Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Aug 7, 1972

198 N.L.R.B. 726 (N.L.R.B. 1972)

726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Borg-Warner Controls , a Division of Borg-Warner
Corporation and United Automobile, Aerospace
and Agriculture Implement Workers of America,
UAW, Local 509. Case 21-CA-10072
August 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On December 30, 1971, Trial Examiner Richard D.
Taplitz issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a
supporting brief and the General Counsel filed cross-
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board I has considered the Trial
Examiner's Decision, the exceptions, the cross-excep-
tions, the briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, as consist-
ent herewith, for the reasons stated herein.
The Trial `Examiner concluded, inter alia, that
during the period between June 1970 and February
1971, Respondent violated Section 8(a)(5) of the Act
by negotiating with the Union with no intention of
entering into a final and binding collective-bargain-
ing agreement. The Respondent has excepted to this
conclusion, inter alia, by the Trial Examiner.
The basic issue here involves an allegation of
surface bargaining. The General Counsel contends
that Respondent's conduct during negotiations
shows that Respondent had no intention of reaching
an agreement with the Union. Respondent contends
that it was engaged in hard but lawful bargaining.
At the outset we note that no case involving an
i The Trial Examiner found that the principles of law controlling this
case are well summarized in Sweeney & Co, Inc., 176 NLRB 208 enfd. in
pertinent part 437 F 2d 1127 (C A. 5, 1971). We agree. In its exceptions,
Respondent asserts that Sweeney is clearly distinguishable on the facts. It is
true that there were independent violations of the Act to support the surface
bargaining finding in Sweeney and that the Trial Examiner did not find
independent violations here However, these factual differences do not
allegation of surface bargaining presents an easy
issue to decide. We fully recognize that such cases
present problems of great complexity and ordinarily,
as is the present case, are not solvable by pointing to
one or two instances during bargaining as proving an
allegation that one of the parties was not bargaining
in good faith. In fact, no two cases are alike and none
can be determinative precedent for another, as good
faith "can have meaning only in its application to the
particular facts of a particular case." N.L.R.B. v.
American National Insurance Co., 343 U.S. 395, 410.1
It is the total picture shown by the factual evidence
that either supports the complaint or falls short of the
quantum of affirmative proof required by law.
We have considered the following matters in
evaluating Respondent's totality of conduct during
the bargaining at issue herein. -
1. RESPONDENT'S PROPOSALS
As stipulated by the parties, Respondent's initial
set of proposals, which were submitted at the second
negotiation meeting, substantially represented the
existing terms and conditions of employment. In
particular, the parties agreed that the wage ranges
were the same. However, some of Respondent's
proposals represented less than the existing terms
and conditions of employment. Specifically, these
latter proposals, as described in the Trial Examiner's
Decision, related to vacation pay, holiday pay, merit
increases, rest periods, report pay, sick leave pay, and
the grievance procedure. Finally, the record shows
that Respondent's proposals involving certain areas
not covered prior to the certification of the Union
included a limited union-security provision; i.e., an
agency shop with a grandfather clause.
Subsequent written proposals submitted by the
Respondent during negotiations related almost en-
tirely to peripheral matters.2 On August 5 (at the
seventh meeting), Respondent submitted a proposal
on plant visitation by union representatives. On
October 8 (the 15th meeting), Respondent submitted
new proposals related to seniority lists, probationary
period, out of unit, promotions, supervisors, and
transfers (temporary and permanent), and restated
earlier proposals on plant visitation, checkoff, and
leadman. On October 22 (17th meeting), Respondent
submitted a revised proposal related to the grievance
procedure. On February 11 (19th meeting), Respon-
dent presented a revised proposal on leave of
change the applicable principles of law which are summarized in Sweeney
and other Board decisions.
2 These proposals were introduced at the hearing by General Counsel.
Respondent presented no additional evidence of any other written
proposals Respondent did present several verbal modifications during
negotiations which resulted in agreement between the parties relative to
minor matters.
198 NLRB No. 93
BORG-WARNER CONTROLS
absence. And finally, on February 18 (20th and final
meeting), Respondent presented a document repre-
senting the Respondent's understanding as to what
was agreed to and for those items not agreed to or
partially agreed to, the Respondent's proposals.
After 8 ,months and 20 negotiation meetings, the
agreements reached by the parties essentially repre-
sented obligations imposed by law,3 established
employment practices,4 and formalities of contract,
minor, matters, and definitions.5 The parties also
agreed to a no-strike and no-lockout clause. On the
other hand, the record shows that no agreement was
reached on any of the major economic issues;
namely„ wages, standby pay, callback pay, report
pay, shift premiums, vacations, Good Friday, sick
leave, group insurance, merit increases , pensions,
cost-of-living allowances, pay differentials for lead-
man, and wage progressions. Similarly, the record
shows that no agreement was reached on any of the
major noneconomic issues; namely, union-security
and union checkoff, investigation and, presentation
of grievances, subcontracting, and plant visitation by
union representatives.
The court's language in N.L.KB. v. Herman
Sausage Co., Inc., 275 F.2d 229 (C.A. 5), is particular-
ly applicable to the record presented in this case.
There the court said:
The obligation of the employer to bargain in
good faith does not require the yielding of
positions fairly maintained. It does not permit the
Board, under the guise of- finding of bad faith, to
require the employer to contract in a way' the
Board might deem proper. Nor may the Board
u directly or indirectly, compel concessions or
otherwise sit in judgment upon -the substantive
terms of collective bargaining agreements' ......
for the Act does not "regulate the substantive
terms governing wages, hours and working
conditions which are incorporated in an agree-
ment." [Citation omitted.]
On the other hand while the employer is
3 Recognition , purpose , overtime pay (partial), jury duty, obligation to
bargain, and discrimination
4 Probationary period, bulletin board, payday, hours, leave of absence,
leadman (partial agreement on definition , but no -agreement on pay
differential), and terminations (partial).
5 Parties, waiver , shop stewards, addresses , savings clause , and defini-
tions (partial).
6 Sweeney & Co, Inc., supra See also East Texas Steel Castings Company,
Inc., 154 NLRB 1080; and Fitzgerald Mills, Corporation, 133 NLRB 877,
enfd. 313 F 2d 260 (C.A. 2), cert. denied 375 U.S. 834.
7 The record (shows that the Union never asked Respondent for any
financial statements of profits or losses of Respondent's business, since
Respondent never stated that it could not afford a wage increase, just that it
would not grant a wage increase . The record also shows that, in an attempt
to move bargaining off its stalemated course, the Union asked Madden,
Respondent' s chief negotiator, at the February 18 meeting, whether
Respondent would consider a wage proposal if the Union would agree to
Respondent's other proposals . Madden said he would not . This union
proposal was repeated two more times later in the meeting and Madden
727
assured these, valuable rights, he may- not use
them as a cloak. In_ approaching it from this
vantage, onp must recognize as well that bad faith
is prohibited though done with sophistication and
finesse. Consequently, to sit at a bargaining table,
or to sit almost forever, or to make concessions
here and there, could be the very means by which
to conceal a purposeful strategy to make bargain-
ing futile or fail. [275 F.2d at 231.] -,
Thus, we do not find, nor do we suggest, that
Respondent's refusal' to make concessions with
regard to economic matters violates the Act. Howev- .
er,'pursuant to the, principles expressed in Herman
Sausage, supra, and previously by the Board in the
cases noted by the Trial Examiner,6 Respondent's
proposals and its approach to bargaining
... may be taken into account in assessing its
motivation in collective-bargaining negotiations.
Thus, rigid adherence to proposals, which are
predictably unacceptable to the employee repre-
sentative, may be considered in proper circum-
stances as evidencing a predetermination not to
reach agreement. [Sweeney, supra, slip op. at p.
12.]
A close examination of Respondent's proposals
shows that, Respondent maintained an inflexible
attitude and position on all major issues, both
economic and noneconomic, and made -no real
attempt to reconcile the differences between the
parties. In particular, Respondent never altered any
of its original economic proposals; rather, it took the
position that its wages were fair and adequate and
that it liked its existing benefit plans.? There was no
real bargaining on major economic issues and the
record does not show a genuine attempt by the
Respondent to explain the basis for its assessment of
its economic proposals.8
Moreover, by providing, in a number of areas, for
less than the existing terms and conditions of
employment9 which may be viewed as de minimis
when considered separately and independently but
finally said that Respondent would consider a new wage proposal.
However , Madden withdrew this statement of intention at the end of the
meeting.
8 The record evidence is scanty with regard to the reasons or explanation
Respondent gave the Union during negotiations for perfernng its proposals.
This may be partially ' explained by the fact that the bulk of the testimony
about the discussions between the parties was introduced into the record by
the General Counsel' s witnesses In particular , Evelyn Marston , a member
of the Union's bargaining committee, testified at length from notes about
the individual proposals presented at each meeting , However, Marston
offered little - insight into"the reasons Respondent gave, if any , for the
positions it took on either its own or the Union's proposals Moreover, there
is little testimony by Respondent 's witnesses about the substance of the
discussions on the proposals at the negotiation meetings.
9 Such proposals are more fully set forth in the Trial Examiner's
Decision . With respect to merit increases , the record shows that Respondent
had a ment increase plan in effect prior to the certificationof the Union and
the commencement of bargaining. The Union made inquiries about the
status of merit increases after the commencement of bargaining , but the
(Continued)
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which are significant in the context of whether
Respondent bargained in good faith as required by
the Act, while rigidly holding the line in all other
areas, and by proposing limited union-security and
plant visitation provisions, Respondent could only
have anticipated that the Union would have great
difficulty in accepting Respondent's proposals and
reaching agreement.
Accordingly, we agree with the Trial Examiner that
the Board's language in Sweeney & Co., Inc., supra,
applies equally to the instant case:
Respondent's position with respect to
economic issues, considered in the light of the
employment benefits enjoyed by its work force at
the outset of negotiations, was generally lacking
in concessions of value and is strongly suggestive
of an intention ,on its part to engage in sterile
discussions, accompanied by illusory and mean-
ingless concessions, without real intention of
engaging in the type of bargaining that could lead
to the execution of a labor contract. It would be
unreasonable to assume that Respondent's atti-
tude with respect to economic issues was taken
without anticipating that communication of its
views to the Union would create anything other
than immediate stalemate. [Sweeney, supra, A. op.
p. 12.]
Based upon our analysis of Respondent's propos-
als, we are persuaded that they showed a rigidity so
intense as to warrant an inference that Respondent-
was seeking the avoidance rather than the obtaining
of an agreement.
II. PROCEDURAL CONSIDERATIONS
A., Negotiation Meetings
Respondent unilaterally decided, prior to the
commencement of the negotiations, that no negotia-
tion meetings were to be held during working hours.
Soon after negotiations began, Respondent unilater-
ally decided that negotiations should be held only
once a week. The record also shows that Respondent
arranged for the location of the meetings. As is
obvious from the fact that some 20 meetings were
held, the Union, capitulated and met with the
Respondent when and where the Respondent chose
to meet. However, the, record is also clear that the
Union sought to find other mutually, satisfactory
times and places for the meetings and to schedule
additional' meetings in order to stimulate progress in
the negotiations. By contrast, Respondent refused to
consider an alternative.
On February 22, 1971, the Union sent the Respon-
dent a telegram requesting that the next negotiation
meeting be held before 2 p.m. on any Monday
through Friday. All the previous meetings were held
after working hours. This request raised anew
(Respondent had previously rejected several union
offers to meet on Saturday) the question of discuss-
ing, considering, and agreeing upon a satisfactory
time and place to meet. Rather than consider an
alternative, Respondent simply reiterated its earlier
position and insisted on meeting at the time and
place it had unilaterally selected. Such conduct
patently indicates an unusual reluctance to accom-
modate to the required bargaining relationship and is
wholly inconsistent with a genuine desire to reach a
mutual accommodation in the absence Of other
circumstances which are made fully known to the
other party to the negotiations.
B. Access to the Plant
Beginning with the first negotiation meeting on
June 18, 1970, the Union asked permission of the
Respondent to enter the plant to secure information
on job classifications. This request was repeated at a
number of meetings thereafter, but not, the Trial
Examiner found, at the February I1 or 18.meetings.
Respondent consistently rejected the Union's re-
quests. The Trial Examiner found that Respondent's
refusal to allow the Union access to the plant could
not be considered violative of the Act because the
Union failed to request. access during the Section
10(b) period. However, the Trial Examiner did
consider Respondent's denial of the request by the
Union as part of the background to determine
whether or not Respondent was bargaining in good
faith. M. R. & R. Trucking Company, 178 NLRB 167.
At the time of the Union' s initial request, at the
outset of negotiations, job descriptions were not
available to the Union. While the Respondent did
arrange to have job descriptions prepared, the record
shows that the first group of job descriptions` were
not made available to the Union until September 9,
nearly 3 months after the first negotiation meeting.
Further, the record shows that the members of the
Union's negotiating committee were not familiar
with all the jobs in the bargaining unit.
As more fully set forth by the Trial Examiner, the
Respondent also denied the Union an opportunity to
verify the accuracy of the job descriptions after they
were made available in September. Respondent
contends that the Union never asked to verify
specific jobs and never demonstrated that access to
the plant was necessary. On the other hand, there is
record shows that Respondent provided figures only for the prebargaining merit increases had occurred and, if so, constituted a unilateral change in
period. Moreover, Respondent did not include a meet increase plan in its the existing terms and conditions of employment, was not litigated here.
proposals The question of whether or not a suspension or cancellation of
BORG-WARNER CONTROLS 729
no showing that the Respondent would have been
inconvenienced, or that production would have been
interfered with or, interrupted, or , that Respondent
had any legitimate business reason for denying the
onsite inspections. Rather, Respondent took the
position that there was no need for a showing that
production would be interfered with, since such visits
would necessarily affect production.
Although this conduct could not in itself have been
alleged an unfair labor practice, the 10(b) limitation
does not apply to "earlier events which may be
utilized to shed light on the true character of matters
occurring within the limitation period.... " Local
Lodge No. 1424, JAM (Bryan Manufacturing Co.) v.
N.L.R.B., 362 U.S. 411, 416-417 (1960). The record
establishes that Respondent decided to deny the
Union access to the plant early in the negotiations, at
a time when the Union's negotiating committee was
not familiar with all the jobs in the bargaining unit
and when job descriptions were not available.lo Such
conduct necessarily has a negative impact on
bargaining for the Union cannot prepare for mean-
ingful bargaining in the absence of basic information
relating to the employees' job descriptions, classifica-
tions, or their actual duties, a matter of paramount
importance to both the employees and the Union.
C. Refusal To Release Employees During
Working Hours
Throughout the negotiations, Respondent refused
to release employees on the, Union's negotiating
committee from work in order to allow these
employees to participate in bargaining sessions and
bargaining-related meetings. While Respondent's
position put a 'substantial burden on the employee
negotiators, the Trial Examiner found that the
inconvenience did not prevent bargaining and was
not a sufficient detriment to the bargaining process
to make unlawful Respondent's contention that the
employees' working time was for "work. We agree
than this conduct did not per se constitute a violation
of the Act. However, Respondent's refusal to even
consider an accommodation, particularly when the
record clearly shows that the employees were not
such key employees that they could not have been
replaced for the time needed for bargaining, and
especially where the Respondent was not being asked
to compensate these employees, supports a finding
that Respondent was not interested in accommodat-
ing in good faith the bargaining process but rather
was devising means' to frustrate and prolong the
10 This is but one example of the extremely restrictive positions taken by
Respondent with regard to any access by the Union to the plant.
Respondent's proposals on grievance procedures and plant visitation also
demonstrate Respondent's attempt to isolate the Union from the employees
it represented.
bargaining in the hopes that the Union would either
capitulate to its proposals or abandon the employees
it represented. In these circumstances, and on the
entire record, we conclude this conduct necessarily
had a negative impact on the bargaining relationship
and was part and parcel of Respondent's design not
to engage in meaningful bargaining with the certified
representative of its employees.
D. Refusal To Make Negotiators Available
During Working Hours
The record shows that Respondent refused to make
its negotiators available for negotiation meetings
during-working hours. The Trial Examiner did not
find this action to be a per se violation of the Act
because the Union never "specifically forced this
question by demanding-bargaining sessions during
working hours without coupling "that demand with its
insistence that employees be given time off for
negotiations."" This reasoning by the Trial Examin-
er raises a conflict between the Respondent's right,
under the facts herein, to deny employees on the
bargaining committee time off during working hours
for negotiations, and the Union's right freely to select
its own negotiators. For, whenever a bargaining
committee includes employees of the employer the
union is bargaining with, as here, the union would
be, ipso facto, unable to force the question of an
employer's refusal to make its negotiators available
during working hours. Consequently, we are not
persuaded by the Trial Examiner's resolution of this
issue. The Respondent's refusal to make,its negotia-
tors available during working hours is yet another
example of the rigidity with which Respondent
approached bargaining and further evidences its
design to avoid bargaining.
Respondent's Totality of Conduct
As noted above this case does not present a simple
case of whether the Respondent's actions constituted
an outright refusal to bargain with the certified
representative of the employees, but rather whether
the record establishes that the Respondent engaged
in a lengthy series of bargaining conferences with no
intention of reaching agreement with the Union.
The issue is not, as Respondent suggests, that
Respondent did not make enough concessions.
Rather, the issue is whether Respondent's approach
to bargaining demonstrated an unyielding rigidity
during negotiations which made collective bargain-
11 Whether or not the Union, in its February, 22 telegram, coupled its
demand with an insistence that Respondent's employees be given time off
for negotiations, must be inferred from the past bargaining pattern, since no
specific mention of the coupling of the requests "appears on the face of the
telegram.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing a futility. Respondent's unyielding rigidity is
clearly established both in terms of Respondent's
substantive proposals and its conduct relative to the
procedural considerations of bargaining. According-
ly, the totality ,of Respondent's conduct during its
bargaining compels the conclusion that Respondent
only went through the elaborate motions of bargain-
ing and adapted its tactics to its own ends with no
sincere desire of reaching an agreement.12 -
Based upon the entire record and for the reasons
discussed above, we find that at the February 11 and
18, 1971, meetings, Respondent was actively pursu-
ing a course of bargaining that was designed to
compel the Union to reject its proposals, that 'it was
patently engaging in surface bargaining without a
good-faith intention of reaching agreement, and that
its actions were a total rejection of the principles of
collective bargaining. Respondent's conduct clearly
violated Section 8(a)(5)'and (1) of the Act.
find, as does the majority, that the Employer was
guilty of overall bad faith is to violate statutory and
judicial limitations upon the Board's authority in this
type of case through issuance of a remedy which in
effect requires concessions of the Employer. Such a
result conflicts with the statutory policy encouraging
free collective bargaining by inviting labor organiza-
tions to indirectly seek through the Board's processes
what cannot be obtained at the bargaining table. I
would dismiss the complaint in its entirety.
12 The Trial Examiner's findings with respect to Respondent's general
attitude toward bargaining as expressed by Madden, its chief negotiator, are
supported by the record. Madden's conduct supports the findings herein,
and, indeed , explains them . Accordingly, we specifically adopt those
findings.
13 Compare N L.R.B. v. Herman Sausage Co., Inc., 275 F.2d 229, and
Sweeney & Co., Inc., 176 NLRB 208, enfd . in pertinent part 437 F.2d 1127
(C.A. 5, 1971), as well as the cases cited by the majority at In. 6.
TRIAL EXAMINER'S DECISION
ORDER
Pursuant to Section 10(b) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Borg-Warner Controls, a
Division of Borg-Warner Corporation, Santa Ana,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial
Examiner's recommended Order.
CHAIRMAN MILLER, dissenting:
As stated by the Supreme Court in N.L.R.B. v.
American National Insurance Co., 343 U.S. 395, 404,
"the Board may not, either directly or indirectly,
compel concessions or otherwise sit in judgment
upon the substantive terms of collective bargaining
agreements." If we are to adhere to this injunction
caution must be exercised to avoid findings of
subjective bad faith based solely upon the view that
an employer could have adopted what we might
regard as a more reasonable stance at the bargaining
table.
Here, the entire case against the Employer is
predicated upon its lawfully held positions with
respect to certain procedural matters and its failure
to make economic concessions. There is no evidence
of union animus or hostility to the bargaining
process. The Employer engaged in no conduct
independently violating Section 8(a)(5), nor is there
any extraneous evidence suggesting an intention to
avoid agreement.13
Neither Section 8(a)(5) nor 8(d) precludes an
employer from engaging in hard bargaining of the
type calculated to assure a favorable agreement. - On
this record, the evidence shows nothing more. To -
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Trial Examiner: This case was
tried at Santa Ana, California, on September 30 and
October 1, 1971. The charge was filed by the United
Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, Local 509, herein called the
Union, on June 11 , and the complaint was issued on July
30, 1971. The primary issue is whether Borg-Warner
Controls, a Division of Borg-Warner Corporation, herein
called Respondent, violated Section 8(a)(1) and (5) of the
Act by refusing to bargain in good faith with the Union.
The complaint alleges that Respondent engaged in dilatory
and evasive tactics, and surface and bad-faith bargaining,
including failing to meet at reasonable times , failing to
permit representatives of the Union to enter Respondent's
place of business to ascertain information concerning job
classifications , and offering proposals which amounted to
substantially less than the existing terms and conditions of
employment.
All parties were given full opportunity to participate, to
introduce relevant evidence , to examine and cross-examine
witnesses , to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and the Respondent.
Upon the entire record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in the manufacture
of motor controls with a place of business at 3300 South
Halladay Street, Santa Ana, California. Respondent
annually sells and ships materials valued in excess of
$50,000 directly to customers located outside the State of
California and is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
BORG-WARNER CONTROLS 731
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
On May 7, 1970, the National Labor Relations Board
conducted an election among the production and mainte-
nance employees' at Respondent's Halladay Street plant.
A majority of the employees voted for the Union and on
May 15, 1970, the Regional Director for Region 21 of the
Board certified the Union as the exclusive bargaining
representative of those employees. The first negotiating
session between Respondent and the Union took place on
June 18, 1970. Mark Madden was present as Respondent's
agent and chief negotiator. Also negotiating for Respon-
dent were Al Jerde (vice president), Charles Stoll (pro-
duction manager), Raymond Shrider (personnel manager),
and George Lewis (assistant personnel manager), all of
whom are admitted supervisors. Negotiating for the Union
were Jerry Whipple, who is president of the Union, and
four employees of Respondent who are on the Union's
negotiating committee, Horace Hubbard, Rich Shreve,
Evie Marston, and Al Lopez. Between June 18, 1970 and
February 18, 1971, negotiating sessions were held on 20
different occasions, generally on a once a week basis.
Madden was Respondent's chief negotiator at all sessions
and, except for George Lewis, the other company officials
were present at most of the meetings. Union President
Whipple was chief negotiator at all but three of the
meetings and, except for Hubbard, the same employee
negotiating committee was present at substantially all of
the meetings. For the last 10 meetings, George Duncan, a
commissioner for the Federal Mediation and Conciliation
Service, was also present. All of the meetings were held at a
room in the Coral Reef Motel which was rented for the
negotiations.
The General Counsel contends that Respondent's
conduct at these meetings evidenced the fact that Respon-
dent had no intention of reaching an agreement with the
Union and was merely engaging in surface bargaining.
Respondent, on the other hand, contends that it was
engaged in hard but lawful bargaining.
B. Respondent's Refusal To Grant the Union Access
to the Plant
In early June of 1970, Union President Whipple asked
Respondent's chief negotiator, Madden, for a list of
working conditions, wages, and hours, a copy of the
insurance plan and related matters so that they could get
started with negotiations. Thereafter, Whipple-also asked
1 The full description of the unit is: "All production and maintenance
employees including shipping and receiving employees, inspectors, electron-
ic test technicians, senior test technicians, final module assemblers and
testers, dispatchers, lift truck operators, electricians, tool crib attendants,
production assemblers, electronic assemblers, electro-mechamcal assem-
blers , senior electro-mechanical assemblers, precision electro-mechanical
assemblers, stockkeepers, truckdrivers, and leadmen employed by Respon-
dent at its facility located at 3300 South Halladay Street, Santa Ana,
California; excluding all office clerical employees, plant clerical employees,
for job descriptions. As the Respondent didn't have job
descriptions in a usable form, job studies were undertaken
and, as they were completed on a piecemeal basis,
Respondent gave them to the Union.2 Beginning with the
first meeting on June 18, Whipple asked permission of
Madden to enter the plant to secure information on the job
classifications. This request was repeated at a number of
meetings thereafter. Whipple told Madden that it was
necessary for him to go into the plant to check out the job
descriptions. Madden's reply was always the same, that
there was no need for Whipple to enter the plant because
the members of the negotiating committee knew enough
about the jobs.
It is clear from the testimony of the members of the
negotiating committee that they were not familiar with all
the jobs in the bargaining unit and-that they were not in a
position to have knowledge concerning all the -job
descriptions that were handed by Respondent to the
Union.3 It would have been extremely difficult for the
Union to be able to, verify the accuracy of the job
descriptions given by Respondent without an on-the-site
inspection. The company is required to allow onsite
inspection by a union if the information the union seeks to
obtain is both relevant and necessary to enable the union
to fulfill its functions as the bargaining agent. Wilson
Athletic Goods and Mfg. Co., Inc., 169 NLRB 612. Such a
live study will also be required if it is needed for the union
to reliably evaluate data which is given by a company. As
the Court said in General Electric Co. v. N.LRB., 414 F.2d
918 (C.A. 4, 1969), cert. den. 396 U.S. 1005 (1970):
... each case requires a weighing of the union's need
to make the studies balanced against the inconvenience
which might be caused to the company in the process,
or the violation of any right of privacy that the
company may possess. In the case at bar, there is no
serious suggestion that the studies in question would
interfere with production, nor can we say that the
prerogatives of management to the private conduct of
its business should outweigh the union's demonstrated
need to the information and inspections that it
sought... .
In the instant case, Respondent furnished job classification
information to the Union which the Union sought to verify
by observing operations in the plant. There is no showing
that Respondent would have been inconvenienced, that
there would have been an invasion of Respondent's right to
privacy, that production would have been interfered with,
or that Respondent had any legitimate business reason for
denying the onsite inspections. Cf. West Coast Casket Co.,
192 NLRB No. 79. However, Respondent argues that it
cannot be found to have violated the Act by refusing to
allow the Union access to the plant because the charge was
professional employees, engineering technicians, draftsmen, test equipment
technicians, technical writers, computer programmers, guards, and supervi-
sors as defined in the Act."
2 According to the credible testimony of union witness Marston,
Respondent gave the job descriptions to the Union as soon as they were
written up
3 A perusal of the description of the unit set forth above leads to the
conclusion that it would be most unlikely for a handful of employees to
know enough about the various jobs to evaluate job descriItions.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not filed within 6 months of that refusal and, therefore,
that that allegation is barred by Section 10(b) of the Act.
The charge was filed on June 11, 1971. Section 10(b) of
the Act provides: ". . . no complaint shall issue based
upon any unfair labor practice occurring more than six
months prior to the filing of the charge...." Therefore,
Respondent's conduct before December 12, 1970, cannot
be found to constitute an unfair labor practice, nor can it
cloak with illegality that which was otherwise
unlawful," even though the events barred by Section 10(b)
of the Act ". . . may be utilized to shed light on the true
character of matters occurring within the limitation
period...." Local Lodge No. 1424, International Associa-
tion of Machinists, AFL-CIO, et al. v. N.L.R.B., 362 U.S.
411 (1960).
The only two bargaining sessions within the 10(b) period
were on February 11 and 18, 1971. The meeting before
those took place on December 3, 1970. There is no
contention that the Union requested access to the plant at
the February 11 meeting. However, there is a sharp conflict
of testimony concerning whether such a request was made
at the February 18 meeting. Union President Whipple and
Vice President Bluto both averred that Whipple made such
a request at the February 18 meeting. Respondent's chief
negotiator, Madden, and Vice President Jerde both averred
that no such request was made at that meeting. The
General Counsel put in the bulk of his case through Union
Committeewoman Marston, who testified from detailed
notes that she took at all the meetings. She impressed me as
a scrupulously conscientious and honest witness. She did
not corroborate the testimony of Whipple or Bluto but
testified that she didn't remember whether the request was
or was not made at the February 18 meeting. Her notes did
not show any request at that meeting, even though her
testimony, based on her notes of prior meetings, did show
such a request was made at earlier meetings. As Marston's
notes and testimony do not support Whipple and Bluto, I
credit Madden and Jerde with regard to their testimony
that the Union did not request access to the plant at the
February 18 meeting . It, therefore, appears that the request
for access to the-plant and Respondent's denial of that
request both occurred prior to the limitation period set
forth in Section 10(b) of the Act and no finding that
Respondent violated the Act by refusing access can be
made.
However, as the Board said in M. R. & R. Trucking
Company, 178 NLRB 167, in discussing the criteria the
Board uses in determining good faith:
But, clearly, the "previous relations of the parties,
antecedent events explaining behavior at the bargain-
ing table, and the course of negotiations" (quoted from
Mr. Justice Frankfurter's opinion in N.L.R.B. v. Truitt
Manufacturing Co., 351 U.S. 149, 155) all form part of
the fabric of the evidence on which the judgment must
ultimately be based. Accordingly while 10(b) limita-
tions preclude our finding unlawful in the instant case
any conduct by Respondent occurring before July 2,
1967, we have taken into account, as relevant back-
ground, the earlier aspects of Respondent's relationship
with the Union about which evidence was ad-
duced. . . .
In the instant case , in determining the Respondent 's state
of mind with regard to good-faith bargaining within the
10(b) period, the entire history of the bargaining relation-
ship may be reviewed and the Respondent 's refusal to
allow the Union access to the plant is part of that
background.
C. The Time and Frequency of the Meetings
1. The setting
In June of 1970, Bruce Lee, a representative of the
Union, asked Respondent to allow the employees on the
negotiating committee time off to prepare for negotiations.
Those employees were granted a half day off . Sometime
between then and the first meeting, which was held on
June 18 , 1970, Respondent decided not to allow the
committee any time off in the future and not to hold any
meetings on company time . According to Respondent's
manager of industrial relations, Raymond H . Shrider,
Respondent predicated its decision on the belief that there
would be interference with production if the employees on
the negotiating committee were allowed to leave their jobs.
In addition , Shrider testified that the Respondent would
not meet on company time because Respondent 's execu-
tives who would be participating could not devote their full
attention to the bargaining without interruption except
after working hours. Respondent's chief negotiator and
attorney, Madden, indicated that there were two issues
involved, one, whether management had to reschedule
employees' time if the employees were on the negotiating
committee , and two, whether management had to make
officials available during normal working hours for
bargaining.
Employees on the negotiating committee , such as
Marston, worked from 7:30 a.m. to 4 p.m. each day.
During that entire period , Marston worked on her feet.
Negotiating sessions started at 5 p.m. and continued until
9:30 or 10 o'clock in the evening . All were held at the Coral
Reef Motel. At the first meeting which was held on June
18, 1970, Whipple asked that they meet earlier in the day
and Madden replied that Respondent would meet only
after working hours . Respondent consistently maintained
this position right through the meetings of February 11 and
February 18, 1971. The parties stipulated that Respondent
decided that no negotiation meetings were to be held
during working hours and that this position was main-
tained throughout the negotiating sessions , including those
held on February 11 and 18, 1971. The parties further
stipulated that in the early part of July 1970, Respondent
decided that negotiating sessions should be held only once
a week and that Respondent maintained that position even
though there were requests for further sessions throughout
the negotiations, including ones held on February 11 and
18. At a number of meetings, Whipple asked that there be
additional sessions , more than once a week, and Respon-
dent consistently refused. Whipple also asked that Satur-
day meetings be held and that also' was refused by the
Respondent. At the February 11 meeting, the Union asked
for time off for the committee during working hours to go
over Respondent's proposals and Respondent denied the
request, saying that it would interfere with production. The
BORG-WARNER CONTROLS 733
Union made it clear on a number of occasions that when it
requested time off for the employees on the negotiating
committee, it was requesting that the employees be excused
from work without pay. When the Union asked for more
meetings, Respondent consistently replied that one meet-
ing a week was enough.
The last meeting was held on February 18, 1971. At the
close of the meeting, Madden proposed that the next
meeting be held at 5 p.m. on February 25. Whipple replied
that he felt that they should meet at a different location
and that the committee was willing to meet any day the
following week prior to 2 p.m. Madden answered that he
would be at the Coral Reef for a meeting at 5 p.m. on the
25th. By telegram dated February 22, 1971, Whipple
notified Madden that the Union was willing to meet at
Federal Mediation any day Monday through Friday before
2 p.m. Madden replied by a telegram dated February 22,
which stated that the Respondent would not meet before 2
p.m. but would be present Thursday, February 25, at 5
p.m. at the Coral Reef Motel as per all previous meetings.
The union representatives did not appear at the Coral Reef
on the 25th and no meeting was held then or thereafter up
to the date of the hearing.
2. The release of employees from duty
The complaint alleges that Respondent refused to meet
with the Union at reasonable times. The question is
presented whether Respondent had a duty to release
employees on the negotiating committee from work
without pay in order to allow those employees to
participate in bargaining sessions and in bargaining related
meetings . The testimony of those employees indicates that
they were not such key employees that they could not have
been replaced for the time needed for bargaining.4 It is
unlikely that if they were out because of sickness or for
other reasons, the Respondent would not have closed its
operations. On the other hand, it is also apparent that those
employees were part of the productive work force and they
were employed because Respondent needed their services.
The Board has long held that an employer need not allow
his employees to engage in union activities such as union
solicitation during working time (Working time is for
work.). Stoddard-Quirk Manufacturing Co., 138 NLRB 615.
The Board has also held that an employer's refusal to meet
with a union shop committee during working hours does
not constitute a violation of ,the Act. Converse Bridge and
Steel Company, 49 NLRB 374. However, the Board will
look to the particular facts of each case without applying
mechanical criteria. In Westinghouse Electric Corporation,
132 NLRB 406, the Board found that an employer 's refusal
to grant an employee leave in order for him to participate
in negotiation during working hours did constitute a
violation of the Act where it was combined with a refusal
of the company to meet after working hours. That
combination of positions was found to be "a barrier to the
Union's right to freely select its own negotiators" and a
violation of Section 8(a)(5) of the Act.
In each case, a balance must be reached between the
legitimate interest of an employer in effective utilization of
working time and the statutorily protected interest of
employees in designating representatives of their own
choice for the purpose of collective bargaining. In Warner
Gear Division, Borg-Warner Corporation, 102 NLRB 1223,
the Board found that a company did not violate the Act
where it refused to promote a shop steward, who under a
collective-bargaining contract was allowed to engage in
union activities on company time, because respondent did
not want the person in the higher position to take off from
company time. In Cameron Iron Works, Inc., 194 NLRB
No. 23, where there was no contractual right for the job
steward to use company time, the Board found that a
company did violate the Act by requiring an employee to
choose between accepting a demotion from his position as
leadman to that of journeyman or resigning his position as
union steward . In the Cameron case , the Board narrowly
construed the Warner case and held that the employees'
statutory right to select their own bargaining agent should
not be denied in the absence of compelling evidence that
such limitations were required, and even then only such
limitations as appeared reasonable and necessary would be
permitted.
In the instant case, Respondent put a substantial burden
on the employee negotiators for the Union by refusing to
allow them time off during work and meeting with them
only after they had put in a full day of labor. However, this
inconvenience did not prevent bargaining and Respondent
in fact met with the Union 's negotiating committee on 20
separate sessions. On balance, I do not believe that the
inconvenience was a sufficient detriment to the bargaining
process to make unlawful Respondent's contention that the
employees' working time was for work.
3. The availability of Respondent's representatives
A different question is presented with regard to whether
Respondent had to make its own negotiators available
during work. As was said in A. H. Belo Corporation, 170
NLRB 1558:
The duty "to meet at reasonable times and confer in
good faith" is expressed in Section 8(d) of the Act.
Cases have repeatedly held, for example, that parties
are obligated to apply as great a degree of diligence and
promptness in arranging and conducting their collec-
tive-bargaining negotiations as they display in other
business affairs of importance . "Labor relations are
urgent matters too." ("M" System, Inc., Mobile Home
Division Mid-States Corporation, 129 NLRB 527, 549).
Respondent negotiated through high level executives and
without doubt those executives were busy with other
important matters . However , Respondent's flat refusal to
make negotiators available during working hours because
the executives chosen for negotiators would be interrupted
during negotiations if they were held during working hours
indicates that Respondent was not prepared to meet its
statutory duties. It is inconceivable that Respondent would
handle its other business affairs of importance in the same
manner. Respondent might well want to meet an , important
4 Marston does wiring and soldering . There are six or eight employees in of doing his work. Lopez winds coils to specifications. Other employees in
her department who can do the same type of work . Shreve was a mechanical his department do the same work Hubbard did not testify.
inspector in the sheet metal machine shop . One other employee was capable
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customer after working hours so as to give that customer
undivided attention, but it is hardly likely that it would
flatly refuse to meet with that customer at any time during
working hours.
As the Board repeated in Insulating Fabricators, Inc., 144
NLRB 1325, enf. 338 F.2d 1002 (C.A. 4, 1964):
... Labor relations are urgent matters too. If the
other activities of Respondent's attorney made it
impossible for him to devote adequate time to
reasonably prompt and continuous negotiations, it was
the Respondent's obligation to furnish a representative
who could. The duty to bargain in good faith includes
the duty to be available for negotiations at reasonable
times as the statute requires. That duty is not
discharged by turning over the conduct of negotiations
to one whose other activities make him not so available.
I do not believe that Respondent's refusal to make its
negotiators present during working hours was under the
circumstances of this case reasonable or justifiable under
the Act. The Union could have specifically forced this
question by demanding bargaining sessions during working
hours without coupling that demand with its insistence that
employees be given time off from work for negotiations.
However, it did not do so. I have found that Respondent
did not have to give the employees on the negotiating
committee time off from work and as the Union never
asked to meet the Respondent during working hours
without those employees, Respondent's position with
regard to making its own executives available was never
put to the test. Such availability, in itself, was never
demanded by the Union. I therefore am unable to find that
Respondent violated the Act per se by refusing to make its
negotiators available during working hours. However, that
refusal and the Respondent's position with regard thereto
can be considered as one of the elements in determining
Respondent's state of mind with regard to the requirement
that it engage in good-faith bargaining.
4. Respondent's decision as to the time and
frequency of meetings
The parties stipulated, and I find, that prior to the
commencement of negotiations, Respondent decided that
no negotiation meetings were to be held during working
hours and that Respondent maintained this position
throughout negotiating sessions, including those held on
February 11 and 18, 1971. The parties further stipulated
that in the early part of July 1970, Respondent decided
that negotiating sessions should only be held once a week
and Respondent maintained this position even though
there were requests for further sessions throughout negoti-
ating sessions, including the ones held on February 11 and
18, 1971. Though requests in fact were made by the Union
that the time and frequency of the meetings be changed,
there was no point in even discussing these matters in a
bargaining context, because Respondent had already
unilaterally decided the time and frequency of the
meetings. By making such an unequivocal decision
regarding these matters, Respondent had removed them
from the ambit of collective bargaining. Respondent
consistently made it clear and even stipulated that its
decision had been reached. There was no room for
bargaining on those matters and Respondent in effect
refused to bargain about them.
In his brief, the General Counsel argues that the duty to
bargain includes the duty to negotiate concerning meeting
times. The issue is therefore raised whether procedural
matters relating to negotiations, such as the time and
frequency of meetings, are mandatory subjects of bargain-
ing. Section 8(d) of the Act requires that the parties "meet
at reasonable times and confer in good faith with respect to
wages, hours and other terms and conditions of employ-
ment, or the negotiation of an agreement, or any question
arising thereunder..... It is noted that in the statutory
phraseology, the requirement to meet at reasonable times is
separated from the duty to confer in good faith. It would
thus appear that a party can unilaterally set his own
schedule for meetings as long as that schedule provides for
meetings at reasonable times. In N.L.R.B. v. Wooster
Division of Borg-Warner, 356 U.S. 342 (1958), the United
States Supreme Court dealt with the topic of mandatory
bargaining in terms of whether a "clause is a subject within
the phrase `wages, hours and other terms and conditions of
employment' which defines mandatory bargaining." The
procedural accouterments of negotiations are not "wages,
hours and other terms and conditions of employment" and
I must therefore find that the time and frequency of the
meeting' were not mandatory subjects of bargaining.
Respondent therefore -could unilaterally decide those
matters even before the commencement of bargaining as
long as the decision allowed for meeting at reasonable
times. I am unable to find that Respondent's decision to
meet only 1 day a week and only after working hours was
per se unreasonable or unlawful. However, Respondent's
rigidity in this regard may be considered together with its
totality of conduct to determine whether it was engaging in
good-faith bargaining as required by the Act. Cf. A. H.
Bello Corp., supra.
D. The Surface Bargaining Issue
1. Respondent's rigidity of position
There is testimony on the record showing the give and
take of discussions throughout the 20 negotiating sessions.
No purpose will be served by reiterating the minutiae of
those sessions in this decision. There is no contention that
Respondent refused to fully discuss any issue that was
raised by the Union. These discussions led to agreement on
a few areas and disagreement on many. One of the areas of
disagreement related to wages. Throughout the negotia-
tions; including the last session on February 18, 1971, the
Union demanded an increase in wages and Respondent
refused with the statement that it felt its wages were fair.
At some meetings, Respondent expanded on that by saying
that its wages were comparative with that of other
companies in the area. At one of the July meetings, when
Whipple was pressing for a wage increase, Madden said,
"We are not going to have a wage increase so you can
make these people pay dues." In general and with only
minor exceptions, Respondent never modified any of its
original economic proposals during negotiations and those
economic proposals were based on its existing conditions.
At the first meeting on June 18, 1970, the Union orally
BORG-WARNER CONTROLS 735
presented its demands which were taken down in writing
by Respondent. At the July 2 meeting, Respondent
submitted its contract proposals to the Union. That
consisted of an entire proposed contract of 50 separate
articles and 3 appendices. The Company's proposal
contained provisions for very limited union security and
union checkoff. The proposed union-security clause
required in part that employees who had signed dues
deduction cards would be required to continue paying dues
as a condition of employment. The proposal also contained
a no-strike, no-lockout clause and a multistep grievance
procedure terminating in binding arbitration. The provi-
sions of Respondent's proposal relating to wages, overtime
pay, standby pay, callback pay, report pay, shift premium,
holidays, Good Friday, sick leave, group insurance,
pensions, and cost-of-living allowance wage progressions
represented substantially the existing terms and conditions
of employment at the, time the offer was made.5 Sometime
in July, the Union submitted to the Respondent its full list
of proposals in the form of a proposed contract. This
proposal called for a 75 cents an hour across-the-board
raise.
Negotiations proceeded and sometime in August Res-
pondent gave the Union a list containing its understanding
of what had been agreed to and not agreed to as of July 29,
1970. In addition, on August 4, 1970, Respondent wrote to
the Union explaining in more detail Respondent's under-
standing of what had and what had not been agreed to.
Respondent's original proposals provided for visitation
by union representatives at the plant only at Respondent's
executive offices. Respondent submitted a revised proposal
on August 5, 1970, relating to visitation. Under that
proposal, nonemployee representatives of the Union would
have certain limited rights of access to the plant and
limited rights to talk to shop stewards in Respondent's
cafeterias in connection with the processing of grievances.
The proposal stated that the Union had to give Respon-
dent 3-days written notice of a visit, that a representative of
Respondent had to accompany the union representative
while he was in the plant, and that the union representative
could not be accompanied by or talk to a shop steward
during the visit unless agreed to by the Respondent. The
steward was to be allowed to meet the union representative
in Respondent's cafeteria'during lunch and rest periods
only if the steward didn't lose any working time, the union
representative was accompanied by Respondent's repre-
sentative to and from the cafeteria, a 3-day notice of the
visit was given, no meeting was held with any employee
other than the steward, and the meeting was used to
discuss grievances at the step 3 level. .
At the September 17 and 24 meetings, the Union
submitted to Respondent a number of written counterpro-
posals relating to an agency shop, leaves of absence,
visitation by union representatives, management preroga-
tives, and temporary transfers. At the October 8 meeting,
Respondent gave the Union another list of proposals in
which seniority lists, probationary period, out of unit,
promotions, supervisors, transfers (permanent), and trans-
fers (temporary) were listed as new proposals, and
visitation, checkoff, and leadmen were listed as restated
proposals. At the October 22 meeting, Respondent submit-
ted a revised grievance proposal. The original grievance
proposal provided that the union steward was to present
grievances to a management official at the end of each
day's shift. The revised proposal allowed the presentation
of grievances during the last 15 minutes of a day's shift.
The original proposal provided that all time taken by union
representatives in steps 1 and 2 of the grievance procedure
would be during nonworking hours. The revised proposal
allowed those activities during the last 15 minutes of each
day shift, while also providing that such time would be
unpaid.
By letter dated October 6, 1970, Respondent notified the
Union of its understanding as to which parts of the
contract had and had not been agreed to. At the February
11 or 18, 1971 meeting, Respondent revised its original
proposal with regard to leaves of absence. Respondent
submitted its proposals and revised proposals to the Union
in writing. Many of the Union's counterproposals were in
writing and others, particularly with regard to wage
demands, were submitted orally.
At the February 18, 1971, meeting, Respondent present-
ed the Union a complete list showing its understanding of
what had and had not been agreed to as of that date. It
also showed Respondent's then outstanding proposals on
all matters that had not been agreed to. It was stipulated
that the document did indicate which matters had been
agreed to in whole or in part. It showed complete or partial
agreement as to Respondent's original or modified propos-
als with regard to the following clauses: table of contents,
parties, recognition, purpose, management, waiver, proba-
tionary period, checkoff, shop stewards, bulletin board,
definitions, payday, hours, overtime pay, holidays, jury
duty, seniority, leadmen, addresses, discipline, termina-
tions, discrimination, savings clause, obligation to bargain,
no-strike, no-walkout, and wages (The agreement was
limited to form only and referred to an appendix A which
was to set forth wage rates. There was no agreement as to
the wage rates.). As to the following clauses, there was no
agreement: union membership, visitation by union repre-
sentatives, grievance procedure, overtime, report pay,
callback pay, standby pay, shift premiums, vacations,
Good Friday, sick leave pay, group insurance, rest periods,
leaves of absence, seniority lists, supervisors, promotions,
out of unit, transfers, pensions, machinist training pro-
gram, cost-of-living allowance, wage progression, duration,
wage appendix, arbitrator names, and' dues deduction
authorization cards.
Respondent took an extremely tough line with regard to
anything that would cost it money or that could in
Respondent's view interfere with production. Though
Respondent was willing to discuss everything and to revise
some of its original proposals in the light of matters
brought up at the bargaining table, the revisions were
extremely limited in nature and never touched on any
substantial economic matters. Respondent's rigid stance
with regard to economic and other matters can be
considered as part of the totality of conduct in determining
its state of mind with regard to good-faith bargaining, but
on the facts set forth in the record, I am unable to find that
5 This finding is based on a stipulation of the parties.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's "tough" stance was per se a violation of the
Act. Section, 8(d) of the Act specifically provides that an
employer's obligation to bargain does not compel him to
agree to a proposal or require the making of a concession.
As the United States Supreme Court said in N.L.R.B. v.
American National Insurance Company, 343 U.S. 395
(1952), ". . . the Board may not, either directly or
indirectly, compel concessions or otherwise sit in judgment
upon the substantive terms of collective bargaining
agreements." Respondent's refusal to make any conces-
sions with regard to economic matters, therefore , may not
in itself be found to be a violation of the Act. However, as
the Board stated in Sweeney & Co., Inc., 176 NLRB No. 27:
... an employer's proposals may be taken into
account in assessing its motivation in collective-bar-
gaining negotiations . Thus, rigid adherence to propos-
als, which are predictably unacceptable to the employ-
ee representative, may be considered in proper circum-
stances as evidencing a predetermination not to reach
agreement . [Fns. omitted. ]
2. Respondent's proposals that allegedly offered
less than the existing terms and conditions of
employment
The General Counsel contends that Respondent's
proposals contained seven items -which would have
reduced existing terms and conditions of employment and
that those proposals indicated that Respondent was not
bargaining in good faith. The proposals related to vacation
pay, holiday pay, merit increases, rest periods, report pay,
sick leave pay, and grievance procedure.
Respondent 's existing vacation procedure was that
employees would receive vacation credit days based on
length of service for which the employee would be paid on
the basis of his hourly rate plus cost of living allowance.
Respondent's proposal to the Union was that vacation pay
should be based on the straight time hourly earnings
(including straight time hours of overtime worked) to a
maximum of 2,080 hours of each employee times a fixed
percentage which would vary depending on length of
employment. The General Counsel in his brief pointed to a
situation in which it would be possible for an employee to
receive less vacation pay under the proposal then under the
existing practice. On the other hand, Respondent points to
situations where an employee would receive greater
vacation pay under the proposal. I do not believe that the
proposed change was intended to or would have the
substantial effect of undercutting existing standards.
Respondent's proposal with regard to holidays provides
that an employee must work the "scheduled work day
before and after" the holiday to be eligible for holiday pay.
The prior practice, as indicated in Respondent's handbook,
provides that the employee must work at least 4 hours on
the day before and the day after the holiday to be eligible.
Respondent's proposal also provides that an employee who
is scheduled to work on a holiday and fails to report shall
not receive holiday pay for the unworked holiday. No such
provision exists in Respondent 's handbook.
Respondent's handbook provides for merit increases, a
subject which was not raised in its proposals to the Union.
Merit increases generally involve unilateral wage raises
established by the Company. Respondent did not seek
such unilateral authority but that does not indicate that
Respondent was seeking to reduce wage standards.
Respondent's handbook provides for two 10-minute rest
periods during an 8-hour shift . Respondent 's, proposal
provides that no rest period need be given if an employee's
total work time is less than 3-1/2 hours.
Respondent's existing practice with regard to call-in pay
is to pay 4 hours regular straight time hourly rate,
including shift premium and current cost of living
allowance. Respondent's proposal refers only to 4 hours
straight time pay.
Respondent's proposal provides that an employee shall
not receive sick leave pay for the first 4 hours of each
absence due to illness or injury. Respondent's handbook
contains no such limitation on sick leave.
Prior to recognition of the Union, Respondent main-
tained system of communication with its employees
under which matters such as safety as well as grievances of
employees were handled. During that time, employee
Larry Powers was on the Company's grievance committee
for the test department and I day a month he met with
management and other employees an hour before the end
of the working day. He also collected grievances from
other employees and brought up any matters that he saw
fit. He was given 5 minutes during working time to gather
grievances . He could bring them to either a supervisor or to
the grievance committee. On occasions , he spoke to
company representatives about grievances for up to half an
hour on company time. Each of the six or eight depart-
ments had a representative . The grievance committee was
disbanded by Respondent when the Union became the
collective-bargaining representative and the employees
were told that the Union was the sole representative of the
employees . The grievance procedure is set forth in
Respondent's handbook. It provides that no employee will
suffer loss of pay for time spent discussing his grievance.
Respondent 's proposal to the Union with regard to
grievance procedure provides that all investigation of
grievances by union steward shall be during nonworking
hours provides only 15 minutes at the end of the day shift
for presentation of the grievance to management officials
and further provides that all time taken by representatives
of the Union shall be at the Union' s expense . The General
Counsel argues that Respondent's proposals represent a
substantial decrease in existing benefits . However, I am
unable to draw a meaningful parallel between a paternalis-
tic company organized and company-controlled method
for communicating with employees and a collectively-
bargained grievance procedure . Respondent 's proposal
provides for the latter even if there are restrictions on a
steward's activities during working hours and even if
Respondent refuses to pay for the steward's activities.
In determining whether an employer is bargaining in
good faith, one of the factors to be considered is whether
the employer's proposals would reduce the employees'
existing working conditions of wages. Dothan Eagle, Inc.,
174 NLRB No. 120. However, in this case, the reductions
of benefits were de minimis in nature and no inference can
be drawn from them that Respondent was trying to avoid
reaching an agreement.
BORG-WARNER CONTROLS 737
3. Respondent's attitude toward negotiations
Claire Phillips, an assistant to the vice president of the
UAW, was present at the meeting of October 15, 1970.
Phillips told Respondent's negotiators that he was there
because a strike vote had been taken and he was to
determine whether strike authorization was to be granted.
Union President Whipple then brought up the question of
overtime on Saturday, grievances on company time, union
shop, holidays, and wage proposals. As to each, Respon-
dent's chief negotiator, Madden, said that his position
would remain the same but he was willing to discuss any
issues. After further unsuccessful discussions on economic
matters, Phillips told Madden that he (Madden) didn't
want to reach any agreement but was just stalling around.
Madden then said that Whipple had brought in his big
guns from Detroit and would have the employees out on
strike when they didn't even have a contract. Madden also
said that Whipple would have a hard time getting the
people out on strike and asked them how many employees
they had, 40 or 45 percent. Whipple replied that they had
more than that. After further discussion of how much
strength the Union had among the female employees,
Madden said ". . . I don't know what the women are
thinking of . . . signing Union cards. I don't know what
they think they have to have an election for . . . they don't
need an election; they don't need to vote." Whipple replied
that Madden sounded like Hitler, to which Madden said
"Hitler had the right idea. There should be more people in
concentration camps., People shouldn't have any right to
vote, and it is going to be a guy like Hitler that is going to
take over this country one of these days, and I am going to
be prepared, because I have a gun... "6
Madden's remarks not only show an affinity for the
obsessions expressed by a lunatic fringe in American
pseudo politics but also indicate a contempt for the entire
collective-bargaining process. An argument could be made
that anyone possessing such views would be incapable of
engaging in the type of good-faith bargaining required by
the Act. However, in determining Respondent's good faith
with regard to bargaining, I must consider its totality of
conduct and I do not believe that the isolated emotional
bombast of a negotiator, no matter how unpalatable,
during the stress of bargaining should be given any great
weight.
4. Respondent's totality of conduct and the good-
faith bargaining issue
The principles of law controlling this case were well
summarized in Sweeney and Co., Inc., 176 NLRB No. 27,
enfd. , in pertinent part 437 F.2d 1127 (C.A. 5, 1971), in
which the Board said:
6 These findings are based on the credited testimony of Union
Committeewoman Evelyn Marston. Her testimony was corroborated in
substantial part by that of Whipple. Whipple testified that Madden referred
to a gun he carried in his car rather than, as testified to by Marston, on his
person and as that part of the gun remark was corroborated by
Respondent's witness, Jerde, I believe that Marston's testimony was
mistaken in that regard. Respondent's vice president for manufacturing,
Alvin Jerde, testified that_Madden's only reference to Hitler was in the
context of a discussion concerning the way that Hitlerr curbed inflation in
the 1920's He denied that concentration camps were ever mentioned, but
The duty to bargain collectively, as defined in
Section 8(d), requires the parties to "meet at reasonable
times and °confer in good faith with respect to wages,
hours, and other terms and conditions of employment;
or the negotiation of an agreement...: . Although
this obligation does not "compel either party to agree
to a proposal or require the making of a concession,"5
Section 8(d) does contemplate a willingness to enter
negotiations "with an open mind and purpose to reach
an agreement consistent with the respective rights of
the parties." 6 Simply entering "upon a sterile discus-
sion of union-management differences is not suffi-
cient. " 7 Essentially, "the ultimate issue of whether the
Company conducted its bargaining negotiations in
good faith involves a finding of motive or state of mind
which can only be inferred from circumstantial
evidence"8 Where, as in the instant case; an employer
has engaged in lengthy negotiations, which produced
little more than a strike, the question is whether "it is to
be inferred from the totality of the employer's conduct
that he went through the motions of negotiation as an
elaborate pretense with no sincere desire to reach
agreement, or that he bargained in good faith but was
unable to arrive at an acceptable agreement with the
Union."9
5 N.LR.B. v. American National Insurance Co., 343 U.S. 395, 402,404.
6 L L Majure Transport Co. v. N L.ItB., 198 F,2d 735, 739 (C A. 5);
Globe Cotton Mills v. N.LR.B., 103 F.2d 91,94 (C.A. 5).
7 N.L R.B. v. American National Insurance Co., supra, p. 402
8 N.LR.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131,
139-140 (C.A. 1), cert. denied 346 U. S. 887.
9 Ibid
In the Sweeney case, the Board found that a company
violated the Act where conduct similar to Respondent's in
the instant case was combined with actions that were "part
and parcel of an overall scheme to disparage the Union in
the eyes of unit employees and undermine its representative
status." There is no such evidence of undermining in the,
instant case. i
In evaluating Respondent's totality of conduct, the,
following matters must be considered: (1) In the early part
of negotiations, Respondent thwarted the Union's legitill
mate need for onsite inspection to evaluate job studies
prepared by Respondent. This attempt to isolate the Union,
from the plant was only one, of Respondent's methods of
separating the Union from the employees. Respondent's
position with regard to the grievance procedure showed
that it was most anxious to limit to the maximum degree
contact in the plant between the Union and the employ-
ees.7 Under Respondent's proposal, a union officer would
have to give 3-days written notice and follow the rigid
ground rules set forth above just to talk to a union steward,
about grievances in the cafeteria on the steward's lunch
did acknowledge that in the context of a discussion of the general
atmosphere in the United States, Madden said that one couldn't be blamed
if he camed a gun in his car for protection when one considers the crimes
that are being committed. Raymond Shnder, Respondent's manager of
industrial relations, was present during the discussion and testified as to
other matters but did not testify concerning this incident . As between Jerde
and Marston, I credit Marston, who was not only corroborated in
substantial part by Whipple, but was in her own right an extremely direct
and convincing witness
7 Cf. West Coast Casket Co., 192 NLRB 78.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time. (2) Respondent approached the bargaining table with
a rigidity with regard to procedures that could only have a
negative impact on bargaining . Respondent unilaterally
determined that there would be only one meeting a week
and that that meeting would be after working hours but
not on Saturdays . Its statement of position that it would
not make its representatives available for bargaining
during working hours also indicated a rigidity which boded
ill for bargaining. (3) Respondent 's proposals showed a
rigidity so intense as to warrant an inference that
Respondent was seeking the avoidance rather than the
obtaining of an agreement . Its proposals relating to wages,
overtime pay , standby pay, callback pay, report pay, shift
premium, holidays, Good Friday, sick leave, group
insurance , pensions , cost-of-living - allowances, and wage
progressions represented substantially the existing terms
and conditions of employment at the time the offer was
made . At no point did Respondent make any meaningful
change in its adamant refusal to agree to anything that
would change existing economic conditions. Though
Respondent did submit some counterproposals and did
reach agreement in some areas, any deviation that
Respondent allowed from its original position related to
peripheral matters. The Board 's language in Sweeney and
Co., Inc., supra, applies equally to the instant case:
... Respondent 's position with respect to economic
issues, considered in the light of the employment
benefits enjoyed by its workforce at the outset of
negotiations, was generally lacking , in concessions of
value and is strongly suggestive of an intention on its
part to engage in sterile discussions , accompanied by
illusory and meaningless concessions, without real
intention of engaging in the type of bargaining that
could lead to execution of a labor contract . It would be
unreasonable to assume that Respondent 's attitude
with respect to economic issues was taken- without
anticipating that communication of its views to the
Union would create anything other than immediate
stalemate.
(4) Respondent's general attitude toward bargaining as
expressed by Madden indicated hostility toward the
foundations upon which negotiations are built and to some
degree explained the rigidity which Respondent showed in
all its dealings with the Union . Madden's statement to
Whipple at one of the negotiating sessions that Respondent
was not going to give a wage increase so that the Union
could make those people pay dues further indicated that
basic hostility. -
Viewing Respondent's conduct as a whole, I find that at
the February 11 and 18 , 1971 meetings, it was actively
pursuing a course of bargaining that was designed to have
the Union reject its proposals, that it was engaging in
surface bargaining without a good-faith intention of
reaching an agreement , and that it rejected the principles
of collective bargaining in violation of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth 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.
V. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices as set forth above , I recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8 (a)(5) and (1) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and, upon request , bargain collectively in
good faith with the Union as the exclusive representative of
all employees in the unit set forth above, and in the event
that an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees will be accorded
the statutorily prescribed services of their selected bargain-
ing agent for the period provided by law , I recommend that
the intitial year of certification begin on the date that
Respondent commences to bargain in good faith with the
Union as the recognized bargaining representative in the
appropriate unit. Southern Paper Box Co., 193 NLRB No.
134.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act:
All production and maintenance employees includ-
ing shipping and receiving employees , inspectors,
electronic test technicians, senior test technicians, final
module assemblers and testers, dispatchers, lift truck
operators , electricians, tool crib attendants , production
assemblers , electronic assemblers, electro-mechanical
assemblers, senior electro-mechanical assemblers, pre-
cision electro-mechanical assemblers, stockkeepers,
truckdrivers , and leadmen employed by Respondent at
its facility located at 3300 South Halladay Street, Santa
Ana, California ; excluding all office clerical employees,
plant clerical employees , professional employees, engi-
neering technicians , draftsmen, test equipment techni-
cians, technical . writers, computer programmers,
guards, and supervisors as defined in the Act.
4. As certified by the National Labor Relations Board
on May 15 , 1970, the Union is the exclusive representative
of the employees in the aforesaid unit for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment , and other terms and conditions of
employment.
5. By refusing to bargain collectively in good faith
concerning rates of pay, hours of employment , and other
terms and conditions of employment with the Union on
and after December 12, 1970 , as the exclusive representa-
tive of its employees in the aforesaid unit, Respondent has
BORG-WARNER CONTROLS 739
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the conduct described in number 5, above,
Respondent interfered with, restrained, and coerced
employees in the exercise of their rights guaranteed to them
by Section 7 of the Act and thereby violated Section 8(a)(1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:s
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
10 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 21, in writing, within 20 days
from the date of this Order , what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ORDER
Respondent, Borg-Warner Controls, a Division of Borg-
Warner Corporation, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning rates of pay, hours of employment, and other
terms or conditions of employment with United Automo-
bile, Aerospace and Agricultural Implement Workers of
America, UAW, Local 509, as the exclusive representative
of its employees in the appropriate unit described in
paragraph 3 of the section entitled "Conclusions of Law"
above.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith
concerning rates of pay, hours of employment, and other
terms and conditions of employment with the above-
named Union, as the exclusive representative of its
employees in the appropriate unit, and embody in a signed
agreement any understanding reached.
(b) Post at its South Halladay Street, Santa Ana,
California, plant copies of the attached notice marked
Appendix.9 Copies of the notice, on forms provided by the
Regional Director for Region 21, after being duly signed
by Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced or covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of a receipt of this
Decision, what steps Respondent has taken to comply
herewith.10
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
9 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
After a trial at which all sides had a chance to give
evidence , a Trial Examiner of the National Labor
Relations Board has found that we violated the National
Labor Relations Act, as amended , and has ordered us to
post this notice.
The Act gives all employees these rights:
To engage in self-organization;
To form, join or help unions;
To bargain collectively through a representative
of their own choosing;
To act together for collective bargaining or other
mutual aid or protection;
To refrain from any or all these things except to
the extent that membership in a union may be
required pursuant to a lawful union -security
clause.
WE WILL NOT do anything that restrains or coerces
employees with respect to these rights . More specifical-
ly,
WE WILL, upon request , bargain collectively in good
faith concerning rates of pay, hours of employment,
and other terms and conditions of employment with
United Automobile , Aerospace and Agricultural Im-
plement Workers of America , UAW, Local 509, as the
exclusive representative of our employees in the
bargaining unit described below, and, if an understand-
ing is reached, we will sign a contract containing such
understanding.
The bargaining unit is:
All production and maintenance employees
including shipping and receiving employees,
inspectors , electronic test technicians , senior test
technicians, final module assemblers and testers,
dispatchers , lift truck operators , electricians, tool
crib attendants , production assemblers, electronic
assemblers, electro-mechanical assemblers , senior
electro-mechanical assemblers , precision electro-
mechanical assemblers , stockkeepers, truckdriv-
ers, and leadmen employed by Respondent at its
facility located at 3300 South Halladay Street,
Santa Ana, California ; excluding all office
clerical employees , plant clerical employees,
professional employees , engineering technicians,
draftsmen, test equipment technicians, technical
writers, computer programmers , guards and
supervisors as defined in the Act.
740
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BORG-WARNER CONTROLS,
A DIVISION OF BORG-
WARNER CORPORATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office,
Eastern Columbia Building, 849 South Broadway, Los
Angeles, California, 90014, Telephone 213-688-5200.