he • did not believe it was "all true," that he did not
believe any company that big could operate in the red for that long. Mabe said that
he believed the Company was in "bad financial shape" and that if the Union were to
come in it would not help their financial condition any Mabe then reminded Mahan
of his discharge and unemployment a few 'months before and said, "We might all- be
in that position again if the Union came in." 5 - - =.
On September 30, 1963, as noted above, the Union sent Respondent a list of names
of employees on its organizing 'committee A few days later, Mabe told employee
Sudduth that he had-seen his name on the letter and said that he felt that Sudduth was,
making a mistake being on the committee and trying to organize the Union .6
On Tuesday before' the election of November 15, 1963, Supervisor John Ashley
asked employee Alfred Kerr if he was ready- for the "big day." Kerr asked "What
big day?" to which Ashley replied. "The 15th." Kerr said, "Yes, sir,'I have been
ready for that day for a long time." Ashley then asked Kerr-how he was going to
vote. Kerr replied that Ashley should know because his name was on the committee,
list. Ashley then asked Kerr if he was not, in debt and when Kerr replied. in the
affirmative, Ashley asked him how he expected to pay his bills without"a job. Kerr
asked what Ashley meant, to which Ashley replied, "If the Union comes in, there
is a possibility that this plant might close down and we won't have a 'ob. ; 7
On Saturday afternoon, October 12, between 3 and 3:30, Kerr had aconversaton
with his supervisor, Clifton Tolar, at Tolar's desk. Tolar told Kerr that he had
seen where Kerr was on the organizing committee. When Kerr admitted, that was
correct, Tolar told him, "go tell them to take [your] name off of,that because [you]
had made a mistake when [you] signed it." Kerr stated that the only mistake he had
made was voting "No", in the first union elections - - „
Concluding Findings 9
I find that Respondent violated Section 8(a)(1) of the Act by: (a) Wells' threat
to Coleman that employees would have to work much harder if the Union came in;
(b) Williams' threat to Mahan that if the-Union"had been in-when'Respondent re-
hired Mahan, it might not have; been able to rehire him; (c) Mabe's,threat to Mahan,
and Sudduth in effect that if the Union came in they might all be 'discharged and
4 Based on the credited and ubdenied testimony of Mahan - ,
s The foregoing is based on the credited and undenied testitony ,of Mahan and Sudduth.
Mabe testified that he belie v̀edrthat the ' subject of , strikes at the Indianapolis ;plani fol:
lowed' by' loss of customers was'a part 'of this conversation - Mabel'further testified that'
he was trying to make it clear that he did not think the Company could stand another
strike like that Mahan did not recall anything being said about strikes in this conversa-
tion In fact , he denied four times that strikes were mentioned . Former employee
Sudduth did not recall strikes being mentioned . Both Mahan and' Sudduth impressed me
as sincere and candid witnesses I credit their testimony and reject Mate's contrary
testimony.' . , - , 1 .1,
J
,
8 The foregoing is based ' on the credited , and undenled testimony of Sudduth.
7Ashley denied asking Kerr how he was going to vote and testified that he said that if
the Union came in and there was a strike,'tliere was a possibility, due to the Company's
financial position , that all the employees might lose their jobs : ' Both Kerr and-eriiployee
Samuel Brocato; who,overheard the,4conversation,' denied that a strike was mentioned.
I credit the testimony of Kerr and Brocato upon; which the 'foregoing is based:
s The foregoing is based on the ciedited and undenied testimony of Kerr - -Tolar-did
not testify
4In'its brief , Respondent contended that the statements , of its supervisors were "iso-
lated , infrequent , and innocuous." I do not consider this conduct to be either isolated or.
innocuous .' Accordingly , this contention is rejected. , ,
ATKINS SAW DIVISION, BORG-WARNER CORPORATION 953
therefore unemployed; (d) Ashley's interrogation of Kerr as to how he was going to
vote in the election; 10 (e) Ashley's threat to Kerr,that if the Union came in, the plant
might close down and they would be without jobs; (f) Tolar's instruction to Kerr
to remove his name from the list of the Union's organizing committee. In my
opinion, a supervisor's instruction to an employee working under him to refrain from
engaging in union activity is reasonably calculated to interfere with, restrain, and
coerce him in his Section 7 rights.11
2. The no-solicitation rule of June 15, 1-963
Paragraph 22 of the consolidated complaint alleges that:
Respondent, since on or about June 15, 1963, at its Greenville, Mississippi,
plant, has promulgated and enforced the following rule:
No solicitations or distributions of printed or written matter will be per-
mitted during working time on Atkins Saw property by anyone for member-
ship applications, petitions, enrollments, or funds for any club or organiza-
tion. Also prohibited is the distribution of handbills or other written or
printed matter in any work area of the plant at any time. Any solicitations,
including those for recognized charities, must be approved in writing by the
Personnel Manager.
In its answer to the consolidated complaint, Respondent admitted the promulgation
of the rule described in paragraph 22 of the said complaint, but denied that the rule
violated the Act and also denied that it had enforced the rule. Respondent further
alleged in its answer that solicitations by and on behalf of the Union were permitted
and that there was no interference with such solicitations or activity.
The General Counsel took the position at the hearing that the mere existence of
the rule violated the Act., General Counsel further stated he did not intend to offer
any evidence as to the enforcement of the rule with respect to any particular em-
ployee. In his brief, the General Counsel argues that "the mere existence of the
rule, independent of any evidence of its discriminatory or nondiscriminatory enforce-
ment, consitutes a violation of Section 8(a)(1)." Let us consider then whether the
rule as stated is violative of the Act. The rule is set forth in the "Employee Hand-
book" which is distributed to employees.12 The principal argument made by General
Counsel in his brief is in connection with the last sentence of the rule, namely, "Any
solicitations, including those for recognized charities, must be approved in writing
by the Personnel Manager." As this sentence begins "Any solicitations, ." it
does not purport to limit the instruction to nonunion solicitations and is so broad
that it impliedly must be construed as applying to solicitations with respect to union
membership during employees' nonworking time .13 In J. R. Simplot Company Food
Processing Division, 137 NLRB 1552, 1553, the Board stated that it is erroneous to
assume that an employer "can predicate the exercise of'-a Section'7 right upon its
own authorization." Moreover, the rule as stated is clearly not limited to solicita-
tions for money as Respondent contends in its brief. Accordingly, what is involved
therein is a no-solicitation rule applicable to employees -during nonworking time and
therefore presumptively invalid in the absence of evidence that special circumstances
make the rule necessary in order to maintain production or discipline.14 Respond-
ent introduced no evidence to show such special circumstances nor does it contend
that they exist in connection with this rule. The inhibiting effect of this rule on
employees receiving handbooks would scarcely be prevented or removed even if we
were to assume, as Respondent contends, that the rule was not enforced or even if
the rule was not interpreted by Respondent to apply to employees' nonworking time.
10I am, unable to accept Respondent's contention made in its brief that Ashley's ques-
tion should be dismissed as "joking" in view of the context in which the interrogation
occurred
"I do not consider Mahe's statement to Sudduth about having seen his name on the
Union's letter, and further statement that he "felt like" Sudduth was making a mistake
being on the Union's committee and organizing for the Union to be violative of the Act.
I believe and find that these statements were protected by Section 18(c) of the Act.
'"General Counsel's Exhibit No. 2(b).
i3 Remington Rand Corporation, 141 NLRB 1052, 1056.
14 Cf. Walton Manufacturing Company, 126 NLRB 697, 699.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find, therefore, as the General Counsel contends, that by promulgating and main-
taining this rule, Respondent violated Section 8(a) (1) of the Act.15
3. Threats in exploitation of racial prejudice
The consolidated complaint, as amended, alleges that Respondent, by certain named
supervisors on or about certain dates, "in exploitation of racial prejudice, threatened
its employees that they would displace employees with Negroes and would enforce
association with Negroes if the employees selected the Union as their representative
for the purpose of collective bargaining."
As noted above, the hearing in these cases took place in Greenville, Mississippi.
The attitude of the average male white southerner towards Negroes is therefore in-
volved herein. In fact, at least one of the witnesses for the General Counsel, Gene
Coleman, journeyed to Oxford, Mississippi, during the recent disturbances there
involving racial strife. Although Negroes' are presently employed in the plant, they
use separate restrooms and separate drinking fountains from the whites.16 This,
then, is the background in which the following conduct occurred.
On November 14, 1963, about 8:45 a.m., Supervisor Chester Wells talked to
Coleman at his machine. Wells told Coleman that he would hate to see a Negro
running his machine, to which Coleman replied that he would also, but that he was
not worried about it. Wells then left. There were about 16 employees on the
line Coleman worked on, none of whom were Negroes although Negroes -were em-
ployed in the plant in areas near where Coleman worked.'?
A few days after the Union filed its petition on October 8, 1963, employee James
Mahan was engaged in a conversation with employee Doyle Daniels about the-Union
in the wheelroom. Daniels asked Mahan what he thought the results of the, election
would be. Mahan answered that he believed about 65 percent would be • for the
Union Daniels disagreed. As they were talking, Supervisor Bill Miller walked in
and told Mahan that if the Union came in, the Negro would be treated the same as
a white person, and if he had seniority he would get the job. Miller further stated
"that we would have to use the same restroom facilities and the same drinking foun-
tains and that he could not just promote a person according to his ability but he
would have to go solely by seniority." This concluded the conversation.'s Miller,
who formerly worked in Respondent's Indianapolis, Indiana, plant, where he was a
member of the Union, admitted, however, on cross-examination that white and Negro
employees used separate restrooms and drinking fountains at the Indianapolis plant.
Sometime after the Union's letter of September 30, 1963, to Respondent, and
during the Union's preelection campaign, employee Alfred Kerr had a conversation
with Supervisor Clifton Tolar. Tolar asked Kerr if he would help a Negro employee
named John Hall. Kerr had done so in the past but refused on this occasion saying
he "just couldn't do it."' Tolar said that he could not make him do it but if the
-Union came in the plant, "you may have to work with him. , You may have to, use
the same restroom and water fountain facilities and he may even be a foreman out
here." Kerr said, "This could never happen in Mississippi." Tolar replied, "If the
Union comes in, there is nothing that we can do about it, none of us. In a union
every man is equal." Kerr told Tolar that he thought the. Union was coming in to
help both races and he did not think-that the Union would cause trouble between
the races: At this point Supervisor John Ashley walked by and said that employees
might have to, use the same water fountains and the same restroom facilities if, the
Union came in.'s
Concluding Findings
Wells' statement tto ' Coleman about a Negro running his machine 'in the circum-
stances of this case clearly refers to his being replaced by a Negro if the Union
became the collective-bargaining representative. , As such it is violative of the Act
15 Cf J. R. Stimplot Company Food Processing Division, supra; see also Walton dfanu-
factursng Company, supra. Respondent posted a notice on its bulletin board (Respond-
ent's Exhibit No 4) prohibiting speeches in the lunchroom General Counsel did not
allege in the consolidated complaint nor does he contend in his brief that this notice was
violative of the Act. Accordingly, I do not reach the question of whether this notice
violates the Act
18 The record indicates that a separate seniority policy prevails also. ,
n Based on the credited and undenied testimony of Coleman
18 Based on the credited testimony of Mahan. I reject Miller's testimony that his state-
ments to Malian were merely responses to questions Mahan credibly testified that it
was Miller who started the conversation.
11 Based on the credited and undenied testimony of Kerr.
ATKINS SAW DIVISION, BORG-WARNER CORPORATION 955
because the statement constitutes a threat to Coleman's job tenure 20 The other state-
ments made, however, refer to enforced association between whites and Negroes,
e.g , sharing the same restrooms and drinking fountains.21 Here the resolution of the
question is not so clear. True enough, the implication of the supervisors' statements
is that the Union has certain practices affecting the races which the Employer would
establish in this plant if the Union became collectivebargaining representative. For
example, Supervisor Bill Miller's statements to Mahan were couched in words of
what would happen, not in terms of a mere prediction of what might happen. In
addition, and further illustrating the point that the Union's racial practices would
be established in the plant, is Supervisor Tolar's statement to Kerr. After Tolar
warned Kerr that if the Union came in, whites might have to use the same restrooms
as Negroes and Kerr protested that this could not happen in Mississippi, Tolar said,
"If the Union comes in, there is nothing we can do about it, none of us." I there-
fore find that Respondent through its supervisors and a,ents named above threatened
its white employees with changed working conditions involving enforced association
between the races if the Union became the collective-bargaining representative of
its employees 22 Thus, Respondent did not merely "limit itself to truthfully setting
forth another party's position on mattei s of racial interest." 23 But is it unlawful
to threaten employees with coercive action that may be lawful if taken? An em-
ployer under proper circumstances could lawfully require white and Negro em-
ployees to use the same restroom facilities and drinking fountains. On the other
hand, in my opinion, if the evidence establishes that these requirements were instituted
in a southern plant such as this in reprisal because the white employees selected
a union as their bargaining agent such action might well be violative of the Act. For
example, an employer may have a practice of lending money to employees without
interest. He could lawfully discontinue the practice. On the other hand, this em-
ployer would violate the Act if he discontinued the practice in reprisal because his
employees selected a union as bargaining agent. Just so, it would be unlawful to
threaten employees with discontinuing the lending practice or with changed working
conditions as herein if the purpose is to coerce- employees into voting against a union.
The coercive effect on the employees of such threats is no less because the threatened
action could under proper circumstances be lawfully taken. I cannot read into the
above statements by Respondent's supervisors to its employees merely that the
changes in working conditions referred to would take place as the result of the orderly
process of collective bargaining. In the context in which they were made, I am
persuaded that these statements were designed to and did reasonably tend to coerce
these white employees into voting against the Union by convincing them of the
inevitability of these changes if the Union became bargaining representative. I
therefore find that Respondent violated Section 8(a)(1) of the Act by threatening
its white employees with changed working conditions -involving enforced association
with Negroes if they selected the Union as their collective-bargaining representative24
In view of the conduct found above to be violative of the Act, it is clear that the
settlement agreement failed to accomplish its purpose25 I find, therefore, that the
Regional Director acted properly in setting aside the settlement agreement. We will
now consider the presettlement conduct of Respondent.
B. Presettlement conduct
General Counsel's motion to withdraw the allegations of paragraphs 7, 8, 9, 10,
and portions of paragraph 11 of the consolidated complaint was granted at the hear-
ing. General Counsel offered the testimony of employee Matt Addison in support
of the remaining portions of paragraph 11. • Addison's testimony was too garbled.
21 Boyce Machinery Corporation, 141 NLRB 756, 763
21 It helps Respondent little to argue, as it does in its brief, that its supervisors were
under instructions not to discuss racial issues with employees when, in fact, they did so.
22 The record does not answer the question of the Union's actual racial practices. View-
ing the case in the light , most , favorable to Respondent, I assume the truthfulness of the
super, isors' .tatements reearding the Union's racial ' practices.
21 Cf. Sewell Manufacturinq Company, 138 NLRB 66, ,71-72.
- 24 Cf. Empire Manufacturing Corporation, 120 NLRB 1300, 1317; Petroleum Carrier
Corporation of Tampa; Inc-, 126 NLRB 1031, 1039.
• ,2a In its brief, Respondent contends,the settlement ;' agreement should not, be set aside,
and the earlier charge reopened even if its conduct subsequent to ,the execution of the
settlement agreement was unlawful. To accept this contention might tend to encourage
Respondents to engage in conduct•in breach of the provisions of settlement agreements
secure in the knowledge that they would do so with impunity insofar as the earlier charge
was concerned Thus, the deterring effect of the settlement agreement would tend to-be
removed. Accordingly, this contention is rejected . •
'956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vague , and contradictory to base a finding upon . Accordingly , it will be recom-
mended that paragraph 11 of the consolidated complaint be dismissed.
1. The no-solicitation rule of July 23, 1961
It is undisputed that the following rule was contained in employee handbooks
distributed to employees:
No solicitations will be permitted on Atkins Saw Division property by anyone
for membership applications, petitions, enrollments or funds for any club or
organization. Also prohibited is the distribution of handbills or other printed
matter on Company property. The one exception to this is the solicitation of
funds for a recognized charity, but only with the specific written approval of the
Personnel Manager.
Since this rule is not limited to worktime and work areas and Respondent intro-
duced no evidence to show special circumstances requiring the rule in order to main-
tain production or discipline, I find the rule violative of the Act 26
2. The granting of benefits to employees
On May 31, 1962, the Union filed a charge alleging Respondent had violated Sec-
tion 8(a) (3) of the Act, thus in effect putting Respondent on notice of union activity
in the plant. On October 31, 1961, the Union wrote a letter to Respondent giving
the names of employees on its organizing committee and notifying Respondent that
its employees were actively engaged in promoting the Union .27
Respondent by letters to its employees dated December 8, 1961, December 15, 1961,
and February 16, 1962,28 granted its employees, respectively, a half-day holiday with
pay, gift certificates redeemable for $10, and general wage increases of 5 cents an
hour.
It is clear from the record that the Union was commonly referred to as the "out-
siders" during the time it was actively campaigning in Respondent's plant. In its
letter to employees of February 15, 1962, Respondent, after referring to benefits
granted to its employees, stated:
Compare this way with the typical method of the Outsiders which imposes on
a shop a rigid system of classifications into which each employee must be forced
so that as time passes a person cannot go outside of his class and the company
cannot reward an individual for his interest, cooperativeness and improvement
in his work.
General Counsel contends that these benefits were conferred in order to "dissipate
union activity." In view of the timing of the announcement of these benefits dur-
ing the height of the union campaign, a fact known to Respondent, and the unfavor-
able references to the Union in'the letter of February 15, General Counsel' s posi-
tion would appear to be well taken. Respondent argues, however, that the benefits
were granted not for an illegal purpose but "to be competitive" in the local labor
market. Respondent's secretary-treasurer, Samuel Keith, who was one of two
corporate officials who consulted and made the decisions to grant these benefits, testi-
fied that the wage increases were granted to be competitive. He further testified
that Respondent's wages were "much less" than those of other manufacturing con-
cerns in the area. Yet Keith in effect admitted on cross-examination that Respond-
ent's wages were in the upper third in the area. Furthermore, Keith would not recall
any wage Hates paid in the area that were significantly more than the Respondent's
wages. Moreover, Keith admitted that the Union was discussed in these conversa-
tions wherein the decision to confer these benefits was made. Under all the circum-
stances, I do not find Respondent's explanation for granting these benefits to be valid,
and do find that these benefits were granted in order to discourage the union activity
of the employees. Accordingly, I find that Respondent did thereby violate Section
8 (a) ( 1 ) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities found to be unfair labor practices in section III, above,
occurring 'in connection with the operations of Respondent described in section I,
above, have a close, intimate, and substantial relation to trade , traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
26Cf. Walton Manufacturing Company, supra; Stoddard -Quirk Manufacturing Co., 138
NLRB 615.
ar General ' Counsel 's Exhibit No. 4 (a).
29 General, Counsel 's Exhibits Nos. 3 ( a), (b), and (c).
ATKINS SAW DIVISION, BORG-WARNER'CORPORATION 957
V THE REMEDY
In view of my finding that Respondent has interfered with, restrained , and coerced
employees in the exercise of their rights under the Act, I shall recommend that it
cease and desist therefrom and post an appropriate notice
Upon the basis of the foregoing findings of fact and upon the entire record in these
cases, I make the following
CONCLUSIONS OF LAW
I Respondent is an employer engaged in commerce within the meaning of Section
2(6)and ( 7)oftheAct , t
2 The Union is a labor organization within the meaning of the Act
3 By interfering with , restraining, and coercing,its employees in itheiexercise of
the rights guaranteed in Section 7 of the Act,ithe Respondent has,engaged in and is
engaging in unfair labor practices within the -meaning of Section 8(a) (•1) of the Act
4 The aforesaid unfair labor practices are unfair labor , practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act
5 Respondent has not violated the Act as alleged in paragraph 11 of the con-
solidated complaint
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, the entire
record, and pursuant to Section 10(c) of the Act, it is recommended, that Respond-
ent, Atkins Saw Division, Borg-Warner Coiporation , its officers , agents, successors,
and assigns,
1 Cease and desist from
(a) Interrogating any of its employees concerning their union activities in a manner
constituting interference , restraint , and coercion in violation of Section 8(a) (1) of
the Act
(b) Threatening its employees with more stringent working conditions , loss of em-
ployment , and closing the plant if the Union becomes the collective -bargaining
representative of its employees
(c) Instructing its employees to remove their names from the Union 's organizing
committee
(d) Promulgating or maintaining rules prohibiting its employees during non-
working time from soliciting union membership or prohibiting its employees from
distributing handbills or other literature in behalf of any labor organization in non-
working areas on company property
(e) Threatening its white employees with replacement by Negroes or with changed
working conditions involving enforced association with Negroes if the Union be-
comes the collective-bargaining representative of its employees
(f) Promising or granting wage increases , additional holidays, or gifts to its em-
ployees in order to discourage membership in or activities, on behalf of United
Steelworkers of America , AFL-CIO, or any other labor organization
(g) In any like or related manner, interfering with, restraining , or coercing its
employees in the exercise of their rights guaranteed in Section 7 of the Act
2 Take the following affirmative action which is necessary to effectuate the
policies of the Act
(a) Post in conspicuous places at its Greenville , Mississippi , plant, including all
places where notices to employees customarily are posted , copies of the attached
notice marked "Appendix " 29 Copies of said notice to be fui wished by the Regional
Director for Region 26, shall , after being duly signed by the Respondent 's representa-
tive be posted by it immediately upon receipt thereof, and maintained by it for at
least 60 consecutive days thereafter Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered , defaced, or covered by any other
material
(b) Notify said Regional Director, in writing , within 20 days from the receipt
of this Trial Examiner 's Decision , what steps the Respondent has taken to comply
herewith 30
"I If this Recommended Order should be idopted by the Board, the s,ords "As ordered
bv" shrill be substituted for "As recommended by 9 Trial Ex iminer of' in the notice In
the further event thit the Board's Order is enforced by a United Stites Court of Appeals
the cords "Pursuant to i Decree of the United Stites Court of Appeals, Enforcing an
Order of" shill be substituted for "As ordered bv"
311n the event that his Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify said Regional Director in writing within 10 dais from
the date of this Order , what steps the Respondent has taken to comply herewith "
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further recommend the dismissal of paragraph 11 of the consolidated complaint.
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board,
we are posting this notice to inform our employees of the rights guaranteed them by
the National Labor Relations Act:
WE WILL NOT interrogate any of our employees concerning their union ac-
tivities in a manner constituting interference , restraint , or coercion in violation
of Section 8 (a)( 1 ) of the Act.
WE WILL NOT threaten our employees with more stringent working conditions,
loss of employment, and closing the plant if the Union becomes the collective-
bargaining representative of our employees.
WE WILL NOT instruct our employees to remove their names from the union's
organizing committee.
WE WILL NOT promulgate or maintain rules prohibiting our employees during
nonworking time from soliciting union membership or prohibiting our employees
from distributing handbills or other literature in behalf of any labor organiza-
tion in nonworking areas of our property.
WE WILL NOT threaten our white employees with replacement by Negroes, or
with changed working conditions involving enforced association with Negroes
if the Union becomes the collective-bargaining representative of our employees.
WE WILL NOT promise or grant wage increases, additional holidays, or gifts
to our employees in order to discourage membership in or activities on behalf
of United Steelworkers of America, AFL-CIO, or any other labor organization.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice or not to engage in
any union activities.
All our employees are free to become or remain members of United Steelworkers
of America, AFL-CIO, or any other union and they are also free to refrain from
joining any union.
ATKINS SAW DIVISION, BORG-WARNER CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and it must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 746 Fed-
eral Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No.
534-3161, if they have any questions concerning this notice or compliance with its
provisions.
Schapiro & Whitehouse , Inc. and Warehouse , Retail and Mail
Order Employees , Local Union No. 590, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America. Case No. 5-CA-p2753. September 11, 1964
DECISION AND ORDER
On June 3, 1964, Trial Examiner Joseph I. Nachman issued his De-
cision in the above-entitled proceeding finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
the Respondent filed exceptions to the Decision and a supporting brief.
148 NLRB No. 102.