Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Mar 8, 1978

234 N.L.R.B. 1283 (N.L.R.B. 1978)

BORG-WARNER CORPORATION
Tulsa Division, Byron Jackson Pump Division, Borg-
Warner Corporation and Lynn C. Hudson. Case
16-CA-7016
March 8, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE
On October 6, 1977, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and the General Counsel filed a brief in reply
to Respondent's brief in support of its exceptions.
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 considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
We agree with the Administrative Law Judge, for
the reasons stated by him, that Respondent violated
Section 8(a)(3) and (1) of the Act by changing its
early in-early out policy whereby test well techni-
cians working in the standard products and centrilift
laboratories had for many years been allowed to
report to work early without supervision and leave
early when they had a legitimate reason to do so, for
such change was clearly made for union-related
reasons.t Unlike our dissenting colleague, we are not
persuaded that Respondent's change in its policy
resulted from its desire to prevent production "bot-
tlenecks." The only evidence of such bottlenecks is
the unsupported, conclusionary testimony of Re-
spondent's manufacturing manager, Burns.2 We note
that there is no evidence that the technicians were
even told there were complaints concerning their
activities in the production areas, much less that they
would lose their early in-early out benefit should they
In affirming the Administrative Law Judge's finding that Respondent's
change in its early in-early out policy was discriminatorily motivated to
prevent the test well technicians from contacting other employees about
unionization, we do not adopt his factual finding that the technicians were
in fact talking with nonunion expediters and dispatchers about union
activities in the manufacturing area. The record does not substantiate such a
finding and, in fact, credited employee witness Hudson maintained that the
technicians talked to the expediters and dispatchers during their worktime
only about the product line. Nevertheless, the Administrative Law Judge's
conclusion that Respondent violated Sec. 8(aX3) and (I) of the Act by its
policy change is fully supported by the record. Inasmuch as Respondent had
knowledge of the test well technicians' active involvement in the union
campaign, as evidenced, inter alia, by its admission of several illegal
interrogations and threats of reprisal to these employees, we cannot but
234 NLRB No. 189
not discontinue such conversations. Finally, we note
as well a lack of any evidence, indicating that
technicians who came in early were the cause of
alleged bottlenecks, as opposed to those working
during their regularly scheduled shifts when their
supervisor was present.
In short, Respondent's asserted business justifica-
tion for the drastic curtailment of its early in-early
out policy is tenuous at best, and is no answer to the
primafacie case established by the General Counsel.
Inasmuch as Respondent had the burden of going
forward with evidence supporting its defense, once
the General Counsel had established a prima facie
case based on Respondent's overall antiunion con-
duct and its clear attempt to isolate these prounion
activists from other nonunion employees in the plant,
it was incumbent upon Respondent to adduce such
proof. Central Press of California, 210 NLRB 765
(1974); Armcor Industries, Inc., 217 NLRB 358, 364
(1975). We find, in agreement with the Administra-
tive Law Judge, that Respondent did not adequately
sustain that burden and, thus, that the General
Counsel has proved by substantial evidence that
Respondent violated Section 8(a)(3) and (1) of the
Act.
THE REMEDY
With respect to the 8(a)(3) and (1) violation, the
Administrative Law Judge recommended only a
cease-and-desist provision, stating that in the circum-
stances an affirmative remedy for such violation was
unnecessary. The General Counsel excepted to this
failure to recommend that Respondent be ordered to
reestablish the early in-early out policy as it existed
prior to its unlawful termination. We find merit in
this exception.
Where an employer changes a working condition
for discriminatory purposes, as here, the coercive
effect of that change is not likely to be nullified, and
thus adequately remedied, without a restoration of
the status quo ante with respect to that particular
condition. Jays Foods, Inc., 228 NLRB 423 (1977);
Head Ski Division, AMF, Inc., 222 NLRB 161 (1976).
Thus, we find that the chilling effect on the employ-
conclude that its subsequent change in the early in-early out policy was
motivated by a desire to insulate the technicians from other employees and
thereby discourage union activity. Thus, regardless of the actual content of
the conversations of the employees or Respondent's knowledge thereof, we
find that Respondent violated Sec. 8(aX3) and (1) of the Act by curtailing an
existing employment benefit of the technicians because of their union
activities. Consequently, we reach the same result as the Administrative Law
Judge. without relying on his unsupported finding as to the content of the
employees' conversations.
2 Thus, the Administrative Law Judge found that Burns' allegation that
the technicians' conversations caused bottlenecks, and in fact held up
production, was not supported by any records, documents, or buttressing
witnesses.
1283
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees' exercise of their rights guaranteed by Section 7
of the Act will be effectively neutralized only by a
restoration of the early in-early out policy which they
enjoyed prior to their union organizing activities.
Accordingly, we shall order that Respondent rescind
its change in the early in-early out policy, and restore
the longstanding policy of allowing the test well
technicians to report to work early without supervi-
sion and leave early when they have a legitimate
reason to do so. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, Tulsa Division, Byron Jackson Pump Division,
Borg-Warner Corporation, Tulsa, Oklahoma, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order as so
modified:
1. Substitute the following for paragraph l(h):
"(h) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act."
2. Insert the following as paragraph 2(b), and
reletter the subsequent paragraphs accordingly:
"(b) Reinstate the early in-early out practice
existing prior to approximately January 1977, permit-
ting test well technicians working in the standard
products and centrilift laboratories to come in early
without the presence of their immediate supervisor
and leave early when they have a legitimate reason to
do so."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER MURPHY, concurring in part and dissenting
in part:
While I agree that Respondent violated Section
8(a)(1) of the Act, as found by the Administrative
Law Judge, I disagree with the further finding that
Respondent additionally violated Section 8(a)(3) and
(I) of the Act by changing its early in-early out
policy relative to the test well technicians. Respon-
dent herein did not discontinue that policy, but
merely modified it by requiring 100 percent supervi-
sion in the standard products and centrilift laborato-
ries. Indeed, a full review of the facts indicates that
Respondent was fully justified in instituting a policy
of full supervision of these employees.
3 In his recommended Remedy, the Administrative Law Judge also
inadvertently specified interest to be paid at the rate of 7 percent per annum,
citing Florida Steel Corporation, 231 NLRB 651 (1977). However, there the
Board stated that interest will be calculated according to the "adjusted
Thus, the record shows that Respondent's manager
of manufacturing, Burns, was notified in early
November by the manager of the expediters and
dispatchers that the test technicians were frequently
coming into the manufacturing area to talk with
expediters and dispatchers working there. Burns
testified without contradiction that the conversations
between the technicians and these manufacturing
area employees were interfering with the work of the
expediters and dispatchers, two essential production
functions, and causing production "bottlenecks."
Because the technicians were not under Burns'
supervisory jurisdiction, he complained to their
second-level supervisor, Claibourn, requesting that
he keep the test technicians out of the manufacturing
area.
Burns testified that his initial complaint to Clai-
bourn proved futile and that he thereafter went two
additional steps up the supervisory ladder, finally
complaining about early December to Respondent's
vice president, Boyd. As a result of this final
complaint, the technicians' immediate supervisor,
Workman, was instructed by Claibourn to spend 100
percent of his time in the test lab, and that the
technicians were to be supervised 100 percent of the
time. Claibourn further told Workman, when queried
by Workman regarding the issue, that the technicians
could no longer come early and leave early unless
Workman was scheduled to work overtime, since
they were to be supervised 100 percent of the time.
Respondent asserts, and my colleagues on the
majority acknowledge, that Respondent did not even
know what the subjects of these disruptive conversa-
tions were. Furthermore, both Burns and supervisors
of the test technicians above the second-level super-
visory position testified without contradiction that
they had not previously been aware that the test
technicians enjoyed the early in-early out privilege,
which was not an established practice in the plant,
until after the filing of the instant complaint. Thus, it
appears that antiunion motivation is essentially
factually precluded and that Respondent, by its
modification of the existing practice, was merely
exercising its unquestionable managerial prerogative
of assuring that test technicians, like other of its
employees, were supervised at all times they were
working in the plant.
Given the foregoing, it is evident that the General
Counsel has not met his burden of establishing that
Respondent changed its previous practice for dis-
criminatory reasons, rather than for the legitimate
business purpose of maintaining production by
prime rate" used by the U.S. Internal Revenue Service for interest on tax
payments. See, generally, Isis Plumbing d Heating Co., 138 NLRB 716
(1962).
1284
BORG-WARNER CORPORATION
assuring complete supervision of the test well techni-
cians. Accordingly, I would dismiss the complaint
with respect to this alleged violation and, as a
consequence of my position, would not, of course,
order reinstatement of the early in-early out policy as
does the majority.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated the National Labor
Relations Act, as amended, has ordered us to post
this notice. We therefore notify you:
WE WILL NOT interrogate our employees about
union membership or union activities.
WE WILL. NOT create an impression of surveil-
lance of our employees' union activities.
WE WILL NOT threaten employees with reprisals
because of their union activities.
WE WILL NOT order employees to remove union
insignia from their hats.
WE WILL NOT threaten employees with dis-
charge because of their union activities.
WE WILL NOT threaten to observe employees
more closely during breaktime and at all other
times because of their union activities.
WE WILL NOT change the early in-early out
practice of our test well technicians because of
their union activities, and WE WILL reinstate the
early in-early out practice existing prior to ap-
proximately January 1977, whereby test well
technicians working in the standard products and
centrilift laboratories will be allowed to come in
early, even in the absence of their immediate
supervisor, and leave early when they have a
legitimate reason to do so.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your rights guaranteed by Section 7 of the Act.
WE WILL make Vance S. Bates whole for any
pay lost by reason of the discrimination against
him, with interest.
TULSA DIVISION, BYRON
JACKSON PUMP DIVISION,
BORG-WARNER
CORPORATION
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge: This
case was heard at Tulsa, Oklahoma, on May 7, 1977. The
charge was filed by Lynn C. Hudson on February 8, 1977
(amended March 23, 1977), and the complaint was issued
on March 24, 1977. The primary issues are whether Tulsa
Division, Byron Jackson Pump Division, Borg-Warner
Corporation, hereafter called the Company or Respondent,
(a) unlawfully interrogated and threatened employees
during the Union's organizing drive, and (b) discriminato-
rily discontinued its practice of permitting its employees to
report for work early and depart from work early, in
violation of Section 8(aX1) and (3) of the National Labor
Relations Act, as amended.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the oral argument of Respondent and the briefs filed by the
General Counsel and the Company, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a Delaware corporation, is engaged in the
manufacture of pumps at its plant in Tulsa, Oklahoma,
where it annually ships finished products valued in excess
of $50,000 directly to customers located outside the State.
The Company admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Company admits, and I find
that the United Auto Workers (hereafter called UAW) is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Posture of the Case
When Respondent filed its answer to the complaint, it
flatly denied all allegations of unfair labor practices, both
as to Section 8(a)(1) and (3), with one exception. The
exception applied to subparagraph (d) of paragraph 7, to
which Respondent entered an admission with an affirma-
tive defense. Paragraph 7 contained allegations of viola-
tions of Section 8(aX)(1) only. At the commencement of the
hearing, Respondent amended its answer and admitted the
8(a)(1) allegations contained in subparagraphs (a), (b), (c),
and (e) of paragraph 7. The allegations of subparagraph (f)
thereof were not admitted and remained as in the original
status of the answer-denied.
The allegations of paragraphs 8 and 9, which assert that
Respondent discontinued its established practice of permit-
ting its employees to report for work early and leave early
because of their union or concerted activity, thereby
violating Section 8(a)(3) and (1), remained denied. The
1285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire thrust of Respondent's defense, both at the hearing
and in its brief, was against this latter allegation.
B. The Organizing Campaign
In the spring of 1976 Doilis Taylor, one of four test-well
technicians in the centrilift laboratory of Respondent,
started talking about a "Union drive" with other test-well
technicians. Respondent employed five technicians on the
day shift and one on the night shift in two separate
laboratories, centrilift and standard products. In mid-Octo-
ber 1976,1 Vance S. Bates, one of the two test-well
technicians in the standard products laboratory, contacted
an official of the UAW as to securing union representation
for some employees of Respondent. 2
Thereafter, the Union commenced an organizing cam-
paign with meetings being held approximately every 2
weeks up until the latter part of January 1977. Bates,
Taylor, Jim Wyse, a test technician in the standard
products laboratory, and Charging Party Lynn C. Hudson,
a test technician in the centrilift laboratory, participated in
the union organizing drive by, as they testified, handing out
to other employees UAW literature, buttons, bumper
stickers and other insignia, and by personal solicitation.
These employees also wore union insignia on their hard-
hats. Bates was the most active of the technicians in
promoting the Union, securing union authorization cards
from 55 other employees.3
C. Company Response to the Campaign
Stanley C. Claibourn, applications and testing engineer
and the second-level supervisor over the test laboratories,
was serving on jury duty in early November. He dropped
by the plant one day in that period and learned from his
subordinate, Donald Workman, the first-level and immedi-
ate supervisor of the test-well laboratory employees, that
union activities were going on in the plant. On November
11, when Claibourn resumed working at the plant, he
interrogated employees about their union activities-a
violation of the Act-as alleged in paragraph 7(a) of the
complaint and admitted by Respondent in its amendment
to its answer.
As further admitted by Respondent in its amended
answer to paragraph 7(b), on or about November 23 its
Supervisors Eldon Drake, hydraulic consultant, and Jim
Jernigan, the industrial relations manager, told employees
that the Company knew which department originated the
union activities and what the employees were doing,
thereby creating an impression of surveillance of its
employees' union activities-conduct which is plainly
violative of the Act. Also, on the same day, as admitted by
Respondent in its amended answer to paragraph 7(c),
Eldon Drake violated the Act by threatening Respondent's
employees with reprisal and by telling them that they
t All dates are in 1976 unless otherwise stated.
2 The record does not disclose the unit of employees that the technicians
were seeking. In its brief Respondent states that 109 employees voted in a
subsequent election that took place on January 28, 1977. The plant
employed in all approximately 730 employees, of whom 550 were in the
manufacturing department. The shop manufacturing employees were
represented by a union.
needed to be careful because attention was being focused
on them for engaging in union activities.
On the same day, November 23, the first-level laboratory
supervisor, Workman, ordered employees to remove insig-
nia from their hardhats, as alleged in paragraph 7(d) of the
complaint. The next day, Supervisor Bill Dillion, a general
foreman, repeated the same order. Respondent admitted
these allegations in its answer, but pleaded an affirmative
defense by alleging that on or about November 24 "it
rescinded said order." At the hearing, Respondent present-
ed no evidence as to any circumstances of the alleged
rescission. 4
In Fashion Fair, Inc., Sternberger Brothers, Inc., and
Cinbo, Inc., 159 NLRB 1435 (1966), respondents had
contended in their answer that acts admittedly constituting
violations of Section 8(a)(1) were corrected prior to the
filing of the charge and were therefore moot. The Board
found violations despite written efforts by Fashion Fair,
Inc., the employer, to disavow and apologize for the actions
of its supervisor, saying (at 1444):
Unless properly and effectively neutralized, the impact
of coercive action upon employees is not vitiated just
because the illegal acts in question are subsequently
rescinded. Merely making an apology to employees for
the misconduct committed [is] ambiguous and insuffi-
cient, without clearly identifying the wrongdoing, indi-
cating recognition of the employees' organizational
rights, and assuring them against recurrence of the
offenses committed. Moreover, to be effective, a neu-
tralization effort must be adequately publicized sub-
stantially to reach all employees.
Here, there is no evidence that the Company clearly
identified the wrongdoing, or indicated its recognition of
the employees' organizational rights, or assured them
against a recurrence of such an illegal order. Nor is it
shown that the rescission was publicized to reach any
employees, much less substantially all employees. I find,
therefore, that Respondent's alleged rescission was ineffec-
tive, and that Workman's and Dillion's orders to remove
union insignia from employees' hardhats were violations of
Section 8(a)(1).
In addition, Respondent, in its amended answer, admit-
ted that on or about November 30, as set forth in
paragraph 7(e), Wayne Roberts, its supervisor in order
control and centrilift, threatened its employees with dis-
charge if they engaged in union activities-a violation of
the Act.
Subparagraph (f) of paragraph 7 contains the only
Section 8(a)(1) allegations of the complaint that remained
flatly denied by Respondent. It alleges that on or about
November 24, 1976, and January 27, 1977, Supervisor
Workman threatened to observe employees more closely
3 The facts in this section are from the uncontroverted testimony of
Taylor, Bates, Wyse, and Hudson. Respondent did not cross-examine any of
these witnesses following their direct testimony. I found these technicians to
be sincere, intelligent witnesses, and I credit their testimony throughout the
case.
4 Respondent's brief contains no discussion or argument pertaining to
this issue.
1286
BORG-WARNER CORPORATION
during breaktime and at all other times because of their
union activities.
As proof of the November events, General Counsel
offered the testimony of technician Jim Wyse. Wyse
testified that on the afternoon of either November 23 or 24
he was having a conversation with Don Workman, his
immediate supervisor, about "Union activities and person-
al problems" when the following occurred:
Don told me that I may not like what he was going to
tell me, and he asked me not to tell anyone else what he
was about to tell me, and he said that Charlie Cheek 5
had asked him to watch us 100 percent of the time.
Wyse's uncontradicted testimony was that, prior to the
union organizing drive, the technicians received sparse
supervision: "Workman would come through three or four
times a day to explain what he would want done, and that
was the extent that he would supervise us." Hudson
likewise testified without contradiction that Workman
occasionally came into the lab, but that normally he was
not present more than 3 hours in an 8-hour period.
Since Workman's words on November 23 were made in
the context of a conversation with Wyse about union
activities, I find these words to be clearly an implied threat
of harassment because of the test technicians' known union
activity. Wyse had been employed since 1966 and was a
veteran, experienced technician, as were the other techni-
cians. 6 Bates and Hudson had been hired in 1970 and
Taylor in 1971. I find that Workman's statement, coupled
with a discussion on union activity, had an inhibitory effect
on employees in the exercise of their Section 7 rights, and
violates Section 8(a)(1) of the Act.
As factual proof of the January 27, 1977, incident,
General Counsel relies on the uncontradicted testimony of
Hudson, who testified that on January 27, 1977, he was
doing some paperwork in the test lab when "Don Work-
man told me that he was to put in 100 percent of his time in
the test lab, to watch us and supervise us." This statement
by Workman plainly did not contain any reference to
union activity, but also, it was not coupled with any
discussion of the Union. Moreover, Workman's words
were pointed to his own activities; that he, Workman, was
to put 100 percent of his time in the lab. This is a far cry
from his statement of November 24 when he told Wyse
that he was to watch the technicians 100 percent of the
time. As a supervisor who previously had spent only 3 of
his 8 working hours in the labs, it would come as no
surprise to Hudson that Workman had been told by his
superiors to put more time in the labs. I also cannot find
anything unusual by Workman stating that he was to
"watch" the technicians and was to "supervise" them, as
these are basic supervisory duties. I am, therefore, unable
to find that General Counsel has proved by a preponder-
ance of the evidence that Workman's words on January 27,
1977, were violative of the Act and I would dismiss this
allegation of the complaint.
5 Wyse identified Cheek as the president or vice president of Respon-
dent; Cheek did not testify and is not otherwise identified.
6 There is nothing in the record as to any cnticism of the quality or
quantity of the work done by Wyse, Hudson, Bates, or Taylor. Respondent
D. The Change in the Early In-Early Out Policy
On the evening of January 12, 1977, Hudson telephoned
Workman at the supervisor's home and requested that he
be allowed to report early the following day, so that he
might leave early and take his wife to an appointment with
her doctor. The day-shift test technicians, all of whom were
salaried employees, worked a regular shift from 8 a.m. to
4:30 p.m. However, if a technician had a personal reason
for leaving early, such as going to see a doctor or a lawyer,
he could request permission from Workman or Claibourn
to come in early and leave early, and such permission
would be routinely given. This was a longstanding practice
in the laboratories, as Claibourn freely admitted that from
the time he took over supervising the labs in 1966, if an
employee had a "legitimate" reason, "they could come to
work early and leave early."
However, on this call of January 12, Hudson testified
without contradiction that Workman denied his request
and told him that the policy was no longer allowed. When
Hudson asked Workman why, "he just stuttered and said
he [had] better not say. And I asked him was it because of
the UAW drive, and he again said he [had] better not say."
On the next day, Technicians Bates, Wyse, Hudson,
Duane Hale, and Taylor were together in the lab. Taylor
testified that Workman came down to the lab "and told us
that the policy [early in-early out] had been changed, that
we couldn't do it anymore." When asked by General
Counsel if Workman gave any reason, Taylor responded
that Workman said "that it was against the law, more or
less." Workman, who was still employed by Respondent at
the time of the hearing, did not testify, and no explanation
was offered as to why he did not testify.
Bates testified that on the same day Workman notified
him that no one would be allowed to come in early without
a supervisor being present at the same time. Bates had been
taking his asthmatic son to the doctor since the spring of
1976, and utilized the early in-early out practice by coming
in at 7 a.m. and leaving at 3:30 p.m., an hour ahead of his
regular quitting time. Following Workman's statement of
the change in policy, Bates had two occasions to take his
son to the doctor, which he did by coming in at the regular
time and leaving an hour early, thereby losing an hour each
day.
i. The company's business necessity defense
The Company's manager of manufacturing for the past 3
years, Pat Burns, testified that he had top responsibility for
all operations in the manufacturing department. Under his
ultimate supervision were 550 employees with regular
working hours of 7 a.m. to 3:30 p.m. As the manager, he
spent approximately 40 percent of his time in the manufac-
turing area of the plant, which covered an area of 300,000
square feet in a single-floor building.
The test technicians were not under Burns' jurisdiction,
but were part of the engineering department which was
headed by Vice President Clint Boyd, whose supervisors in
does assert as a defense a business reason for ordering that the test
technicians be supervised 100 percent of the time-a defense which will be
discussed at length below, and a defense which I reject.
1287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
descending order consisted of Eldon Drake, Stanley Clai-
bourn, and Don Workman. An engineering sketch of the
plant layout (Resp. Exh. I) showed that the standard
products test laboratory was located in the front right-hand
side of the building, and that the centrilift test laboratory
was at the rear right-hand side next to the shipping
department.
Burns testified that in early November it was brought to
his attention by the manager of the expediters and
dispatchers that test technicians were out of their work
areas, coming in the manufacturing area, engaging in
conversations with expediters and dispatchers and interfer-
ing with their ability to do their work. There were three
expediters and two dispatchers, whose duties were to see
that the 6000 parts processed at the plant were directed
from one production employee's work station to another,
so that no employee would run out of work.
After having the situation called to his attention, Burns
testified that he personally and frequently observed Bates,
Hudson, Wyse, and Taylor out in the manufacturing area
talking to and having conversations with employees,
particularly expediters and dispatchers, during these manu-
facturing department employees' regular worktime. 7 Burns
testified that he did not hear or know what the conversa-
tions were about. But he did know that they caused
"bottlenecks," and held up production. He further testified
that the test technicians had no legitimate business reason
to be on the manufacturing floor, as their job function did
not require them to go out into the manufacturing area.8
Burns then contacted Claibourn, the second-level super-
visor of the test technicians, and requested that he keep his
people out of the manufacturing area and back in their
own work area, as they were interfering with production.
According to Burns, the condition did not improve, and in
late November he went to Drake, Claibourn's boss, and
complained to him. While there was a temporary letup in
the conversations, the conversations soon picked up again.
This time, Burns went to Clint Boyd, a vice president and
the head of the engineering department, and told him to
keep the technicians out of the manufacturing area, and
keep them back in their own test areas. Burns thereafter
noted that the condition changed, and he had no more
complaints.
Burns testified that he had no knowledge that the
Company had any policy of permitting any of its employ-
ees to report to work early and leave early, and only
learned of the test technicians doing it after the complaint
had been filed. He further testified that he had not directed
anyone to discontinue the practice.
Vice President Boyd testified that in late November or
early December Burns came to him and told him that the
technicians were spending an unusual amount of time out
of their work area, and were interfering with the work of
the expediters and dispatchers. Boyd then summoned
Claibourn and Drake to his office, repeated Burns' com-
plaint to them, and testified as follows:
7 While the expediters and dispatchers were part of the manulacturing
division, they were nonunion, and not in the bargaining unit of the
organized manufacturing and production employees.
K Burns admitted on cross-examination that the technicians could use a
restroom in the manufacturing area, as well as coffee and coke machines in
And I asked them at that time to have Don Workman
to make sure that he stayed down on the floor 100/o of
the time, which was his work station, and see that these
people stayed in their area and performed the duties
that they were being paid to do, except for the normal
breaks that they were entitled to.
Boyd further testified that the Company had no policy
that he knew of that permitted any employee to come in
early and leave early, and that he only learned of the
practice by the technicians after the complaint was filed.
He denied that he had at any time directed Claibourn or
anyone else to discontinue or monitor this practice, as he
simply did not know about it.
The testimony of Supervisor Claibourn corroborated the
testimony of Burns and Boyd. In mid-November, after
Burns had complained to him, he had told Workman to
stay on the floor and keep the technicians in their area and
keep them working. In December, when summoned to
Boyd's office, he was severely reprimanded for loose
supervision because the test technicians were "still roaming
around the manufacturing area talking to the dispatchers
and expediters." Boyd then told Claibourn to spend 100
percent of his time in the test lab supervising the techni-
cians. Claibourn called Workman, informed him that he
had just gotten a very bad chewing out, and "I told him
that he was to spend 100 percent of his time in the test lab,
and that the technicians were to be supervised 100 percent
of the time."
Claibourn testified that in late December Workman
came to him and asked him what he should do if
technicians came to him and asked to come in early and
leave early:
And I told him that if he was scheduled for overtime
that the technicians in question could come in, but if he
was not scheduled for overtime, Don Workman was
not scheduled for overtime, then the technicians could
not come in since the technicians had to be supervised
100 percent of the time.
The testimony of Bates, Taylor, and Hudson places the
date of Workman's advising them of this change in policy
as January 12 or 13, 1977, following Hudson's nighttime
call to Workman's home, in which he requested permission
to come in early and leave early on the following day.
2. Rebuttal by General Counsel
Hudson, when called back to the stand, testified that
occasionally dispatchers would contact centrilift test-lab
employees about emergency equipment shipments which
were supposed to leave the plant that day. The technicians
would report back to the dispatchers as to which pumps
passed inspection and which ones were rejected. He also
stated as a general proposition that the standard products
test-lab technicians would occasionally "have reason" to
go out and talk with expediters, although he stated no
the same area. However, it is contended that the area in which these
facilities were located was but a small part of the manufacturing area and, in
any event, was not where he saw technicians talking to expediters and
dispatchers.
1288
BORG-WARNER CORPORATION
reason therefor. On cross-examination he admitted that the
requirement for test-lab technicians to talk to expediters
was about the same prior to November I as it was after
November 1. He maintained that the technicians talked to
the expediters and dispatchers during their work time only
about the production line.
Analysis and Conclusions
It is not disputed by Respondent that there was a long-
standing policy in the two test laboratories that permitted
test technicians, when they had a legitimate reason, to
come in early in the morning before their regular time and
leave early that afternoon without the requirement that a
supervisor be present prior to 8 a.m., the department's
normal startup time. The record is clear that this policy was
not flatly discontinued by an express order. However, the
policy was changed as the result of a company order that
the technicians could only come in early if a supervisor was
scheduled to be present at the same time. There is nothing
in the record to show that supervisors were ever scheduled
to come in early, so that, in effect, the benefits of the policy
were greatly diminished, if not emasculated, by this
company requirement established after the commencement
of the union organizing campaign.
The question to be answered is: Was this curtailment of
an existing benefit because of the technicians' union or
concerted activities or was it simply made to assure that the
Company had supervisors present at all times that the
technicians were working as contended by Respondent? I
find, for the reasons stated herein, that the early in-early
out policy was curtailed because of the technicians' union
activity.
Burns, the manager of manufacturing, admitted that, at
the time he became concerned about the technicians'
conversations in the manufacturing area, he already knew
about the union organizing campaign. However, when
asked on cross-examination if he had any idea what was
being discussed in these conversations, he replied: "I am
sure from the standpoint - there are a lot of things that
could have been discussed, but I have no idea." While
Burns was an articulate witness and in most instances
straightforward, at this point he was evasive, and I do not
accept his lack of knowledge of the contents of the
conversations between the technicians and the expediters.
Nor do I accept his negative reply immediately thereafter
to General Counsel's question as to was not his concern
about the union organizing campaign one of the reasons
that he tried to put an end to these conversations.
The inherent plausibilities of the situation militate totally
against Burns' testimony on the union issue. Shortly after
the second-level supervisor, Claibourn, returned from jury
duty, November I I, Burns went to him and requested him
to keep the technicians out of the manufacturing area.
When the manager saw no improvement in the area on
November 23 as he admitted on cross-examination, he
went to Eldon Drake, the next highest level of supervision,
for relief. Drake did not testify, but the evidence by way of
9 It cannot be overlooked that on the same day, November 23, the
Company's manager of industrial relations, Jernigan. also admittedly
created an impression of surveillance by making the same remarks to
employees.
admissions conclusively shows that Drake took immediate
and harsh actions against the technicians by engaging in
several unfair labor practices. He told the employees that
the Company knew which department originated union
activities at the plant and what the employees were doing
about it (subpar. 7(b) of complaint); 9 and he threatened
them with reprisals by telling them that attention was being
focused on them because of their union activities (subpar.
7(c) of complaint).
Burns was still not satisfied, and in early December he
went to the highest supervisory level of the technicians,
Clint Boyd. Boyd then issued his order to Claibourn to
have the lowest level supervisor, Workman, stay on the
floor 100 percent of the time and see that the technicians
stayed in their area.
Burns' allegation that the technicians' conversations
caused bottlenecks and in fact held up production was not
supported by any records, documents, or witnesses. It is
readily apparent that a big, modern plant such as Respon-
dent's would have voluminous records to back up its
production runs, high or low. It is also noteworthy that
throughout this period, even up to the holding of the
election on January 28, 1977, no warnings, oral or written,
were given to these technicians about their alleged trans-
gressions. Not only were they not given warnings, but they
were never told by anyone o that they were spending too
much time in the manufacturing area, or that they were
talking too much with the expediters and dispatchers. It is
fundamental in the field of plant industrial relations that
warnings are meted out to employees for infractions of a
company's rules or policies, yet the technicians were never
even informed of the actions which Burns considered to be
holding up production. Arvin Industries, Inc., 226 NLRB
925 (1976).
In ascertaining Respondent's real motive for drastically
curtailing its policy of early in - early out, the statements of
Don Workman are most revealing and damaging to
Respondent's cause. On the evening of January 12, 1977.
Hudson, a credible witness, had telephoned Workman for
permission to come in early the next morning only to be
turned down because of the new policy. When Hudson
asked why, Workman stuttered and added that he had
better not say. When Hudson pressed the point and asked
him specifically was it because of the UAW drive, his
foreman again said he had better not say. The next day,
when Hudson talked with Workman at the plant about the
policy change, Workman again dodged Hudson's plain
question about the UAW drive and again answered that he
had better not say. The inference is reasonable that
Workman knew that the policy had been changed because
of the union organizing drive, and I draw that inference. To
the same effect was Workman's reason given to the
technicians around January 12, 1977, after he told them
that the policy had been changed. Workman's stated
reason to Taylor for the change in policy, "because it was
against the law, more or less," given at the January 12,
1977, meeting with the technicians, does not ring true, and
i' The record sets forth six supervisory employees in the engineering
department: Workman, Claibourn. Dillion, Roberts. Drake, and Boyd: one
in manufacturing, Burns: and one as the manager of industnal relations of
the entire plant, Jernigan - an impressive array of supervisors.
1289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I regard it as an evasive answer made to avoid the true
reason. The failure of Respondent to call Workman as a
witness without any explanation gives rise to the inference,
adverse to Respondent, that he would not contradict the
testimony of Hudson and Taylor. Martin Luther King, Sr.,
Nursing Center, 231 NLRB 15 (1977); International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (UA W) [Gyrodyne Company of Ameri-
ca, Inc.] v. N.L.R.B., 459 F.2d 1329, 1336 (C.A.D.C., 1972).
In its brief Respondent states that Stanley Claibourn is
the central figure "in this confrontation between the
employer's right to manage his business, and the employ-
ees' countervailing right to engage in protected union
activity without reprisal." Claibourn was certainly a central
figure, who on his first day of return ,o work from jury duty
violated the Act by interrogating employees about union
activities. While Claibourn testified that he did not know
what the technicians' conversations were about on the
manufacturing floor and that he did not receive any reports
about their contents, I do not credit his testimony.
Claibourn impressed me as a very loyal, up-from-the-ranks
supervisor, bent on giving testimony that would solely aid
his Employer's cause. I am convinced that Claibourn knew
that the technicians were the moving, active proponents of
the Union, and that the technicians were talking to the
nonunion expediters and dispatchers about union activities
in the manufacturing area.
It was Claibourn who gave instructions in mid-Novem-
ber to Workman that caused Workman to violate the Act
by threatening that Respondent would observe its employ-
ees during breaktime and at all other times because of their
union activities. It was Claibourn who enlarged Boyd's
instructions and took it upon himself to tell Workman that
the technicians were to be supervised 100 percent of the
time. It was Claibourn who, when asked by Workman what
he should do with the technician's request that he be
permitted to come in early and leave early, changed the
longstanding policy and instructed Workman that the
technicians could only come in early if Workman was
scheduled to come in early.
I do not find that Burns or Boyd directed that the early
in - early out policy be changed, but I do find that
Claibourn effectuated the change, and, as an agent of the
Company, the Company is bound by his act. The record is
clear that Respondent was strongly antiunion, which, of
course, is not an unfair labor practice; but, in carrying out
its antiunion campaign, it set about to restrict the techni-
cians from engaging in union activity. One of its tools was
to have its supervisor, Workman, observe the technicians'
movements at all times. As a consequence of this policy,
the technicians lost their right to come in early unsuper-
vised. The loss of this right to come in early without a
supervisor present was a byproduct of Respondent's
antiunion activity.
I find on the basis of the entire record, especially
including the very persuasive picture of union animus
demonstrated by Respondent towards the union's then
current organizing campaign, Respondent's knowledge of
the technicians' union leadership, the evasive reason
advanced for changing the policy, and the fact that the
technicians were never warned or told of any improper
conduct, that but for the technicians' union activities the
early in - early out policy would not have been changed.
Accordingly, I find that Respondent discriminated against
the technicians by changing the early in - early out policy,
by requiring that a supervisor be present in the laboratory
with the technicians prior to the regular startup time, in
order to discourage membership in the Union and thereby
violated Section 8(aX3) of the Act; and that by such
conduct Respondent also interfered with, restrained, and
coerced its employees in the exercise of their organizational
rights guaranteed in Section 7 of the Act and thereby
violated Section 8(a)(1) of the Act. Medley Distilling
Company, Inc., 187 NLRB 84 (1970).
CONCLUSIONS OF LAW
I. The Company 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 mean-
ing of Section 2(5) of the Act.
3. By interrogating employees about their union mem-
bership, activities, and desires; by creating an impression
of surveillance of its employees' union activities; by
threatening employees with reprisals because of their union
activity; by ordering employees to remove union insignia
from hardhats; by threatening employees with discharge
because of their union activity; and by threatening on or
about November 24 to observe employees more closely
during breaktime and at all other times because of their
union activities, the Company violated Section 8(a)(1) of
the Act.
4. By changing the early in-early out policy of the test-
well technicians who worked in the standard products
laboratory and the centrilift laboratory, so as to effectively
deny them the right to come in early when they had a
legitimate reason to do so, by requiring that a supervisor be
present during that early period, because of their union
activities, the Company engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
5. By denying Vance S. Bates the right to come in early
on two occasions because of his support of the Union,
thereby causing him to lose wages, the Company engaged
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
6. The Company did not violate the Act by threatening
employees on January 27, 1977.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Respon-
dent to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Respondent having discriminatorily caused Vance S.
Bates to lose time and wages because of its change in policy
on its early in - early out practice, I find it necessary to
order Respondent to pay him the back wages due, with the
backpay computed on a quarterly basis, plus interest at 7
percent per annum as prescribed in F. W. Woolworth
1290
BORG-WARNER CORPORATION
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977). 1
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 12
The Respondent, Tulsa Division, Byron Jackson Pump
Division, Borg-Warner Corporation, Tulsa, Oklahoma, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union member-
ship, activities, and desires.
(b) Creating an impression of surveillance of employees'
union activities.
(c) Threatening employees with reprisals because they
were engaging in union activities.
(d) Ordering employees to remove union insignias from
their hardhats.
(e) Threatening employees with discharge for engaging in
union activities.
(f) Threatening employees with closer supervision during
breaktime and at all other times because of their union
membership, activities, and desires.
(g) Changing its practice theretofore allowed its test-well
technicians of early in-early out without early supervision
because of their union and concerted activities.
(h) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
II No affirmative provision is recommended for the rescission by
Respondent of its change in the early in -early out practice found violative
of Sec. 8(aX3) and (I). Such change was found to have violated Sec. 8(aX3)
and (1) not because it was inherently unlawful, or even unreasonable, but
because it was effected in a coercive context for an unlawful purpose. It is
believed that this violation is adequately remedied by the cease-and-desist
provisions in the recommended Order. Cf White Sulphur Springs Company
d/b/a Greenbrier Hotel. 216 NLRB 721 (1975).
12 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,
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Vance S. Bates whole for his lost earnings in
the manner set forth in the section of this Decision entitled
"Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant in Tulsa, Oklahoma, copies of the
attached notice marked "Appendix."13 Copies of the
notice, on forms provided by the Regional Director for
Region 16, 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 custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
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.
13 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1291