Borg Warner Corporation

National Labor Relations Board - Board Decisions

Sep 27, 1979

245 N.L.R.B. 513 (N.L.R.B. 1979)

BORG WARNER CORPORATION
Borg Warner Corporation; Baker Industries, Inc;
Wells Fargo Armored Service Corporation; Pony
Express Courier Corporation and International
Union, United Plant Guard Workers of America,
Local 102 and Local 106. Cases 26 CA-7268 and
26-CA 7469
September 27, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDAL.E
On May 7, 1979, Administrative Law Judge Robert
Cohn issued the attached Decision in this proceeding.
Thereafter, the General Counsel and Respondent
filed exceptions and supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Borg Warner Corporation;
Baker Industries, Inc.; Wells Fargo Armored Service
Corporation; Pony Express Courier Corporation,
Nashville and Knoxville, Tennessee, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the Ad-
ministrative Law Judge.
I We have modified the Administrative Law Judge's notice to conform
with his recommended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present their evidence, the National Labor Re-
lations Board has found that we violated the law and
has ordered us to post this notice.
WE WILL NOT refuse to bargain collectively in
good faith with International Union, United
Plant Guard Workers of America, Local 102 and
Local 106, as the exclusive representative for
purposes of collective bargaining for our employ-
ees at our Knoxville and Nashville locations, re-
spectively, concerning the effects of the transfer
of courier operations from Wells Fargo Armored
Service Corporation to Pony Express Courier
Corporation at the respective locations.
WE WILL NOT discourage membership in the
Union by terminating the employment of any of
our employees discriminatorily, and by there-
after failing and refusing to reinstate them, or by
discriminating in any other manner in regard to
their hire and tenure of employment or any term
or condition of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them in the Na-
tional Labor Relations Act, as amended.
WE WILL continue to recognize and, upon re-
quest, bargain collectively with the above-named
Union as the exclusive representative of our em-
ployees in the appropriate units described below.
The units shall now and henceforth be construed
to encompass the facilities of Wells Fargo Ar-
mored Service Corporation and Pony Express
Courier Corporation in Nashville and Knoxville,
Tennessee, respectively:
All regular guard employees, being driver
guards, messenger guards, and guards, em-
ployed by the Company at its Nashville, Ten-
nessee, operations, excluding all other employ-
ees, office employees and supervisors as
defined in the Act.
All full-time and regular part-time messenger
guards, driver guards and guards employed by
the Company at its Knoxville, Tennessee, fa-
cilities, excluding all other employees, all office
clerical employees, professional employees
and supervisors as defined in the Act.
WE WILL, upon request, bargain collectively
with the Union as the exclusive representative of
our employees in the above-described appropri-
ate units, concerning the effects on the employ-
ees of the transfer of operations from Wells Far-
go Armored Service Corporation to Pony
Express Courier Corporation at the Nashville
and Knoxville locations.
WE WILL offer the employees named below,
who were terminated as a result of our unlawful
action, immediate and full reinstatement to their
former or substantially equivalent positions (to
the extent we have not already done so), at either
245 NLRB No. 73
513
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of our Nashville, Tennessee, locations, without
prejudice to their seniority or other rights and
privileges, dismissing, if necessary, any persons
hired to replace them and WE WILL make them
whole for any loss of pay suffered as a result of
their termination, including interest.
Danny Mercer
Rick Billings
Benny King
David Thompson
Lonnie Bennett
Rupert Jenkins
BORG WARNER CORPORATION; BAKER IN-
DUSTRIES, INC.; WELLS FARGO ARMORED
SERVICE CORPORATION; PONY EXPRESS
COURIER CORPORATION
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This consoli-
dated proceeding, heard before me in Nashville, Tennessee.
on November 15 and 16, 1978,' involves a complaint of the
General Counsel against Borg Warner Corporation (herein
Borg Warner), Baker Industries, Inc. (herein Baker), Wells
Fargo Armored Service Corporation (herein Wells Fargo),
and Pony Express Courier Corporation (herein Pony Ex-
press), based on original charges filed June 29 by Interna-
tional Union, United Plant Guard Workers of America, Lo-
cal 102 and Local 106 (herein the Union) in Case 26-CA
7268, and on July 31 in Case 26-CA-7469 (formerly 10
CA-13872). The order consolidating cases, consolidated
complaint, and notice of hearing issued November 2, and
the answer of Respondent' was duly filed on November 7.
The principal issues in the case are: (1) Whether the four
above-named corporations constitute a single employer
within the meaning of the National Labor Relations Act, as
amended (herein the Act), and whether Wells Fargo and
Pony Express are alter egos; (2) Whether Respondent vio-
lated Section 8(aX5) and (1) of the Act by deciding unilater-
ally, and without notifying or bargaining with the Union, to
discontinue the assignment of courier work to employees
represented by the Union; (3) whether Respondent violated
Section 8(aX5) and (1) of the Act by failing and refusing to
bargain in good faith with the Union concerning the effects
on employees of its decision to transfer courier work from
employees at Wells Fargo to employees at Pony Express, at
Respondent's Nashville and Knoxville operations; and (4)
whether Respondent violated Section 8(a)(3) and (I) of the
Act by laying off five employees and constructively dis-
charging another as a consequence of the transfer of courier
work dscribed in (3) above.
Subsequent to the hearing, counsel for all parties filed
post-hearing briefs, which have been duly considered.
Upon the entire record, including arguments of counsel
and my observation of the demeanor of the witnesses, I
make the following:
I All dates hereinafter refer to the calendar year 1978, unless otherwise
indicated.
2 The four above-named corporations will hereinafter be referred to collec-
tively as Respondent.
FINDINGS AND CON( LLSIONS'
I. IHE ALLEGED UNFAIR LABOR PRA(TI(S
A. Background
For some period of time prior to the events giving rise to
the issues in this case, Wells Fargo was engaged in the cities
of Knoxville and Nashville. Tennessee, in the providing of
armored car and courier services for its customers (which
were comprised primarily of banking institutions). The rec-
ord reflects that although there was some interchange of
work among the employees of the Company (who were
classified as messenger/driver/guard, driver/guard, guard.
and part-time employee) because of absences, illness. etc..
the day-to-day assignment of work of the employees was
divided into two principal categories: (1) courier and (2)
armored car. As described by the vice president of person-
nel for Wells Fargo, Timothy W. Hughes, the armored ser-
vice involves the operation of a bullet resistant, armored
truck which is heavy and carries materials which are, in and
of themselves, intrinsically valuable. This would, of course.
include currency, coins, and negotiable instruments. The
employees are armed and are charged predominantly with
the protection and safe delivery of the goods. On the other
hand, the courier work involves the delivery of small pack-
ages of nonnegotiable instruments, such as records of bank
transfers, which are not, in and of themselves, intrinsically
valuable, and does not require the use of the heavy-duty
truck. Rather, the courier service is performed in lighter
weight vans. While the essence of the armored car service is
protection of the valuables, the essence of the courier ser-
vice is time-critical delivery.
On May 5, 1972, the Union (Local 106) was certified by
the National Labor Relations Board as the exclusive bar-
gaining representative of the employees of Wells Fargo in
Nashville in the following appropriate unit:
All regular guard employees, being driver guards, mes-
senger guards, and guards, employed by the Company
at its Nashville, Tennessee, operation, excluding all
other employees, office clerical employees and supervi-
sors as defined in the Act.
Since the issuance of the aforesaid certification, the Com-
pany and the Union have entered into a series of collective-
bargaining agreements including a collective-bargaining
agreement which, by its terms, was effective from July 1,
1975. to July 1, 1978.'
With respect to the Knoxville operation of Wells Fargo,
the National Labor Relations Board issued a certification of
representatives in Case 10-RC-11054 certifying the Union
(Local 102) as the exclusive bargaining representative of the
employees in the following appropriate unit:
' There is no issue in this case respecting the jurisdiction of the National
Labor Relations Board. The complaint in this case alleges sufficient facts
concerning the interstate operations of Respondent, which are admitted in
the answer of Respondent, upon which I may, and do hereby. find that the
four corporations named above are employers engaged in commerce within
the meaning of the Act. It is also alleged and admitted that the Union is a
labor organization within the meaning of Sec 2(5) of the Act.
4 The last collective-bargaining agreement was entered into effective July
I. 1978. until July 1, 1981
514
BORG WARNER CORPORATION
All full-time and regular part-time messenger guards.
driver guards and guards employed by the Company at
its Knoxville, Tennessee, facility, excluding all other
employees, all office clerical employees, professional
employees and supervisors as defined in the Act.
Following the issuance of the aforesaid certification, the
Company and the Union entered into a collective-bargain-
ing agreement, which, by its terms, is effective from October
3, 1977, to October 3, 1980.
The issues in this case arise from the decision of Respon-
dent, arrived at in January 1978, to divest Wells Fargo of
the courier service described above in Knoxville and Nash-
ville, and to relocate and continue that service under the
aegis and control of Pony Express at those locations, re-
spectively. Such divestiture and change of operations oc-
curred in Nashville on April I and in Knoxville on May I.
It appears that, as respects the Knoxville facility, no em-
ployees were laid off or terminated by Wells Fargo in con-
nection with the change of operations, due primarily to the
fortuitous voluntary quitting of some employees at that op-
eration a short time prior to May I. However, there were
five employees laid off in Nashville by Wells Fargo on or
about March 31. and the legality of such layoffs are at issue
in this proceeding.
We come now to an examination of the evidence respect-
ing the relationship of the four above-named corporations
comprising Respondent in the instant case.
B. The Single Employer and Alt her Ego Issue
Borg Warner has been, since on or about January 9, the
parent Corporation, owning approximately 97 percent of
the outstanding voting stock of Baker, whose principal
place of business is in Parsippany, New Jersey. Both Wells
Fargo and Pony Express are wholly owned subsidiaries of
Baker. Indeed, the decision to incoprorate Pony Express in
1975 was one made by "Baker Industries and the officers of
Wells Fargo and the now officers of Pony Express."' It is a
reasonable inference that a principal purpose of the estab-
lishment of Pony Express was to take over the courier op-
erations of Wells Fargo, since this was done at several loca-
tions of Wells Fargo in States other than Tennessee prior to
1978.
The record reflects that, aside from stock ownership,
there is other evidence of affiliation and common ownership
and direction among the several Corporations. Thus, it ap-
pears from the annual reports filed by Wells Fargo and
Pony Express with the State of Tennessee, that Wells Fargo
has its principal office and place of business in Parsippany.
New Jersey, and that the president of Wells Fargo is one
T. W. Jones, who is also the president of Pony Express,
W. L. Cole, L. M. Polisar, and J. A. Meer are vice pres-
ident, secretary, and treasurer, respectively, of Wells Fargo
and of Pony Express. The said L. M. Polisar and T. W.
Jones are also members of the board of directors of the two
Corporations, as well as one M. F. Baker.
The evidence further reflects that Wells Fargo and Pony
Express maintain a common office at 6165 Barfield Road.
NE., in Atlanta, Georgia, and maintain a common post
I Testimony of Bennett. an officer of Pony Express.
office box there. Common officers of Wells Fargo and Pony
Express, who maintain their offices in Atlanta, are Pres-
ident T. W. Jones and Vice President W. L. Cole.
Timothy W. Hughes is vice president of personnel of
Wells Fargo, reporting directly to the president of the Com-
pany. T. W. Jones. Hughes testified that he assists and ren-
ders advice in areas of labor relations and recruitment to
the operating officers of Wells Fargo. Hughes ack-
nowledged that while he was not an officer of Pony Express,
if a labor relations problem arose involving that Company
which came to the attention of T. W. Jones. Hughes would
perform the same labor relations functions with respect to
Pony Express as he does on behalf of Wells Fargo. Indeed,
the record reflects that Hughes responded as an official of
Pony Express to an inquiry of counsel for the Union on the
letterhead of that corporation
Moreover, I note. as additional evidence on the single
employer issue, documentary materials in the record7 which
reflect that, following the transfer of operations from Wells
Fargo to Pony Express, hereinafter described, the two Com-
panies maintained a common lockbox and post office box in
Memphis, Tennessee, to enable customers of either to trans-
mit payments at the common location, and that "accept-
able payees" included both companies.' Such instructions
emanated from an official of Baker in Parsippany. New
Jersey.
The record further reflects that, following the transfer of
the courier operations. the nature and function of such op-
erations remained the same: that such operations were car-
ried on with substantially the same type of equipment-
indeed, Pony Express utilized the same vans as Wells Far-
go, repainting the outside of vehicles to reflect the name of
the new owner. The parties stipulated that the sale and
purchase of the equipment from Wells Fargo to Pony Ex-
press was only a paper transaction.
Finally, the record shows some sales and/or managerial
employees of Wells Fargo were employed by Pony Express
following the transfer of operations and that the customers
of Pony Express remained substantially the same.
Based upon the foregoing indicia of common ownership,
management. and control of the above-named corpora-
tions, and noting that common direction and control of la-
bor relations policies of Wells Fargo and Pony Express are
vested in the same persons, I am convinced, and therefore
find, that the Corporations constitute a single employer for
purposes of this proceeding9 and that Pony Express is the
alter ego of Wells Fargo.' °
C. Events Leading to the Change in Operations
The record reflects that for a period of time prior to the
events in this case Respondent had determined, for appar-
ently economic reasons, to separate the armored car and
6 See G.C. Exh. 5.
eG.C. Exhs. 12 and 13.
t See. G.C. Exh. 13(a).
4 See Radio Union v. Broadcast Service of Mobile, Inc.. 380 U.S. 255
(1965): Royal Typewriter Co. v. N.L.R.B., 533 F.2d 1030 (8th Cir. 1976).
1' See, e.g., Crawford Door Sales Company Inc., 226 NLRB 1144 (1976);
Marquis Printing Corporation and Mutual Lithograph Company, 213 NLRB
394 (1974): Nelson Electric, Gary C Nelson. Inc., and Gaory C Nelson Elec-
tric, 241 NLRB 545 (1979).
515
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
courier functions of the Wells Fargo operations." Pete Ben-
nett, presently an assistant vice president of Pony Express,
testified that the decision was made by top management in
the calendar year 1975 "to break the courier work out and
form a separate courier company specializing in time criti-
cal delivery of non-negotiable type items." Pursuant to such
decision, Pony Express was incorporated in that year, and
the Company commenced separating the courier function
from the armored car function at Wells Fargo locations in
several States of the United States, beginning in Florida
and continuing in Alabama, Louisiana, and others. Rod
Proto, vice president and general manager of the Memphis
region of Wells Fargo (which included the Nashville and
Knoxville operations) testified that he made the decision in
January 1978 to get out of the courier business at those
locations and transfer the same to Pony Express. After no-
tifying his superiors in the Company (which included T. W.
Jones, president of both Wells Fargo and Pony Express) of
such decision, Proto, on January 30, wrote Timothy
Hughes, vice president of personnel for Wells Fargo, advis-
ing him of the contemplated transfer and requesting
Hughes to notify the Union concerning it. However, it was
not until almost 2 months later, on March 20, that Hughes
telephoned the vice president of the International Union in
Detroit, a Mr. Applin, concerning the matter." Hughes tes-
tified that he told Applin that he wished to meet with him
to discuss a matter of some urgency but did not mention the
nature of the subject matter or, indeed, the fact that the
Wells Fargo operations in Nashville and Knoxville were
involved. Applin told Hughes that he (Applin) was about to
go into the hospital and referred Hughes to a Mr. Jack
Russell, a regional director of the International Union who
also served as assistant to the president of the Union."
Hughes thereafter contacted Russell by telephone, appar-
ently the same day, to seek a meeting. A meeting was ar-
ranged for March 30 at the International headquarters in
Detroit, Michigan.' 4
On March 30 Hughes, along with a Mr. Pete Jenson, an
assistant vice president and operating manager of Wells
Fargo's Nashville and Knoxville operations, met with Rus-
' Indeed, it would seem, as previously noted, that Pony Express was in-
corporated in 1975 to fulfill that purpose.
12 Proto testified that in February he had talked to Applin concerning the
louS of a contract with the Federal Reserve Bank in Nashville, which would
result in a layoff of some employees, the extent of which he was unable to
ascertain at that time. Proto did not, however, advise Applin of the contem-
plated transfer of the courier business to Pony Express.
'1 Russell testified that Region 10 covered most of the southern States of
the United States and that he had negotiated contracts covering terms and
conditions of employment for employees at Wells Fargo at the Nasvhille and
Knoxville facilities.
14 There is a variance of the testimony between Hughes and Russell re-
specting the question of why the meeting was scheduled on March 30 rather
than sooner. Hughes testified that Russell told him that March 30 was the
soonest date he could meet because of involvement in other matters. Russell
testified that Hughes never used the word "urgent" in his telephone conver-
sation and denied that he told Hughes that he would be unable to meet with
him sooner than March 30. Rather, according to Russell's testimony, Hughes
suggested the March 30 date because Hughes stated it would be convenient
for him (Hughes) to stop by Detroit in connection with a trip Hughes had
scheduled for New York. Considering the probabilities of the situation, in-
cluding Respondent's general lack of alacrity in notifying the Union of this
important change in operations, along with demeanor considerations, I
credit Russell.
sell in Detroit. At that meeting Hughes advised Russell for
the first time of Respondent's intention of transferring the
courier operation to "a sister corporation of Wells Fargo
also owned by Baker Industries called Pony Express." 5
Russell testified that Hughes indicated that there would be
some employees laid off in Nashville and Knoxville. to
which Russell responded that there was not much the
Union could do about it so long as no one else performed
the work.
Immediately following the meeting on March 30. Russell
turned the matter over to the Union's counsel, who, on
March 31, dispatched the following letter to Hughes:
Mr. Jack Russell has asked me to write you concern-
ing the partial closing of Wells Fargo courier opera-
tions at Nashville and Knoxville. I am advised that five
employees will be laid off at Nashville on April 1 and
that three employees will be laid off at Knoxville on
May I.
For present purposes the UPGWA will assume that
the partial closings are for sound economic reasons
and that layoffs will be in accordance with contractual
seniority provisions. The Company does, however,
have a duty to bargain with the Union regarding the
effects of its decision. To that end, I request your con-
sideration of the following proposal.
The Union requests that the Company provide it
with a letter or memorandum of understanding con-
taining the following points:
I. That laid off employees will remain eligible for
recall to the Company's operations in accordance
with the applicable contract provisions. The partial
closings have not terminated the seniority rights of
the affected employees.
2. That in the event the Company, its parent
Company, or any subsidary (sic) or directly con-
trolled company of either, engages in security or
courier work in Nashville and/or Knoxville, em-
ployees on layoff from Wells Fargo will be offered
employment in order of seniority before any new
hires. Any refusal to accept such employment will
not affect the employees' recall rights with Wells
Fargo.
Hopefully, the foregoing will receive your favorable
consideration. Please direct your early reply to Mr.
Russell and the undersigned.
Hughes responded by letter dated April 4, as fol-
lows:
This is to acknowledge receipt of your March 31, 1978
letter.
Contrary to the position you take therein, and in view
of the very specific Contract language which exists
within the documents governing the collective bargain-
ing relationship between the Company and the Union
at the above-noted locations, we do not agree that
there is an obligation to bargain with the Union in this
case.
's Hughes also advised that both Wells Fargo and Pon) Express, which
were owned by Baker Industries, had recently been acquired by another
corporation named Borg Warner.
516
BORG WARNER CORPORATION
Should you have any further questions or wish to dis-
cuss this matter further, please do not hesitate to con-
tact the writer at the letterhead address appearing
above.
Meanwhile, at the Wells Fargo Nashville facility, some of
the employees were told for the first time on Friday eve-
ning, March 31., that the Company was no longer going to
be performing "transit work," i.e., courier work, and that
the employees who were then performing such work would
be transferred to driving an armored car.'6 The employees
were so advised by a Mr. Hodges, the plant manager of the
Nashville facility of Wells Fargo, who also told the employ-
ees that Pony Express would be taking over the transit op-
eration the following Monday morning. The Pony Express
operation was located about 4 or 5 miles from the Wells
Fargo location.
Tony Robinson, an employee of Wells Fargo (classified
as a driver/messenger/guard), who was also president of
Local 106, testified that the only conversation he had with
management concerning the transfer was on Friday morn-
ing, March 31, with the said Hodges. Hodges advised that
Pony Express was taking over the transit work, and that
there were going to be some employees laid off. However,
Hodges did not advise Robinson of the names of such em-
ployees at that time. Robinson later learned that the five
employees laid off were Lonnie Bennett, Danny Mercer.
Rick Billings, Benny King, and David Thompson.
It appears that the individuals laid off were, in fact, ter-
minated in accordance with the seniority provisions of the
collective-bargaining agreement and that the older employ-
ees such as Marshall Smith, Rupert Jenkins, and McRaven,
drivers of the courier vans, were informed that they would
be required to drive the armored vehicles or be termi-
nated." Employee Rupert Jenkins told Hodges that he did
not desire to drive the armored vehicle because it was
"pretty dangerous," but when faced with the alternative of
termination, Jenkins indicated that he would make an at-
tempt. After driving the armored vehicle for 2 days, Jenkins
told Hodges that it was "too dangerous and he did not want
to get killed." Hodges responded that he would have to
terminate Jenkins, and did so. Smith and McRaven contin-
ued to operate the armored vehicles with no change of rate
of pay and with the retention of their seniority.
The parties stipulated that Respondent did not offer any
employee at the Wells Fargo facility in Nashville the op-
portunity to perform courier work with Pony Express on
April or thereafter.
As previously noted, the transfer of the courier work
from Wells Fargo to Pony Express in Knoxville was accom-
plished on or about May 1. However, due to some fortu-
itous quitting by some employees at the Knoxville facility
in April, there were no layoffs of employees in Knoxville as
a consequence of the transfer of operations.
By separate letters dated April 26, addressed to Pony
Express in Nashville (but referring to both Nashville and
Knoxville operations) union attorney Carl Schoeninger ex-
pressed the Union's position that Pony Express was a suc-
6" The employees involved were Marshall Smith, Rupert Jenkins. and a
Mr. McRaven.
17 Testimony of Rupert Jenkins. Hodges was not called as a witness.
cessor employer to Wells Fargo, that the Company recog-
nize the Union as the representative of its employees in the
bargaining units at the two locations, and that Pony Ex-
press honor the collective-bargaining agreements between
Wells Fargo and the respective locals. By letter dated May
3, the aforesaid Timothy Hughes responded to the April 26
letters, stating, in essence, that Pony Express was not a suc-
cessor corporation to Wells Fargo and that, further, Pony
Express had a "good faith doubt" that the Union repre-
sented a majority of its employees at either Nashville or
Knoxville.'s
On May 2, in a telephone conversation between Union
Attorney Schoeninger and Hughes, a meeting between rep-
resentatives of Respondent and the Union was scheduled to
take place on May 9 in Louisville. Kentucky.' 9 Present at
the May 9 meeting for the Company were Hughes and Pro-
to. The Union was represented by Donald Bray, a regional
director of the Union from region 4, and another union
representative named Joe Lucas. The company representa-
tives utilized the meeting to point out to the union represen-
tatives their position that it was the loss of several contracts
with their customers which occasioned the layoff in Nash-
ville, and contended that there would have been a layoff of
some employees even had there been no transfer of courier
operations. It was also pointed out that the layoff was con-
ducted strictly in accordance with contractual provisions
and that several of the affected employees and been offered
the opportunity to return to work. Moreover, the company
representatives contended that Respondent had a right to
do away with the courier service under the management
rights clause of the contract. However, when Bray inquired
about the representation of employees at Pony Express,
Hughes responded that this was a matter which the Union
would have have to take up with the National Labor Rela-
tions Board. Moreover, when Bray asked Hughes if Re-
spondent would offer the laid-off people positions at other
locations, Hughes advised that he did not feel that Respon-
dent was obligated to do that. Finally, Hughes assured
Bray that the laid-off employees received all the benefits to
which they were entitled under the contract.
D. Analysis and Concluding Findings
1. The alleged refusal to bargain
Although the present state of the law on the point is not
a paragon of clarity, it may be assumed for purposes of this
discussion that Respondent had an obligation to notify and
bargain with the collective-bargaining representative con-
cerning its decision to transfer the courier service from the
Wells Fargo operations in Nashville and Knoxville to the
Pony Express locations in those cities, respectively.M I do
1* It is noted that. in his letter to Schoeninger. Hughes utilized the letter-
head of Pony Express Courier Corporation at its aforesaid Atlanta. Georgia,
address.
'9 Louisville was chosen as a compromise point between Detroit and At-
'Idta.
, Compare Ozark Trailers, Incorporated and/or Huico Equipment Com-
panv and/or ,Uobilefreeze Companv, Inc, 161 NLRB 561 (1966). with Royal
Typewriter Co. s. .VL.R.B. 533 F.2d 1030 (8th Cir. 1976). On this point, I
recognize, of course, and I am bound to follow the Board's view until it is
changed either by the Board or a decision of the U.S. Supreme Court.
517
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not feel compelled to analyze and definitively resolve that
issue since I find, in agreement with the contentions of Re-
spondent, that even if it be held that Respondent were com-
pelled to bargain with the Union concerning that decision,
the Union effectively waived its right to require such bar-
gaining through its agreement in the collective-bargaining
contract to the so-called "management rights" clause
therein. Thus, at both the Knoxville and Nashville loca-
tions, the collective-bargaining agreements between Wells
Fargo and the Union contained the following clause:
Responsibilities, Duties and Rights of the Company
It is agreed that except as specifically limited by a
particular provision herein this Agreement, the man-
agement and operation of the business is vested in and
shall remain exclusively the right of the Company. In-
cluded within such management rights but not limited
thereto are such rights as the right to hire, assign, di-
rect, train and determine the size of the work force: the
right to discipline or discharge employees for just
cause; the right to determine the nature and methods
of operation of the business, including the right to de-
termine routes, the assignments of vehicles, the number
of shifts, starting and quitting times, and the schedule
of operations. The Company shall also have the right
to sell, close, liquidate, or cease operations in whole or
in part, or to add to, change, modify existing opera-
tions; to employ part-time employees; to make neces-
sary rules and regulations in the operations of the busi-
ness; and other such actions as may be found
necessary, in the sole discretion of the Company, to
operate the business in an efficient and satisfactory
manner.
In Consolidated Foods Corporation,2' the Board dismissed
a complaint in which it was alleged that Respondent
therein violated Section 8(aXS) and (1) of the Act by unilat-
erally transferring driving operations from one of its plants
to another, for economic reasons, without bargaining con-
cerning such decision with its collective-bargaining repre-
sentative. The Board dismissed the complaint, finding that
one of the articles in the collective-bargaining agreement
then in effect gave Respondent the exclusive right to
"change, modify or cease its operation, processes, or pro-
duction, in its discretion . .. [and that] . . . the employer
should be the sole judge of all factors involved including ...
location of business and personnel."
In the instant case, as noted above, the management-
rights clause provides, inter alia, that "the Company shall
also have the right to sell, close, liquidate, or cease opera-
tions in whole or in part, or to add to, change, modify exist-
ing operations; . . ." Thus, it would appear that the clause
in the instant case is at least as broad as-if not broader
than-the clause in the Consolidated Foods case. Accord-
ingly, I find that the Union effectively waived, through its
agreement to such clause in the collective-bargaining con-
tract, its right to require bargaining concerning the decision
to transfer the courier work to another location. 2
21 183 NLRB 832 (1970).
22 This finding subsumes the antecedent finding, which I make, that sub-
stantial evidence in the record shows that the decision was made for eco-
However, it does not follow that the Union waived its
right to negotiate concerning the effect on the employees in
the bargaining units of Respondent's exercise of its preroga-
tive to alter the existing structure of the unit, i.e., the loca-
tion of the employees performing the work and their repre-
sentation for collective-bargaining purposes. Under all the
circumstances of this case, I conclude and find that Respon-
dent did not fulfill its obligation in this regard.
Thus, the evidence shows that the decision to transfer the
courier operation in the Nashville and Knoxville areas was
made in January. Yet it was almost 2 months later, and
only 10 days prior to the planned implementation of the
decision in Nashville, before the Company decision. Even
in that telephone conversation between Hughes and Russell
on March 20, the most that Hughes confided to the union
representative was that he (Hughes) desired to confer with
the Union respecting a matter of some urgency-without
mentioning the nature of the matter or the location in-
volved. Even if Russell had agreed to meet the next day, it
would have hardly afforded the Union sufficient time to
become fully advised of the subject matter, confer with all
interested individuals involved, to formulate plans and pro-
posals for options or alternatives to deal with the problem,
present the Company with such proposals, and attempt to
negotiate respecting all these matters prior to the date of
the effectuation of the plan. Moreover, and more important.
even after the company representatives met with the Union
and advised it of the decision to transfer, the Company was
never willing, either in its discussions or in correspondence.
to negotiate with the Union respecting these critical points:
the opportunity of the affected employees to transfer to the
new locations, or their working conditions should they opt
to accept such offer. In this regard, Respondent clearly
failed to live up to its obligation under the Act.
Thus, in Cooper Thermometer Company v. NL.R.B., 376
F.2d 684 (1967), the U.S. Court of Appeals for the Second
Circuit stated:
. .. the Board may reasonably interpret §8(a)(5), as
explicated in §8(d), as requiring an employer relocat-
ing his plant not merely to give reasonable notice to a
recognized union and to negotiate the terms of the
shutdown, as we held in N.L.R.B. v. Rapid Bindery,
Inc., 293 F.2d 170, 48 LRRM 2658 (1961), but also to
discuss with it the basis on which employees may
transfer and, in that connection, to give information as
to jobs in the new plant essential to the intelligent for-
mulation of the union's requests. The most important
interest of workers is in working: the Board may rea-
sonably consider that an employer does not fulfill his
obligations under §8(aX5) if he refuses even to discuss
with employees' representatives on what basis they
may continue to be employed.
In Westinghouse Electric Corporation,2 the Board com-
mented on its holding in the Cooper case as follows:
nomic reasons and not pursuant to an antiunion motivation. However, I find
that the decision was utilized by Respondent as a means of ridding itself of
the Union at the locations to which the operations were transferred. Cf.
Allied Mills, Inc., 218 NLRB 281 (1975).
23 See Royal Typewriter Co. v. N.LR.B., 533 F.2d 1030. 1039 8th Cir.
1976).
:s 174 NLRB 636 (1969).
518
BORG WARNER CORPORATION
The Cooper Thermometer type of case is concerned
with a loss of jobs caused by the partial or complete
termination of an operation at one location and its re-
location at another. In such situations, the employees
at the old plant are directly affected by the relocation,
and an employer is required to negotiate not only re-
specting the shutdown, but also the bases and condi-
tions on which employees affected by the termination
may transfer to the new location and thus continue to
be employed.2
In view of all of the foregoing, I conclude and find that
Respondent violated Section 8(aX5) and (1) of the Act by
failing to bargain with the Union concerning the effects
upon the employees of its decision to transfer the courier
work to a sister corporation at other locations.
2. The alleged discrimination
The complaint alleges that Respondent laid off five of its
employees in Nashville as a consequence of the transfer of
the courier operations from Wells Fargo to Pony Express,
and that such conduct constituted illegal discrimination in
violation of Section 8(aX3) and (1) of the Act. Respondent
contends that these employees would have been laid off in
any event as a result of the loss of business which occurred
at about this time in Nashville, and, in any event, there is
no proof that Respondent harbored any union animus,
which is a necessary element of proof in a Section 8(a)(3)
violation. For the reasons set forth below, I disagree with
Respondent's contentions.
Thus, although I agree with Respondent that there is a
lack of evidence in this case that Respondent planned and
implemented the transfer of operations in retaliation for
any union activities of its employees, the evidence certainly
discloses that Respondent utilized the transfer as a vehicle
to escape the obligations of the collective-bargaining con-
tract respecting employees who performed the courier ser-
vice. Although such employees were not laid off because of
seniority considerations, they "bumped" employees who
drove the armored cars, and those employees were laid off.
Of course, as Respondent contends, it may be that some of
the armored-car employees would have been laid off in any
event as a result of the loss of business occasioned by Wells
Fargo at this time. Nevertheless, it certainly cannot be said
with assurance that all of them would have been laid off,
particularly since the evidence shows that Pony Express
hired, initially, (in Nashville) five new part-time employees
at the commencement of operations and, at the time of the
hearing, employed six employees. Thus, it would appear
that Respondent might have avoided the layoff of any em-
ployees had it simply offered the courier employees of Wells
Fargo the opportunity of working at Pony Express.
The reason it did not do so, however, seems clear. Re-
spondent's testimony was that the transfer was made in or-
der to become competitive with Respondent's competition
in the area, and the evidence shows that Pony Express hired
l See also Allied Mills, Inc., 218 NLRB 281 (1975). Respondent argues
that these cases are not pertinent because Wells Fargo and Pony Express are
separate Companies. However, I have, of course, held that they are alter
egos, for reasons discussed supra.
the new employees at an initial rate of $3 per hour whereas
the employees at Wells Fargo performing similar work were
obtaining at least $3.70 per hour plus other fringe benefits
provided in the collective-bargaining agreement.
Under all of the circumstances, it cannot be said with
assurance that employees would have been laid off in any
event because of economic considerations had not the
transfer occurred. Moreover, since it was Respondent's con-
duct which made it impossible to disintangle the conse-
quences of the two events, it must be the one to bear the
burden of the consequences.
Finally, as respects Resondent's arguments concerning
lack of evidence of antiunion motivation, the answer is pro-
vided by the decision of the United States Supreme Court
in N.L.R.B. v. Great Dane Trailers, Inc." The Court held in
that case that "if it can reasonably be concluded that the
employer's discriminatory conduct was 'inherently destruc-
tive' of important employee rights, no proof of an antiunion
motivation is needed and the Board can find an unfair labor
practice even if an employer introduces evidence that the
conduct was motivated by business considerations."27 (Em-
phasis supplied.) The court of appeals in Cooper Thermom-
eter, supra, pointed out that "the most important interest of
workers is in working."'' Clearly, the action of Respondent
here in cutting off that important interest, i.e., by not allow-
ing the Wells Fargo employees performing courier service
to transfer to Pony Express, constituted conduct which was
"inherently destructive" of important employee rights.
Thus, it was violative of Section 8(aX3) and (1) of the Act."
3. Alleged discrimination against Rupert Jenkins
The complaint alleges that on or about April 4 Wells
Fargo constructively discharged its employee, Rupert Jen-
kins, at its Nashville, Tennessee, operation in violation of
the Act.
This employee had worked for Wells Fargo since 1969.
His regularjob was driving a courier van, performing "tran-
sit work," although on occasion he was assigned to work in
an armored car when a regular employee was absent. Jen-
kins testified that he had worked in an armored car ap-
proximately 10 to 12 times during his entire employment at
the Company. The record shows that on the last day of
March it was announced to the employees orally and by
notice on the bulletin board that some of the employees
would be laid off and some of the courier drivers would be
transferred to armored-car work based on their seniority.
When Jenkins advised the assistant vice president of the
Company, Peter Jenson, that he did not know whether he
wanted to drive an armored car or not since it was "pretty
dangerous," Jenson replied that Jenkins would "either drive
it, you can drive it or I will have to terminate you." Jenkins
responded that he would try. Jenkins drove the armored car
for 2 days before advising Plant Manager Hodges he would
no longer be able to perform that work because it was "too
dangerous and he did not want to get killed." Hodges re-
6 388 U.S. 26 (1967).
27 Id at 34.
2 376 F.2d 684, 688 (1967).
21 Alied Mills. Inc. supra.
519
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sponded that he would have to terminate Jenkins, and did
so.
The facts in the instant case do not add up to, in my
judgment, a constructive discharge in the traditional sense.
That is to say, there is no evidence that Respondent as-
signed Jenkins to the armored truck job, with the expecta-
tion or hope that he would voluntarily quit, in order to
discourage membership in the Union. However, the facts
do show, as set forth above, that Respondent transferred
the courier operation from Wells Fargo to Pony Express,
whose locations in Nashville were only a few miles apart,
without giving the employees at Wells Fargo who had regu-
larly performed the courier operation an opportunity to
work at Pony Express. In my view, it was a proximate and
foreseeable result of Respondent's conduct that the employ-
ees who had regularly performed courier work at Wells
Fargo would be unhappy and disgruntled at the abrupt
change in their working conditions. Moreover, it would be a
reasonable inference, in my view, that if Respondent had
offered Jenkins the opportunity to perform transit work at
the Pony Express location, he would have accepted same.
Clearly, as previously noted, one of the principal reasons
that Respondent planned and executed the transfers in the
manner described was to operate the courier function with
employees unfettered by the terms and conditions of em-
ployment set forth in the collective-bargaining agreements
between Respondent and the Union. It may be reasonably
inferred that this was the prime consideration in not afford-
ing the Wells Fargo employees the opportunity to work at
Pony Express.
Under all circumstances, I find the quitting of Jenkins to
be a proximate result of Respondent's wrongful and unlaw-
ful conduct. An appropriate remedy would be to require
Respondent to offer Jenkins the opportunity to become em-
ployed at Pony Express, and to make him whole for any
loss of earnings he may have suffered as a result of Respon-
dent's unlawful conduct) °
11. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section I, above,
occurring in connection with the interstate operations of
Respondent, 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 obstruct-
ing commerce and the free flow thereof.
Ill. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5)
of the Act in particular respects set forth above, I shall
recommend that Respondent, upon request, bargain collec-
0 Cf. Crawford Door Sales Company, Inc., and Cordes Door Company, Inc.,
226 NLRB 1144 (1976).
tively with the Union concerning the effects on the repre-
sented employees of the relocation of its courier operations
from Wells Fargo to Pony Express in Knoxville and Nash-
ville, Tennesee. Since the collective-bargaining agreements
between Respondent and the Union were in effect at the
time the unfair labor practices occurred, it will be ordered
that Respondent continue to recognize and bargain collec-
tively with the Union as the exclusive representative of the
employees in the appropriate units." The appropriate units
shall henceforth be construed as encompassing the appro-
priate classifications of' employees at the Pony Express fa-
cilities in Nashville and Knoxville, it appearing that the
only alterations in the language of the united descriptions
are to add an "s" to the word "operation" in the unit at
Nashville and the same letter to the word "facility" in the
Knoxville unit.
Having found that Respondent discriminated in regard
to the hire or tenure of employment of some of its Nashville
employees, in the manner set forth above, it will be recom-
mended that Respondent reinstate such employees to their
former or substantially equivalent positions at either the
Wells Fargo or Pony Express locations (to the extent Re-
spondent has not already done so),3 and make each whole
for any loss of earnings he may have suffered by reason of
the discrimination against him. All such losses are to be
reimbursed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest thereon to be
computed as prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).3'
Respondent's unfair labor practices indicate a purpose of
avoiding and evading its collective-bargaining obligations,
in derogation of a primary policy of the Act. Accordingly, it
will be recommended that Respondent be ordered to cease
and desist from in any other manner infringing upon the
rights guaranteed employees by Section 7 of the Act. 4
Upon the foregoing findings of fact and the entire record
in this case, I make the following:
CONC(I.USIONS OF LAW
I. 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 constitute appropriate units for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act:
All regular guard employees, being driver guards, mes-
senger guards, and guards, employed by the Company
at its Nashville, Tennessee, operations, excluding all
other employees, office clerical employees and supervi-
sors and as defined in the Act.
" See. e.g., Fraser & Johnston Company, 189 NLRB 142 (1971); Allied
Mills, Inc.. supra,.
"2 There is some evidence in the record that Respondent had reemployed
some of the laid off employees at the time of the hearing. However, the time.
nature, and extent of such employment is not disclosed and should be, of
course, determined in the compliance stage of this proceeding.
3See. generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
4 Cf. Big Bear Supermarkets t 3, 239 NLRB 179 (1978).
j20
BORG WARNER CORPORATION
All full-time and regular part-time messenger guards,
driver guards and guards employed by the Company at
its Knoxville, Tennessee, facilities, excluding all other
employees, all office clerical employees, professional
employees and supervisors as defined in the Act.
4. At all times material the Union has been the majority
representative for purposes of collective bargaining with
Respondent in the aforesaid units.
5. By refusing, since on or about March 31. 1978, to bar-
gain collectively in good faith with the Union as the exclu-
sive representative of the employees in the appropriate
units, respecting the effects upon the employees in the ap-
propriate units of Respondent's transfer of its courier op-
erations from Wells Fargo to Pony Express, Respondent
has engaged in. and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the Act.
6. By discriminating in regard to the hire or tenure of
employment of the employees and named below to discour-
age membership in the Union, Respondent has engaged in.
and is engaging in, unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act:
Danny Mercer
Rick Billings
Benny King
David Thompson
Lonnie Bennett
Rupert Jenkins
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, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The Respondent, Borg Warner Corporation; Baker In-
dustries, Inc.; Wells Fargo Armored Service Corporation:
Pony Express Courier Corporation, Nashville and Knox-
ville, Tennessee, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with the Union
concerning the effects upon employees in the above-de-
scribed appropriate units of the transfer of the courier op-
erations from Wells Fargo to Pony Express at the Nashville
and Knoxville locations.
(b) Discouraging membership in the Union by terminat-
ing the employment of any of its employees discriminator-
" 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.
ily, and by thereafter failing and refusing to reinstate them,
or by discriminating in any other manner in regard to their
hire and tenure of employment or any term or condition of
employment.
(c) In any other manner, interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of its employees in the above-
described appropriate units, concerning the effects on the
employees of the transfer of operations from Wells Fargo to
Pony Express at the Nashville and Knoxville locations.
(b) Offer the employees named below immediate and full
reinstatement to their former or substantially equivalent po-
sitions, without prejudice to their seniority or other rights
and privileges, dismissing, if necessary, any persons hired to
replace them, and make them whole for any loss of pay, in
the manner set forth in the remedy section of this Decision:
Danny Mercer
Rick Billings
Benny King
David Thompson
Lonnie Bennett
Rupert Jenkins
(c) Continue to recognize and, upon request, bargain col-
lectively with the Union as the exclusive bargaining repre-
sentative of the employees in the above-described appropri-
ate units. Such units shall now and henceforth be construed
to encompass the classifications of employees at both the
Wells Fargo and Pony Express facilities of Respondent at
the respective Nashville and Knoxville locations.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary and relevant to analyze the amounts of backpay due
and the rights of employment under the terms of this Order.
(e) Post at its Wells Fargo and Pony Express facilities, in
Nashville and Knoxville, Tennessee, copies of the attached
notice marked "Appendix.", Copies of said notice, on
forms provided by the Regional Director for Region 26,
after being duly signed by Respondent, shall be posted im-
mediately on receipt thereof, in conspicuous places, and be
maintained for a period for 60 consecutive days. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the said Regional Director, in writing, within
20 days from the date of this Decision, what steps Respon-
dent has taken to comply herewith.
M In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in he notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional abor Relations Board."
521