Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Nov 23, 1965

155 N.L.R.B. 1087 (N.L.R.B. 1965)

NORGE DIVISION, BORG-WARNER CORPORATION 1087
further, that the employees sought by the Petitioner do not constitute
a separate appropriate unit. We shall, accordingly, dismiss the
petition .2
[The Board dismissed the petition.]
' Humble Oil & Refining Company , 153 NLRB 1361 ; Pacific Intermountain Express
Company, 145 NLRB 805, 808-809 ; Granite City Steel Company, 137 NLRB 209; Brook-
lyn Union Gas Company, 129 NLRB 361.
In view of this disposition , we find it unnecessary to consider other grounds on which
the Employer and the Intervenor urged that the petition be dismissed.
Norge Division , Borg-Warner Corporation and Local 370, Allied
Industrial Workers of America, affiliated with International
Union, Allied Industrial Workers of America, AFL-CIO. Case
No. 26-CA-1852. November 23,1965
DECISION AND ORDER
On February 16, 1965, Trial Examiner Eugene F. Frey issued his
Decision 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 Trial Examiner's Deci-
sion. Thereafter, the General Counsel and Respondent filed exceptions
to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and it finds merit in the exceptions of the Respondent.
Accordingly, the Board adopts the findings of the Trial Examiner
only to the extent consistent herewith.
The only issue is whether the Respondent discharged two probation-
ary employees, Ruby Shepherd and Clara Stayers, in violation of
Section 8(a) (1) of the Act. The Trial Examiner found that it did.
For reasons stated below, we disagree.
The facts essential to decision maybe briefly set forth. The Respond-
ent's collective-bargaining agreement with the Charging Union pro-
vides for a 50-working clay probationary period during which new
155 NLRB No. 95.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees have no seniority rights and may be discharged at the sole
discretion of management. During the probationary period, manage-
ment constantly observes and "screens" employees, in part on the basis
of their attitude toward management and their willingness to accept
and obey management decisions.
Shepherd and Stayers, close friends, who, as the Trial Examiner
found, have a "penchant" for doing things together, were hired at the
same time, and were both assigned to work in the same department
under Foreman Brown. At the time of their hire, Em_ loz nlent
Manager Stanley explained to them the probationary conditions of
their emlploy-ment. They were both terminated on May 28. 1954, after
they had each completed approximately 45 days of their 50-day pro-
bationary period.
At the time of their termination, Shepherd and Stayers were on
layoff status, having been laid off along with a- number of other employ-
ees for lac of work on May 26. During the period of their emp loy-
ment, they had also been laid off, likewise. for lack of work, on some
three or four earlier occasions. On at least-one of the earlier occasions,
they had bitterly complained to both Foreman Brown and Employ-
ment 71- Tanager. Stanley that BrcV,: n had deviated from seniority prin-
ciples in choosing them for layoff. Brown and Stanley explained
to them that seniority had no application to probationary employees,
but tb_ez continued to charge Brown with unfairness in having
Ytheir asserted seniority claiignored ms.
When Shepherd and Stayers were laid off on May 26, they again
Co lplained the they were being laid off out- of seniori As on the
earlier occasion, they lodged thole complaint directly and not through
grievance channels established by contract. Although Brown once
more explained that seniority did not -apply in the layoff of probation-
ers, they refused to accept his explanation. angrily repeated their
earlier accusation that he was treating them unfairly, and insisted
upon Being their employment records to co712pare their seniority
standing with that of another employee who had not been laid off.
They again sought oat Stanley to voice to him their complaint against
Brown, and, as the Trial Examiner found, "persisted in expressing
[their] personal displeasure against their foreman in angry- and plain
terms" and in a manner that gave Stanley "good reason to believe that
the two girls 1-, ad soil e personal resentment toward Brown."
After their layoff on May 26, Shepherd and Starers were not
recalled to work, but, as noted above, were terminated 2 days later.
Their termination was effected by Stanley. As to the motivation for
that action, the Trial Examiner, on the basis of testimony- he found
credible, made the following findings of fact:
After considering the. girls' repeated complaints, their apparent
personal resentment toward Brown (who was considered the most
NORGE DIVISION, BORG-WARNER CORPORATION 1089
lenient of the foremen and easiest to work with), and Brown's
report of their last complaint, Stanley concluded that neither
girl would be a good employee, and mould be unlikely to get along
with any foreman or management if they could not get along
with Brown during their probationary period, and on May 28 he
terminated them on his own decision, without consultation with
or recommendation from Brown, for those reason-s. [Emphasis
supplied.]
Also relying on Stanley's credited testimony, the Trial Examiner
further found as follows :
In his long experience in personnel work, Stanley had received
numerous s milar complaints from probationary employees, but
had never found it necessary to take. disciplinary or termination
action before because the other complainants had accepted the
explanation without resentment toward their foreman. The con-
trary attitude of Shepherd and Stayers strongly indicated to
Stanley that they would probably not be tractable employees,
or inclined to accept management authority.
Although thus accepting as true the Respondent' s explanation for
its termination of Shepherd and Stayers, the Trial Examiner. never-
theless concluded that their discharge was violative of Section 8 (a) (=) .
For purposes of decision here, we assume arguendo, although we
find it unnecessary to decide, that Shepherd's and Stayers' simultane-
ous presentation of grievances personal to them, although undertaken
outside the contract grieTance procedures, constituted "concerted activ-
ity" for "mutual aid and protection" within the contemplation of
Section 7 of the. Act. But even on that assumption, we are unable to
concur in the Trial Examiner's conclusion that the two employees
were unlawfully- terminated. The crucial question, as we see it, is not
whether the employees engaged in what we might assess as "plain.
and flagrant iris:conduct," but what in truth impelled the discharges.
IV, ere the employees terminated because they engaged in concerted
activity? Or were they terminated for some other and legitimate
reason that would have impelled the. Respondent to take such action
even inde-pendently of their concerted activity? On the particular
facts of this case, -we are persuaded that the latter alone formed the
motivating basis for the terminations.
To begin with, there is nothing in this record to suggest that the
Respondent resented the fact that Shepherd and Stayers had acted
together in presenting these complaints; indeed, such e -ndence as
there is. would appear to point in an opposite direction.'- Nor is there
I Thus, the record reflects that when the two had jointly complained of their layoff on
an earlier occasion, the Respondent had specially arranged to transfer them both tem-
porarily to another section so that neither would be laid off.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anything in the. record to show that the Respondent had a. purpose to
frustrate the presentation of complaints by other probationary
employees. On the contrary, it affirmatively appears that between 35
and 50 other probationary employees had in the past 3 years made
inquiries to Stanley concerning layoffs without any effort having
been made by management to discourage such conduct. In short., there
is here a complete. absence of independent evidence on which to rest
an inference that the Respondent acted either out of hostility toward
or in reprisal for the concerted activity in which the employees
engaged.
Further, the Trial Examiner's affirmative findings opposed any
such possible inference As rioted above, the Trial Examiner specifi-
cally found that. the Respondent was led to discharge Shepherd and
Starers as their probationary period neared its end only- .because
It concluded that their overall attitude was undersirable, reflecting
as it did both a disposition toward intractability in their relations with
supervision and an unwillingness to accept managerial authority even
as to matters. expressly reserved by contract for exclusive man.age-
i ent discretion. These findings- are bottomed in large measure on the
Trial Examiner's determination of credibility, and, although we note
the General Counsel's exceptions thereto, we find no adequate. basis
in this record to disturb them. (Standard Dry Wall Products, Inc..
91 NLRB 544.) As Respondent acted in accord with its regular
practice of screening employees during their probationary period to
determine whether they will make good employees, in part on the
basis of their attitude toward management and their willingness to
accept and obey management decisions, and as the Respondent in
thus assessing the suitability of Shepherd and Stayers for continued
employment. did not deviate from the standards it normally applies.
there appears no firm support for a finding that Respondent's- action
was impelled by other than legitimate. and normal considerations.
In addition we also take into account that the. contract's probation-
ary provisions are intended to serve a valid business purpose in allow-
ing management to weed out potentially undersirable employees before
its liberty of action becomes curbed by contract restrictions. Bearing
all. these things in mind, we are not prepared to say that Respondent
violated that Act by terminating the probationers in the circumstances
of this case.
Concluding as we do that the Respondent did not violate Section
8(a) (1) as alleged, we shall accordingly dismiss the complaint in
its entirety.
[The Board dismissed the complaint.]
NORGE DIVISION, BORG-WARNER CORPORATION 1091.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The issues in this case are whether or not Norge Division, Borg-Warner Corpora-
tion, herein called the Respondent , discharged two employees and refused to reinstate-
them because they had engaged in concerted activities for mutual aid and protection,.
in violation of Section 8(a)(1) of the National Labor Relations Act, as amended,.
29 U.S.C. Sec. 151, et seq. herein called the Act. The issue arises on a complaint
issued by the General Counsel of the Board on August 10, 1964, through the Board's.
Regional Director for Region 26,1 and the answer of Respondent admitting juris-
diction and the discharge of said employees , but denying the commission of any
unfair labor practice. On due notice, a hearing on the issue was held before Trial
Examiner Eugene F. Frey at Fort Smith, Arkansas, on September 23, 1964, in which
General Counsel and Respondent participated fully through counsel . At the close
of the testimony, counsel for General Counsel presented oral argument, and Respond-
ent has filed a written brief, all of which has been carefully considered by me in.
preparing this Decision.
Upon the entire record in the case, and from my observation of witnesses on the-
stand, I make the following:
FINDINGS OF FACT
I. THE COMMERCE OF FACTS
Respondent is an Illinois corporation with a plant located in Fort Smith, Arkansas,.
where it make refrigerators , freezers , and room air-conditioners . In the 12 months.
preceding issuance of the complaint, Respondent made, sold, and shipped from said
plant directly to points outside the State materials and supplies valued in excess of
$50,000. Respondent admits, and I find, that it is an employer engaged in commerce-
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union named in the caption herein is a labor organization within the meaning,
of Section 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background of the discharges
The parties stipulated that: The Union has been the certified statutory bargaining.
representative of employees at the Fort Smith plant since October 1962, in which
period it has had collective-bargaining contracts with Respondent covering said
employees . After a short strike with picketing in May 1964, Respondent and the.
Union executed another contract which provides, in pertinent part (like previous
contracts), that new employees and former employees who had lost seniority under
another clause will be on probation for the first 50 days of work, during which period
they will have no seniority rights, and may be terminated at the sole discretion of
Respondent, and if they are retained in its employ after completion of the probation-
ary period, their seniority will date from the last date of hire.
B. The discharges
Rudy L. Shepherd and her friend, Clara F. Stayers, were hired together by Respond-
ent at the Fort Smith plant on February 26, 1964. At hiring, Employment Manager-
Walter D. Stanley told them, among other things, about the probationary period:
during which they could be discharged at will, and the benefits they would secure
after that period was completed. Both were assigned to work in the tubing depart-
ment under Foreman Joe N. Brown. Prior to this employment, they had been close
friends for about a year, during which they had worked together for 4 months in
another local business place. While employed by Respondent they rode to work-
together and worked side by side. During their employment of approximately 45
working days apiece, they were laid off together by Brown three or four times. The
1 The complaint Issued after Board Investigation of charges filed by Local 370, Allied,
Industrial Workers of America, affiliated with International Union, Allied Industrial
Workers of America, herein called the Union, on June 24 and July 31„ 1904..
212-809-66-vol. 15 5-7 0
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
last layoff occurred at the close of the workday on May 26, at which time they asked
him the reason for it. Brown said it was lack of work. They asked why he always
chose them for layoff, and he replied that during their probationary period he could
lay off whomever he desired, and he chose them. They told him that they intended to
see Employment Manager Stanley to check the records to see how many days of
work "we had in," saying they knew another woman (Betty Lewis) had been hired
2 weeks after them, but Brown never laid her off. Shepherd asked Brown if Lewis
had completed her probationary period, and Brown said he thought she had. Shep-
herd said that if she had, then Shepherd had, too, because Lewis had been hired
later. Both women then visited Stanley the same day and asked how many days
they had worked. He checked their records, and said Shepherd had 41 and
Stayers 45. They asked why the figures differed, because they always came to work
in Shepherd's car and worked the same recurs and days. Stanley said he did not
know, but that was what the records showed. They then asked him why Brown had
always chosen them for layoff over an employee who had been hired later, saying
they could not understand it because in their last place of employment the last persons
hired were laid off first. Stanley replied that they were both in their probationary
period, and Brown could lay off any probationary employee he wanted regardless
of seniority. Stanley told them not to say anything to Brown about it because
Brown could discharge them during the probationary period. Stanley himself
terminated them on May 28.
Or. 'une 5, both women came to the personnel office to pick up their paychecks,
and were told by a clerk that they were discharged and would not be called back.
They asked why, and she did not know. About a month later, they returned to the
plant with Robert Johnson, president of the Union, who asked Director of Industrial
Relations Harold Sharpe to explain why they were fired, as they had accused the
Union of having some part in their termination because they had done some picket-
ing during the strike earlier in May. Sharpe replied that they had not been terminated
because of their strike activities or because of their work. He told Johnson it was
not customary to give probationary employees any reasons for termination, but since
Johnson had requested it, he told them they were terminated and would not be recalled
because they had asked too many questions and "lipped off too much" about their
foreman when they talked to Stanley, and because of their "attitude toward their
foreman, and their conduct and language ." Neither worker has been recalled by
Respondent.
C. Contentions of parties, and concluding findings
General Counsel contends that both employees were engaged in protected con-
certed activity when they jointly complained to their foreman and Stanley about the
policy of laying off employees without regard to seniority, and that they were in
effect presenting a grievance on behalf of other employees. I cannot agree that they
were in fact speaking for other employees, for the record does not show that other
employees had raised the same complaint in talking to them about this subject, or
either directly or indirectly suggested or asked Shepherd and Stayers to take this
complaint up with management. The record shows .that they were talking only
about the failure of management to apply seniority in laying them off on three or
four occasions. In their complaints they did ask whether seniority applied on lay-
offs, as had been done in their prior employment, but it is clear that they were
questioning Respondent's general policy in use of seniority on layoff, only as it
applied to themselves .2 v
Respondent's defense is that both, employees were acting individually, each present-
ing her individual grievance to management, and in the presentation each had been
very critical of Brown on two occasions when making the same complaint to him,
and in their last talk with Stanley each had bluntly and angrily accused Brown of
being unfair to her, in such tones and manner as to indicate to Stanley that each
had been disrespectful to Brown and defiant of his authority, and would probably
continue to display that attitude, and on the basis of this "negative" attitude toward
the supervisor, management decided to terminate them. In support of this defense,
the record shows 3 that: At least once before May 26, the two employees had
2 These facts distinguish Metal Blast. Inc., 139 NLRB 540. cited by Generai Counsel, for
the complaint there was by a shop steward who made a general reeuest on behalf of all
empl_oyeess for application of seniority on layoff. Here. it is significant that neither the
Union nor its shop steward processed the complaint in any way for the two employees.
z I credit testimony of Brown, Stanley, and Sharpe, as corroborated in part by admis-
sions of Shepherd and Stayers. Testimony of the latter in conflict therewith is not
credited.
NORGE DIVISION-, BORG-WARNER CORPORATION 1093
jointly complained to Brown that he did not follow seniority in choosing them first
for layoff (although other employees were laid off at the same time .) He explained
to them that he was not required to follow seniority on layoff of probationers. They
replied that he was unfair in choosing them first every time, and that they would
ask Stanley if this was proper. When they made the same complaint and accusation
to Stanley, he gave them the same answer as Brown had, but they still insisted that
it was not right for Brown to lay them off regardless of seniority, and to retain girls
hired after them. When Brown again laid them off first in a group laid off for
economic reasons on May 26, they again angrily accused Brown of unfair treat-
ment, and he gave the same answer. They asked him if they could work at another
job, and he replied that he could not find one .4 Apparently not satisfied with this
answer, they again said they would talk to Stanley. On this occasion, both raised
their voices in arguing with Brown. This attracted theattention of the shop steward
who asked Brown ( after they left) what it was all about. When Brown explained
their complaint, the steward replied that they could do nothing about it, as they were
probationers. Having twice been accused by them of unfairness, Brown this time
reported the incident to Stanley, describing their manner of speech. The same day
the girls sought out Stanley and, upset and angry, made the same complaint about
Brown. Stanley gave them the same explanation as before, and also advised them
not to continue this kind of talk because the foreman might want to terminate them
during their trial period. They apparently left Stanley still not satisfied. -
After considering the girls ' repeated complaints, their apparent personal resent-
ment toward Brown (who was considered the most lenient of the foremen and
easiest to work with), and Brown's report of their last complaint, Stanley concluded
that neither girl would be a good employee, and would be unlikely to get along with
any foreman or management if they could not get along with Brown during their
probation period,5 and on May 28 he terminated them on his own decision , without
consultation with or recommendation from Brown, for those reasons.
There is no evidence or claim that Respondent has any union animus, or acted
from ar tiu -on _ ,otives, in terminating these employees. It is clear from the record
that their layoff was for purely economic reasons. If each had presented her griev-
ance separately, and engaged in the above conduct individually, there is no question
that Respondent would have had the right to terminate either during her probationary
period for good reason, bad reason, or none at all. However, it is well settled that
where two or more employees make or present a grievance to management jointly,
whether the grievance is :=-ell founded or not, they are engaged in concerted activity
which is protected under the Act, even though the Union with whom Respondent had
a current contract did not process the grievance as their agent or enter into the dispute
in any way.6 Here, there is no question that Shepherd and Stayers acted in concert
in twice presenting joint complaints to management about similar treatment accorded
both at the same time on at least two occasions. in talking to both supervisors,
both employees spoke in terms which indicated that they were arguing for the benefit
of each other, as well as for each individually, about a common action taken against
them at the same time. Neither tried to explain or argue her grievance as a problem
separate and apart from that of her fellow employee. Further, Respondent through-
4 On an earlier layoff. Brown had been ready to lay-off only one of them, but when both
asked him to arrange to keep both at work because they always rode to work together in
the car of one, he arranged through Stanley to have them transferred together to another
department.
5 in his long experience in personnel work. Stanley had received numerous similar com-
plaints from probationary employees, but had never found it necessary to take disciplinary
or termination action before because the other complainants had accepted the explanation
without resentment toward their foremen. The contrary attitude of Shepherd and Stayers
strongly indicated to Stanley that they would probably not be tractable employees, or
inclined to accept management authority. During the probationary period, management
constantly observes and "screens" workers, in part on the basis of their attitude toward
other workers and management and willingness to accept and obey management decisions.
This, of course. was consistent with the clause in the union contract , which recognized
the employer's unlimited right of termination during the probation period.
6 Smith Victory Corporatiose, 90 _NLRB 2089. enfd. 190 F. 2d 56 (C.3. 2) ;'Walls Manu-
facturi ng Company, Inc.. 137 NLRB 1317. 1319: The Ohio Oil Company . 92 NLRB 1597,
1598: and see Pyder Tank Lines, Inc., 133 NLRB 936. where the. Board held that mere
concerted discussion about low wages and other common problems was protected activity,
ever. though the two workers engaged in the discussion had not tried to present a grievance
on it.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out heard and handled their grievance as a common or joint problem, both in Brown's
and Stanley's explanations to both at the same time on two occasions, and in Stanley's
consideration of their joint conduct and joint termination for that conduct. In
addition, Brown had in the. past at least once transferred them together, at their
request, to other work instead of laying them off; and of course, Respondent knew
that they came to work together and worked side by side in the plant. Hence, their
established pattern of doing things together was not new to Respondent, and I am
convinced that it was for this reason that Brown and Stanley handled and acted
on their complaints as a joint or common problem.? The crucial question is, whether
during their protected presentation of a legitimate (though unfounded) grievance,
these employees engaged in conduct which deprived them of the protection of the
Act. It is well settled that employees engaged in union or concerted activity lose the
protection of the Act when they engage in misconduct.8 Respondent argues that, after
the two had been clearly apprised on the first occasion that they were probationary
employees, not entitled to the benefit of rules applying to permanent employees,
their remarks on the second occasion, in which they in blunt terms vented their
personal displeasure and resentment toward Brown both directly and in their dis-
cussion with Stanley, after being told for the second time of their limited rights as
probationers, amounted to mere personal "griping" about their foreman which is
not entitled to protection under the Act, that the mere fact that each expressed this
personal opinion about the foreman simultaneously with the other does not render
such conduct concerted or protected, and that if their individual acts are held to be
protected "an employee could harass management endlessly with personal com-
plaints by always taking a cocomplainer with him in order to insure immunity from
disciplinary action." I have held that Shepherd and Stayers acted in concert in
presenting their joint and several grievances. In view of their penchant for doing
many things together, I am satisfied that they acted jointly on this occasion for that
reason, and not with the idea of cloaking their "griping" with a form of protected
concerted activity. However, it is also clear that, after they were told for the second
time of the legitimacy of their choice for layoff, they still were not satisfied, but
persisted in expressing personal displeasure against their foreman in angry and plain
terms, and I-am convinced that this stemmed from some secret personal displeasure
with -Browns However, this was not stated in specific terms to Brown or Stanley,
so that there is nothing in their remarks from which Stanley could reasonably con-
clude that they were making a malicious or vindictive attack on Brown. In all the
circumstances, I feel that while Stanley had good reason to believe that the two girls:
had some personal resentment toward Brown, as it was hard to convince them of
the propriety of Brown's action toward them, their overall conduct and attitude still
falls short of that type of plain and flagrant misconduct which would justify their
termination notwithstanding their concerted activity. There is no substantial proof
that their talks with Brown were accompanied by boisterous or abusive conduct
which can be classed as insubordination or open defiance of his authority; nor can
thatbe said of their rather angry inquiries and remarks to Stanley. They caused no
disturbance among other employees or disruption of plant operation in talking with
Brown or Stanley. Hence, their conduct is not enough to warrent my classifying
them as continual "troublemakers" of the type whose discharge for insubordinate
conduct during concerted activities has been approved by the Board and courts 10
Hence, considering only the manner in which Shepherd and Stayers presented their
grievances on two occasions, I must conclude that their attitude and conduct did not
forfeit their right of protection under the Act. - -
Respondent also argues, in effect, that the contract clause recognizing its right
to terminate probationary employees at will is an important factor which requires
denial of relief in this case. While admitting that the Union could not contract
away the rights of Shepherd and Stayers to statutory protection of their concerted
activity, Respondent contends that the union contract provided a means, fairly
Their well-known and continual penchant for doing things together certainly tended to
emphasize their duality in the plant, rather than obscure it. as Respondent contends.
s-Yationel Shirt Shops of Delaware, Inc.. et al., 123 NLRB 1213, 1223; Republic Cotton
Mills (Division of J. P. Stevens Company, Inc.). 101 NLRB 1473.
9 Shepherd, in particular, intimated in her testimony that Betty Lewis, the married
woman whom Brown had retained in preference to her and Shepherd. was a "favorite" of
Brown, a married man, thus hinting at some improper relationship. There is no proof of
this, of course, but the mere hint shows _ a form of vindictiveness in Shepherd's attitude.
10 See Republic Cotton 1(1-Its, supra ; Joanna Cotton Mills Co. v. Y.L.R.B., 176 F. 2d
749 (C.A. 4).
NORGE DIVISIO N , BORG-WARNER CORPORATION 1095
'negotiated between management and the Union for resolving grievances of this type,
and that "union-like" activity of the type involved here should- not be afforded the
protection of the Act, because settlement and surrender to these claims would have
involved granting of seniority rights to a class of temporary employees , thus allowing
them to dictate their terms and conditions of employment , in violation of the union
agreement . I note that neither employee apparently sought advice from the Union
or its shop steward, or tried to avail themselves of the contract grievance procedure,
before making their complaints to Brown and Stanley; and after their discharge the
Union did no more than procure for them from Sharpe a statement of the reasons for
their final discharge , and then file the charges herein. it is inferable from the steward's
remarks to Brown that the Union felt they had no ground for complaint in view of
the contract clause noted above. Neither the steward nor any other union member
testified in support of their story. However, the Union's lack of action is not signifi-
cant, in view of the fact that Section 9(a) of the Act, which recognizes the right of a
union majority status to represent all employees for collective bargaining, also
recognizes and protects action of individual employees or groups of employees by
its proviso which states:
. Provided, That any individual employee or a group of employees shall
have the right at any time to present grievances to their employer and to have
such grievances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a collective-
bargaining contract or agreeemnt then in effect : Provided further, That the
bargaining representative has been given opportunity to be present at such
adjustment.
Although the Union made no attempt to present the grievances for Shepherd and
Stayers, Respondent presents no proof or argument showing that its reception and
decision on their joint grievances was in any way inconsistent with the terms of the
union contract ; in fact, management 's answers to their complaint was consistent with
-and clearly based on the management prerogative clause cited above , as it pertained
to probationary employees. Hence , I conclude this argument is without merit.ll
On all the facts and circumstances , I conclude that Respondent has not sustained
the burden of adducing evidence adequate to rebut the prima facie case made by
General Counsel, and that by its termination of Shepherd . and Stayers on May 28
because of their presentation of a joint grievance to management , Respondent inter-
fered with, restrained, and coerced employees in the exercise of their- rights to engage
in concerted activities for the purpose of mutual aid and protection, which is guaran-
teed to them by Section 7 of the Act, and is recognized and protected by the proviso
in Section 9(a) of the Act, and that Respondent thereby violated Section 8 (a) (1) of
the Act.t2 -
IV. THE EFFECT OF THE UNFAIR LAnOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce. -
V. THE REMEDY
Having found that Respondent discharged Ruby L. Shepherd and Clara F. Stayers
because of their concerted activities, I will recommend that Respondent offer there
immediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their former rights and privileges, if any, and ma= _e them whole
for any loss of pay suffered because of the discrimination against them, by payment to
each of a sum of money equal to that which she normally would have been paid in
"In reaching this conclusion , I have carefully considered Mushroom Transp ortation
Company, Inc., v. N.L.P.B., 330 F. 2d 683 (C.A. 3), on which Respondent relies, and con-
clude that it is inapposite on the facts, because here the joint action of the two employees
went beyond mere "griping" among themselves , but involved a joint presentation of their
grievance to management, the very type of joint action dehors . flee Union which is recog-
nized and protected by Section 9(a). See also Top Notch Manufactu ring Company, Inc.,
145 NLRB 429 (IR). -
' In reaching this conclusion . I have carefully considered other authorities cited by
Respondent , and find some inapposite on the fac ts, while others state principles not incon-
sistent with the views and conclusions I have reached herein.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's employ from the date of the discharge to the date of Respondent's offer
of reinstatement, less net earnings, if any, during said period, the amount to be com-
puted in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289, to which should be added interest at the rate of 6 percent per annum as
prescribed in Isis Plumbing & Heating Co., 138 NLRB 7 _6. 1 s=ail also reecom-:end
that Respondent be ordered to preserve and, upon request. make available o the
Board or its agents, for examination and copying, all pertinent books and records
which nay be necessary to analyze and compute t e amounts of backpay due and the
right to reinstatement under these circumstances.
Since the unfair labor practice found involved an encroachment on fundamental
rights guaranteed to employees by the Act, I shall recommend issuance of a broad
cease-and-desist order.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
- - - - - CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act, and Respondent is an employer engaged in commerce w'ithi:i the meaning of
Section 2(2), (6), and (7) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Ruby L.
Shepherd and Clara F. Stayers because of their concerted activities, Respondent has
interfered with, restrained, and coerced its employees in the exercise of rights guaran-
teed to them in Section 7 of the Act, and specifically recognized and protected by
Section 9( a) of the Act, and thereby has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and 2(6) and
(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and pur-
suant to Section 1 0(c) of the National Labor Relations Act, as amended , it is recom-
mended that Respondent, Norge Division, Borg-Warner Corporation , Fort Smith,
Arkansas , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Terminating probationary employees , and refusing to recall or reinstate them,
because they engaged in concerted activities for the purposes of mutual aid or
protection.
(b) In any other manner interfering with, restraining , or coercing probationary or
other employees in the exercise of any of the rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act :
(a) Offer Ruby L. Shepherd and Clara F. Stayers immediate and ful l reinstatement
to the positions they held at the time of discharge , or an equivalent position , without
prejudice to rights and privileges , if any, previously enjoyed . and make each whole for
any loss of pay she may have suffered as a result of the discrimination against her, in
the manner set forth above in the section hereof entit?ed "The Remedy."
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying, all nayroll records, social security -)w.-- merit records, time-
cards , personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(c) Post at its plant in Fort Smith, Arkansas . copies of the attached notice marked
"Appendix ." 13 Copies of said notice , to be furnished by the Regional Director for
Region 26, shall , after being duly signed by a representative of Respondent , be posted
by Respondent immediately upon receipt thereof , and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken to insure that
such notices are not altered , defaced, or covered by any other material.
(d) Notify the Regional Director for Region 26, in :writing , witinn 20 days from
the date of the receipt of this Decision, what steps Respondent has taken to comply
herewith.14
11 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order"
shat be substituted for the words "a Decision and Order."
Ii If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in 'writing, within 10 days from the-date of this
Order, what steps Respondent has taken to comply herewith."
ILLINOIS .POWER COMPANY -
APPENDIX
1097
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT terminate probationary employees, and refuse to recall or rein-
state them, because they engage in concerted activities for the purpose of miatual
aid or protection.
WE WILL NOT in any other manner interfere with, restrain, or coerce proba-
tionary or other employees in the exercise of any of the rights guaranteed to them
by Section 7 of the Act.
WE WILL offer to Ruby L. Shepherd and Clara F. Stayers immediate and full
reinstatement to the positions they held at the time of discharge, or an equivalent
position, without prejudice to rights and privileges, if any, previously enjoyed,
and will make them whole for any loss of pay suffered by them because of our
discrimination against them.
All of our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization, and are also free to engage in con-
certed activities, whether or not they are members of any labor organization, to the
extent recognized, permitted, and protected by the proviso to Section 9(a) of the Act.
NORGE DIVISION, BORG-WARNER CORPORAATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No.
534-3161, if they have any question concerning this notice or compliance with its
provisions.
Illinois Power Company and Local No. 51, International Brother-
hood of Electrical Workers, AFL-CIO. Case No. 14.-CA-328!.
November 23,196,55
DECISION AND ORDER
On October 28, 1964, Trial Examiner Eugene E. Dixon issued his
Decision in the above-entitled proceeding , finding that Respondent
had not engaged in unfair labor practices as alleged in the complaint
and recommending that the complaint be dismissed in its entirety,
as set forth in the attached Trial Exam iner's Decision . Thereafter,
the General Counsel and the Charging Part= filed exceptions to the
Decision -with supporting briefs , and Respondent filled an answering
brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Trial
Examiner's Decision , the exceptions and briefs , and the entire record
in this case, and hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner for the reasons noted hereafter.
155 NLRB No. 101.