York Div., Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Jun 2, 1977

229 N.L.R.B. 1149 (N.L.R.B. 1977)

YORK DIV., BORG-WARNER CORP.
York Division, Borg-Warner Corporation and Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America,
UAW. Cases 9-CA-10252 and 9-RC-11382
June 2, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On February 25, 1977, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, York Division,
Borg-Warner Corporation, Madisonville, Kentucky,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election held on
April 15, 1976, in Case 9-RC- 11382 be, and it hereby
is, set aside, and that Case 9-RC-11382 be, and it
hereby is, remanded to the Regional Director for
Region 9 for the purpose of conducting a new
election at such time as he deems appropriate.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: The
consolidated hearing in these cases, held on September 23
and 24, 1976, is based on the following: an unfair labor
practice charge in Case 9-CA-10252 and objections to
conduct affecting the results of the election in Case 9-RC-
11382 filed by the above-named Union on April 20, 1976; a
complaint issued on June 28, 1976, in Case 9-CA-10252; a
supplemental decision issued on July 22, 1976, by the
Regional Director for Region 9 which consolidated certain
objections and challenges filed by the Union in Case 9-
RC-11382 with the complaint in Case 9-CA-10252 for the
purpose of hearing, ruling, and decision by an Administra-
tive Law Judge. The complaint alleges that Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act. Respondent filed an answer
denying the commission of the alleged unfair labor
practices. The Union's objections to conduct affecting the
results of the representation election allege in substance
that Respondent engaged in conduct which interfered with
the holding of a free and fair election and constitute
grounds for setting aside the election. The Union also
challenged the votes of nine employees on various grounds.
Upon the entire record,' from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs submitted by General Counsel and
Respondent, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation engaged in the
manufacture of heating and air-conditioning equipment at
its plant in Madisonville, Kentucky. Respondent annually
had a direct inflow of products valued over $50,000
shipped to it from points located outside the State of
Kentucky. I find, as Respondent admits, that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW,
herein called the Union, is admittedly a labor organization
within the meaning of Section 2(5) of the Act.
1ll. THE UNFAIR LABOR PRACTICES
On April 15, 1976, the Respondent's employees voted in
a Board-conducted election and rejected the Union by a
vote of 149 to 143. The question presented in this case is
whether, during the period before the election, the
Respondent's representatives violated Section 8(aXI) of the
Act by the following conduct and, by such conduct, so
I Respondent moved to have the official transcript corrected in certain
particulars. This motion was unopposed. Item 3 does not accord with my
recollection of the testimony. I therefore grant the motion except as to item
3.
229 NLRB No. 173
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfered with the election to require it to be set aside:
interrogating employees about their union activities;
requesting employees to wear "Vote No" buttons and not
to wear union insignia; promising a promotion to an
employee if he would discontinue his union activities;
solicitation of employee grievances to undercut the Union;
promising employees relief from excessive overtime to
discourage union support; and threatening employees that,
if they voted for the Union, negotiations would start from
"scratch" or "zero," that employees might lose benefits
through collective bargaining, and that wages and benefits
would be frozen during negotiations for a contract. 2
A. Interrogations, Promises of Benefits, and
Interference With Protected Activity
1. Interrogations of employee applicants
During the last part of February 1976, Edward Payton
was interviewed by Personnel Director Rod Johnson for a
position with Respondent. During that interview, Johnson
told Payton that Respondent operated a nonunion plant
and would like to keep it that way. He then asked Payton
how he felt about the Union. Payton replied that he had
not worked for a union so he did not know. Johnson also
interviewed Ronnie Payton. During that interview, John-
son brought up the subject of the Union, telling Payton
that there would be an election at the plant in April 1976.
He asked Payton his opinion of the Union.3
It is well established that interrogation of employees or
employee applicants concerning their union sympathies
violates Section 8(a)(l) of the Act. F. M. Broadcasting
Corp., 211 NLRB 560 (1974); Rochester Cadet Cleaners,
Inc., 205 NLRB 773 (1973). Here the credited testimony
clearly shows such unlawful interrogation. No lawful
purpose was shown for the questions and no assurances
were given that the information elicited would not cause
reprisals. Indeed, it appears that Respondent's purpose for
the questions and Johnson's accompanying statements was
to discourage union support and activity among prospec-
tive employees. In these circumstances, I find that
Johnson's questions were coercive and violative of Section
8(a)(l).
2. Interrogations of employee concerning a
theoretical strike
On March 30, 1976, Department Supervisor Jim Guen-
ther approached employee Ronnie Payton while he was at
2 Also presented by the supplemental decision of the Regional Director
is the issue of whether nine employees. whose ballots were challenged,
properly voted in the election. Seven employees whose votes were
challenged by the Union were hired after March 14, 1976, the last day of the
payroll period immediately preceding the March 17, 1976, decision by the
Regional Director directing the election. They, therefore, were not eligible to
vote in the election. As to the remaining two challenges, the evidence at this
hearing shows, and I find, that Roy Villines, a paint technician, and James
Robinson, an employee on sick leave, were eligible to vote. Accordingly, I
overrule the challenges to their votes. Villines' job classification, that of
paint technician, is properly within the election unit. He has no supervisory
responsibilities; he received the same fringe and other benefits as other
employees; and he works side by side with other unit employees. James
Robinson has been incapacitated because of a work-related injury and is
receiving insurance compensation. He had a reasonable expectancy of recall
at the time of the election.
his work station and, pointing to Payton's two union
buttons, asked how he felt about them. Payton responded
that he thought the Union could bring about better benefits
for employees. Guenther replied that he thought the
employees had the best benefits available, and then
questioned Payton as to what he would do if there were a
strike that lagged on for a couple of weeks and Payton had
six mouths to feed. On or about April 1, 1976, Payton was
also approached at his work station by Supervisor Gene
Townsend, who pointed to Payton's union buttons and
asked how he ever got involved in the Union. Payton
responded that he thought it could bring about better
benefits for employees. Townsend told Payton that
Respondent was the best in the area or among the best in
benefits, and if the Union came in benefits would still have
to be negotiated from zero. Townsend then asked Payton
what he would do if there were a strike. Employee Ronald
Cardwell was present during part of this conversation, and
heard Townsend ask Payton how he got involved in the
Union. Townsend also asked employees why they thought
they needed a union. 4
Interrogation of employees as to what they would do in
the event of a strike, especially when asked in the absence
of any actual strike threat, is coercive and violates Section
8(a)(1) of the Act. W. A. Sheaffer Pen Company, a Division
of Textron, Inc., 119 NLRB 242 (1972), affd. 486 F.2d 180
(C.A. 8, 1973). There was no lawful purpose for the
inquiries by Townsend and Guenther as to the union
sympathies of employees, nor were there assurances against
reprisals. Accordingly, I find that the interrogations of
employees Payton and Cardwell tended to coerce employ-
ees and were violative of the Act.
3. Other interrogation and interference with the
wearing of union buttons
On or about April 1, 1976, Cardwell was asked by
Supervisor Roger Pollert how he felt about the Union.
When Cardwell answered that he felt pretty good about it,
Pollert asked him why and pressed him for examples of
how the Union could help the working man and also asked
him if he wanted more holidays or wages. Cardwell
answered that he wanted seniority rights and job descrip-
tions. Pollert then stated that employees already had those
benefits. Cardwell disagreed, but Pollert continued ques-
tioning him and, Cardwell told Pollert about a job-related
complaint. Also at about this time, Pollert spoke to
employee Roger Dawson and commented on the fact that
3 These findings are based on the credited testimony of the Paytons who
impressed me as reliable witnesses. Johnson denied that the Union was
mentioned in the interview, but he testified that he tells any prospective
employee that Respondent is a nonunion operation and intends to stay that
way. Johnson further testified that if employees do not bring up the subject
of a union at their employment interviews he brings it up, noting that
Respondent is a nonunion operation and intends to stay that way, and that
this causes a majority of the applicants to make some comment of their own
on the matter. I find it likely, in view of his admitted concern about unions
in employment interviews, that Johnson questioned the Paytons as they
testified.
4 Townsend could not recall the details of the above conversations.
Guenther denied questioning Payton about his union button. As indicated
above, I found Payton to be a truthful witness and I credit him. I also credit
Cardwell. whom I found to have testified reliably on this issue.
1150
YORK DIV., BORG-WARNER CORP.
Dawson was still wearing his union buttons. He also asked
if Dawson thought the Union would solve all of his
problems. This caused Dawson to respond that he felt it
would solve some of his problems. Pollert concluded that
in his opinion it would just create more.5
On April 6, 1976, Johnson asked employee Frankie
Reagor why she was voting for the Union, since she was
wearing a union button. She responded to Johnson saying
that she was doing so because she wanted to. Johnson then
asked her if Respondent had not been good to her, and
Reagor replied that she was thinking of others. 6 Thereafter,
on April 8, Reagor was called to the office by Department
Manager Scott Boxer. Once in the office, Boxer asked
Reagor why she was voting for the Union. Reagor had
been wearing a union button for between 2 and 4 days.
Reagor declined to discuss the matter on company time
without a witness, and the conversation was terminated.7
On April 14, Supervisor Dean Harper asked employees
Katherine Crowley and Pamela Sims why they were
wearing "yes" stickers. He also asked why they were for the
Union or what the Union could do for them. After their
responses, Harper asked Crowley if she believed there
would be a strike if the Union came in.8
On April 12, 1976, while employee Edward Payton was
at his work station in the paint room, his supervisor, Dean
Harper, asked him and a fellow employee how they felt
about the Union. Payton said he thought it would be a
good idea. Harper then asked if they thought the Union
would get in, and Payton replied that he hoped it would.9
On April 12, 1976, Delores Jarvis was called to see her
supervisor, Charles Lowery, in his office. When she arrived
at the office, Lowery asked Jarvis why she was wearing a
union button and did she have a problem. Jarvis told
Lowery that it was based on her feelings about her job and
Respondent. Lowery then asked her to explain what she
meant and Jarvis did so. Thereafter, Lowery asked Jarvis
to remove her union button, which she did. During the
conversation, Jarvis told Lowery she felt she was being
treated unfairly by the team leader, and that she had
considered going to see Plant Superintendent Doug Vick.
Lowery then told Jarvis that it was a good thing she didn't
do that wearing her union button. During the conversation,
Lowery told her she was being considered for a team leader
job, which pays 20 cents more per hour, and has the
advantage of the incumbent not having to stay actively
· The above is based on the testimony of Cardwell and Dawson, whom I
credit as reliable witnesses on this issue. Pollert did not deny the
conversation with Dawson. He testified that he did have a conversation
substantially like that related by Cardwell but could not recall asking
Cardwell "any question" or "how [the conversation ] came about."
s The above is based on the credited testimony of Reagor. I do not credit
Johnson's contrary testimony. In response to a question about Reagor, he
testified that the conversation dealt with her personal problems and not the
Union. He then defensively volunteered that he could not have questioned
Reagor about the Union because she was an obvious union supporter. In
view of answers such as this and his demeanor throughout his testimony, I
believe Johnson's testimony was contrived and unreliable.
I The above is based on Reagor's testimony. I was particularly impressed
with Reagor's demeanor as a witness. She was recalled as a witness after
Boxer had testified that the above conversation dealt with the death of
Reagor's son. She effectively rebutted that testimony. Boxer's testimony
seemed to me to be contrived. He sought to explain away all conversations
with Reagor by saying he never talked to her about the Union, but that he
only talked to her about her son and her attendance problem. I do not credit
Boxer's testimony.
working at one job for 8 hours. She said she did not want
the job.' 0
On April 14, following the interview during which
Supervisor Lowery prevailed upon her to forgo wearing her
union button, Jarvis noticed that another employee was
wearing three "Vote No" buttons. She then called Lowery
over to where she was working and asked him why that
employee was allowed to wear "Vote No" buttons, whereas
Lowery did not want employees to wear the union buttons.
Lowery replied, saying, "Well, if you want to wear a Vote
No button, that is fine. Do you want one?" At that time,
Lowery had a box of such buttons on his desk within about
8 feet of where they were standing."
During the week of April 12, 1976, Supervisor Terry
Jones approached employee Ula Dean Tyson in her work
area, and asked her to wear a "Vote No" button, handing
one toward her. According to Tyson, Jones had a handful
of such buttons at that time.'2
In accordance with the above findings, I find and
conclude that Respondent violated Section 8(a)(1) of the
Act by interrogating employees about their union sympa-
thies and activities. In addition some of the confrontations
discussed above occurred in the context of discussion of
employment benefits or in the formality of an office
interview with supervisors, thus highlighting their coercive
effect. Even though some of the employees were known
union supporters, Respondent's inquiries and requests
tended to probe the strength of their union support.
Respondent's conduct in restraining employees from
wearing "Vote Yes" buttons and at the same time
requesting them to wear "Vote No" buttons was also
unlawful. Such conduct compels employees to make a
choice or exhibit the depth of their pro- or antiunion
feeling in front of management officials and thus consti-
tutes a subtle form of coercive interrogation. See Bancroft
Manufacturing Company, Inc., Croft Aluminum Company,
Inc., Croft Ladders, Inc., Croft Metal Products, Inc., and
Lemco Metal Products, Inc., 189 NLRB 619, 629 (1971);
Kavneer Company, a Division of American Metal Climax,
Inc., Appliance Products Division, 164 NLRB 983, 995
(1967), enfd. in relevant part 413 F.2d 191 (C.A. 6, 1969);
The Faulhaber Company, 191 NLRB 326, 329 (1971). In any
event, such conduct requires the overturning of an election
even if it is not found to be an unfair labor practice because
it creates an atmosphere which precludes a truly free
I The testimony of Sims and Crowley was substantially the same. I credit
their testimony. By his own admission, Harper could not recall the specifics
of this conversation.
9 Harper did not deny this conversation in his testimony.
'o The above is based on the credited testimony of Jarvis. Lowery also
testified about this conversation. He said that he noticed Jarvis had a union
button and asked her how he had failed. He also testified that she took the
button off and that he asked her if she thought a union was needed and if
she had a problem. He denied asking her to take the button off or talking
about the team leader job, although he testified he did so on an earlier
occasion. I credit Jarvis who was much more detailed in her testimony and
impressive as a witness. Much of Lowery's testimony supports Jarvis but I
cannot believe she would have removed her union button, as Lowery
testified, without any reason. It is more likely that she did so because of
Lowery's remarks, as she testified.
1t Lowery did not deny this conversation in his testimony.
12 Jones was not called as a witness.
1151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election. See The Chas. V. Weise Co., 133 NLRB 765
(1961).
4. Other interrogation and promises of benefits
directed to employees Buchanan and Cardwell
The General Counsel alleges that employee Larry
Buchanan was unlawfully questioned on April 6 when he
was at the Ramada Inn for a union organizational meeting.
He testified that he encountered Supervisor James Daniels
in the Shamrock Room and that Daniels offered Buchanan
a drink. When Buchanan refused, Daniels asked him if he
had to attend a union meeting. Daniels' account of the
encounter is somewhat different. He denies asking whether
Buchanan had to attend a union meeting. I find that, even
if the interrogation occurred as alleged, it was not coercive,
particularly since it was a chance meeting away from the
plant in a social context, and, in my view of the testimony
of both witnesses, it was made and taken in a friendly
joking manner.
The General Counsel also alleges that Supervisors Tom
Lutz and Nick Popowich unlawfully interrogated employee
Ronald Cardwell on the day of the election, April 15.
Cardwell testified that Lutz asked him how the election
would come out and he replied he thought the Union
would win by 80 percent to 20 percent. Lutz laughed and
asked what he thought he could gain with the Union.
Cardwell responded by reciting benefits, and Popowich
said he did not know what they would get because they
would start with two goose eggs. Lutz and Popowich both
testified that Cardwell initiated the conversation by
predicting a union victory by a wide margin. I was
favorably impressed by the testimony of Lutz and Popo-
wich which was in essence mutually corroborative. I
therefore do not find there was unlawful interrogation in
this conversation. Moreover, the context of conversation
did not suggest coercion. My view of the testimony is that
this discussion, which I find was initiated by Cardwell, was
typical employee banter and taken in a friendly manner by
all concerned.
In late March 1976, Buchanan approached his supervi-
sor, Scott Boxer, for the purpose of informing Boxer that he
desired to resign from the position of team leader. Boxer
mentioned that he considered Buchanan to be a good
management prospect. Boxer went on to say that Buchan-
an had good management ability and that if he would
dedicate himself to company goals he would go a long way
in the Company. At this point, Buchanan asked if that
meant that if he gave up his union activities he would go up
in the Company. Boxer replied in the affirmative.13
While Buchanan was on his way to the water fountain on
April 15, election day, he encountered Rod Johnson. As
Buchanan walked by Johnson, Johnson pointed to Bu-
13 Boxer could not recall the latter statement but testified that he had
many conversations with Buchanan about his management potential. As I
indicated above, I found Boxer not to be a reliable witness. I thought
Buchanan's testimony on this issue was straightforward and accurate.
14 Johnson's contrary testimony on this issue is discredited. As in other
aspects of his testimony he seemed anxious to go beyond the scope of the
questions and give self-serving explanations, I found him to be a totally
unreliable witness.
1' The above is based on the testimony of employees Payton and
Buchanan whom I credit as straightforward reliable witnesses on this issue.
chanan's union T-shirt and said that Buchanan knew better
than that, asked why Buchanan did not take it off, and
stated that Buchanan was a good management prospect.'4
The General Counsel asserts that the two conversations
with Buchanan amounted to promises of benefit to
discourage his active union support and leadership posi-
tion.
Johnson's statement to Buchanan was not unlawful in
context. His remarks were innocuous and did not consti-
tute a promise of benefit in exchange for abandonment of
the Union. Buchanan's own testimony leads me to the
conclusion that the remarks were made in a manner in
which they could not have been taken seriously.
The crucial evidence in the Boxer-Buchanan conversa-
tion is Boxer's affirmative reply to Buchanan's question as
to whether, if he gave up his union activities, he could get a
promotion. This is a clear promise of benefit and it is
unlawful notwithstanding that the subject may have been
initiated by Buchanan. See Medo Photo Supply Corporation
v. N.LR.B., 321 U.S. 678, 683 (1944).
B. Solicitation of Employee Grievances
During the first week of April 1976, Plant Manager Dean
Couch spoke to the employees at team meetings, including
some which combined the tubing, welding, and wiring
departments all in one meeting. Couch conducted question
and answer sessions at the meetings. He asked the
employees if there were any questions that he might be able
to answer concerning problems in the departments. Couch
did not attend team meetings very often, and did not
normally conduct such meetings. It was also very unusual
to have more than one team at a meeting.
On or about April 8, a notice was posted on the bulletin
board stating that Plant Manager Couch would be in the
cafeteria the following day to answer any questions
individual employees might have pertaining to the Union
or other matters. The following day, employee Buchanan
visited the cafeteria and spoke with Couch, bringing up the
subjects of seniority, job posting, and bidding procedures.
Couch responded, saying he agreed there had been
problems in those areas and that Respondent was review-
ing the policies and was going to try to do better. Such
meetings were unusual at Respondent's plant.'5
The Board has held that, in the absence of an established
program, the holding of meetings at which employees are
encouraged to air their grievances or problems constitutes
solicitation of those grievances and an implied promise of
corrective action if employees will reject the Union, thus
violating Section 8(aXl) of the Act. Shulman's Inc., of
Norfolk, 208 NLRB 772 (1974), reversed on other grounds
519 F.2d 498 (C.A. 4, 1975); Ring Metals Company, 198
NLRB 1020 (1972); Reliance Electric Company, Madison
Couch's testimony did not substantially conflict with their testimony. He
testified that he called or attended a number of team meetings in early April
to answer questions concerning the union campaign. Although Couch did
testify that it was unusual to combine teams for a single meeting as he did.
he did not testify in detail about these meetings. I consider this unusual in
view of Couch's almost total recall when testifying about speeches he gave
to assembled employees. Accordingly, to the extent that Couch's testimony
contradicts or deviates from that of Payton and Buchanan, I discredit his
testimony.
1152
YORK DIV., BORG-WARNER CORP.
Plant Mechanical Drives Division, 191 NLRB 44, 46 (1971),
affd. 457 F.2d 503 (C.A. 6, 1972). The meetings held on a
three-team basis as well as the April 9 meeting for all
employees in the cafeteria were clearly attempts to solicit
grievances. Such meetings were not held pursuant to
established policy and they were held in the midst of a
union campaign. The sole purpose for which they were
held was to encourage employees to state their grievances
and problems and to imply that Respondent would resolve
grievances if employees would reject the Union. Thus,
Couch stated that Respondent was reviewing certain
practices complained of and was going to try to do better.
Indeed, it appears that, as a result of his conversations with
employees, Couch learned of complaints about overtime
and he subsequently promised relief therefrom in a manner
which clearly left the impression that such relief would be
forthcoming if the Union were rejected (infra, sec. Ill,c). In
accordance with the cases cited above, I find that
Respondent's solicitation of grievances and implications
that they would be corrected without a union violated
Section 8(a)(1) of the Act.
C. Promises of Relief From Excessive Overtime
Plant Manager Dean Couch spoke to assembled employ-
ees advising them to vote against the Union in the
upcoming election. He spoke four times, on March 29 and
30, and again on April 13 and 14, 1976. In at least three of
these meetings, Couch said that employees had been
complaining to him about working too much overtime and
that Respondent was going to cut out overtime. Such
testimony came from four employees-Cardwell, O'Nan,
Dawson, and Covington-whom I found to be truthful
witnesses on this issue. Couch himself admitted he spoke
about overtime in his speeches of March 29 and 30, telling
employees that he knew they were tired of working so
much overtime and that this was the second most common
question asked of him when he talked to employees. He
testified he told employees that "in order to try to find
some reasonable level of overtime work we are continuing
to hire people just as fast as we are able to hire them."
According to Couch, this discussion was before and
unconnected with his antiunion speeches, discussed infra,
section III, D, par. 1. I do not credit Couch's testimony
insofar as it conflicts with that of the employees named
above and insofar as he asserts that his overtime talk was
unconnected to the antiunion speech. As to the former, I
note that the employees were still employed and testified
against their employer's interests. As to the latter, I note
that overtime was a significant issue in the plant at this
time, that Couch admittedly learned of the issue in
employee meetings, and, as I have already found, Couch
unlawfully solicited grievances in an effort to defeat and
undercut the necessity of a union.
Is The above is based on the composite testimony of employee witnesses
whom I credit. Couch's testimony about the speeches was not substantially
in conflict with the versions of employee witnesses. For example, Couch
admitted that he had told employees that if the Union won bargaining rights
negotiations would start from scratch. Couch further testified that he had
told employees that negotiations could take some period of time, but he
could not recall specifically how many months he had said. On cross-
examination, Couch stated that he had said to the employees that it would
not be unusual to take 6 to 9 months, and that there were cases on record
Thus, I find that the employee meetings conducted by
Plant Manager Couch were for the specific purpose of
putting forth Respondent's campaign position and argu-
ments. In at least three of those meetings, Couch seized the
opportunity to promise employees relief from excessive
overtime, a matter he knew to be one of the foremost
complaints that his employees had about their working
conditions. This constituted a promise of correction of
their grievances and an improvement in their working
conditions, in an attempt to win their support in defeating
the Union, and, therefore, constitutes a violation of Section
8(aX1) of the Act.
D. Threats To Bargain From Scratch or From
Zero
The evidence in this case also shows that in the four
speeches to assembled employees on March 29 and 30 and
April 13 and 14, Plant Manager Couch informed employ-
ees that if the Union got in, bargaining would start from
"scratch" or "zero," and that he emphasized this in various
ways such as reference to "two goose eggs," and holding up
a blank sheet of paper. He stated that present benefits were
the best in the area, but that if the Union came in all
benefits would be frozen during the period of negotiation,
which he stated could take a long time, from 6 to 9 months
or even longer. He also said that, even though an annual
wage survey came up in August, if negotiations were going
on at the time, nothing could be done about it. Couch did
not specifically say that benefits would be lost or taken
away.16
Couch also referred in his speeches to a union leaflet
which had been distributed to employees and was received
into evidence in this proceeding as Respondent's Exhibit I.
That leaflet set forth accurately the rights of employees
guaranteed under Federal law. At the bottom of that leaflet
was the following statement:
You Will Not Lose Any Of Your Present Benefits.
This was emphasized and followed by the explanation
"Your management is aware that it would be a violation of
Federal law to refuse to continue your present benefits just
because you exercise your legal right to form a union."
Respondent issued another leaflet mailed to employees on
April 2, 1976, answering the union leaflet with quotes from
court and Board decisions including Ludwig Motor Corp.,
222 NLRB 635 (1976), which Respondent relies on in this
proceeding to support its contention that the Couch speech
was proper. Couch testified that he told employees in his
speeches that the union leaflet was misleading because it
that had gone 12 months or longer. Couch also testified that he gave
assurances to employees that Respondent could not, by law, interfere with
their rights.
However, I found Couch's testimony on the speeches to be so self-serving
and designed to fit a particular mold as not to be a reliable recitation of
what actually was said in the speeches. Thus, I specifically do not credit his
denial that he referred in his speeches to upcoming wage surveys. Nor do I
credit his version of what was said in the speeches to the extent that it
conflicts or differs with that of employee witnesses.
1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suggested that employees would not lose any of their
present benefits.17 He said benefits are not lost through an
election but through negotiations whereby a union trades
some existing benefits for other different contract clauses.
He then mentioned the "bargaining from scratch" remarks.
In considering all the testimony concerning the Couch
speeches, including that of employee witnesses who were
unable to recall exactly how Couch referred to the union
leaflet, I am convinced that Couch plucked a statement
from the leaflet out of context in an attempt to utilize the
"loss of benefits" issue in his speech. Thus, the Union told
employees in the leaflet that present benefits could not be
lost because employees chose to form a union, but the
Union's position was treated by Couch as a guarantee that
benefits would not be lost through negotiations. I am also
convinced that this subtle and misleading change in
emphasis by Couch was made in an attempt to place his
"bargaining from scratch" speech on the same legal footing
as the speech considered by the Board in Ludwig. As I
point out infra, that case is distinguishable. More impor-
tantly, however, Couch's remarks are to be considered in
the context in which they were made. A significant factor
in assessing the context of the remarks and whether they
were coercive in effect is Couch's subtle and misleading
reference to the union leaflets. The following language of
the Supreme Court is apropos:
[A]n employer, . . . can easily make his views known
without engaging in "brinksmanship" when it becomes
all too easy to "overstep and tumble [over] the brink,"
Wausau Steel Corp. v. N.LR.B., 377 F.2d 369, 372 (7th
Cir., 1967). At the least he can avoid coercive speech
simply by avoiding conscious overstatements he has
reason to believe will mislead his employees. [N.L.R.B.
v. Gissel Packing Co., Inc., 395 U.S. 575, 620 (1969).]
The Board has held that statements by an employer to
the effect that negotiations or bargaining will begin from
scratch, and other statements indicating that the employ-
ees' selection of a union to represent them will result in the
loss or possible loss of existing benefits, constitute
violations of Section 8(a)(1) of the Act and a basis for
setting aside an election. Textron, Inc. (Talon Division), 199
NLRB 131, 134 (1972); Astronautics Corporation of Ameri-
ca, 164 NLRB 623 (1967); Saunders Leasing System, Inc.,
204 NLRB 448, 454 (1973), modified 497 F.2d 453 (C.A. 8,
1974); Monroe Manufacturing Company, Inc., 200 NLRB
62, 71 (1972); Herb A. Cook and Joan D. Cook d/b/a
Golden Hours Convalescent Hospitals, 182 NLRB 796, 803
(1970).
I find from the entire record in this case that Respon-
dent's dominant statements and those which were recalled
most consistently and with the greatest clarity by all the
witnesses who testified about the Couch speeches involved
a reference to existing employee benefits, and what would
happen to them in negotiations if the Union were selected
to represent the employees. Although Couch did not
specifically say that existing benefits would be taken away,
he emphasized the possible loss of benefits. Even though he
" In litigation, Respondent also made the assertion that the leaflet was
misleading because it purported to be an official government document.
This was not Couch's point in his speech.
tied this loss of benefits to the onset of negotiations, he did
so in such a way as to suggest that selection of the Union
would likely lead to this result. Thus, he hammered home
his point that once a union obtains bargaining rights
benefits start from zero by waiving a blank sheet of paper.
He predicted that negotiations would last from 6 to 9
months and informed employees that during that period
they would have to forgo any planned or established
program for the improvement of their wages or benefits,
such as the annual wage review which was to take place in
a few months. Finally, the speech was not made in isolation
but in the context of numerous other unfair labor practices
found herein which demonstrated Respondent's propensity
to engage in coercive conduct to defeat the Union.
In these circumstances, I find that the clear implication
of Respondent's speech was that selection of the Union
would result in a loss of existing benefits which would have
to be restored in bargaining. In addition, I find that
Respondent's statements about frozen benefits during
lengthy negotiations had the effect of reinforcing the above
implication and of making clear the futility of selecting a
union which would face the difficulties it predicted in
negotiating a restoration of those benefits with Respon-
dent. As the Board has stated:
While an employer is entitled to tell his employees
that he will bargain hard, Section 8(c) does not protect
the expression of an intention to make bargaining
demands that will place in jeopardy the employees'
existing benefits, where, as here, the clear implication is
that he will make such demands merely because he is
required to deal with a union so that the only way the
employees can be certain of retaining their existing
benefits will be to reject the union. [Textron, supra at
135.]
Respondent's attempt to place Couch's speech on a par
with one considered lawful by the Board in Ludwig Motor
Corp., supra, is not persuasive. That case is distinguishable
in its facts. First of all, the union leaflet which allegedly
prompted Couch's remarks was in no way comparable to
the exaggerated and repeated emphasis by the union in
Ludwig that existing benefits would be guaranteed and
improved upon after bargaining. Thus Couch's remarks
were so misdirected and out of proportion to the union
leaflet to which he referred as to negate any possible
inference that he was simply responding to an exaggerated
or untruthful union position. Secondly, unlike in Ludwig,
Couch did not frequently and emphatically state in his
speech that the Respondent would bargain in good faith.
On the contrary, he made clear to employees that
Respondent's position would be such that negotiations
would take a long time and would place in jeopardy
existing benefits or normal increases. And finally, unlike in
Ludwig, Couch's speech herein was made in the context of
numerous other unfair labor practices, including the
solicitation of grievances and promises of benefit, which, in
my opinion, created an atmosphere of employer coercion
and interference even apart from the Couch speeches.
1154
YORK DIV., BORG-WARNER CORP.
E. Respondent's Contentions Concerning Lack of
Actual Coercion Are Unmeritorious
Presumably in an effort to show that the Respondent's
unfair labor practices did not have an adverse effect on the
election, Respondent also asserts that I should consider
testimony that some employees may not have felt coerced
by the actual interrogations or other conduct of or
statements by Respondent.' 8 It is clear that in assessing
violations of the Act, the question of whether employees
actually felt coerced as a subjective matter is not signifi-
cant; the Board and the courts have made the determina-
tion that certain conduct, as an objective matter, has a
reasonable tendency to coerce in its effect and for that
reason it is prohibited.'9 This objective standard is also
utilized in assessing whether conduct has polluted the
atmosphere for a free election.20 Respondent also cites
cases involving election misconduct which does not violate
Section 8(a)(1) to support its position that subjective
evidence of coercion or noncoercion is relevant or
significant in determining whether an election should be
overturned. Those cases involved employee misconduct
not attributed to either party or employer misconduct
which, although not constituting a violation of the Act,
such as alleged misrepresentation, sometimes results in the
overturning of an election. Those cases are thus distin-
guishable from the instant case where numerous and
serious violations of Federal law were committed by
Respondent's admitted agents.
IV. THE OBJECTIONS TO THE ELECTION
Inasmuch as the objections to the election related to
statements and conduct found to constitute unfair labor
practices, it follows that the election should be set aside
and another one conducted when the Regional Director
determines the time to be appropriate. I so recommend.
CONCLUSIONS OF LAW
1. The Respondent has engaged in various unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Since I have found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of the
Act, I will recommend that the Respondent cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies 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 issue the following recommended:
ORDER2 '
York Division, Borg-Warner Corporation, Madisonville,
Kentucky, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Questioning employees concerning their union mem-
bership, sympathies, or desires.
(b) Promising employees benefits or relief from oppres-
sive working conditions if they abandon support for the
Union.
(c) Soliciting grievances from employees and implying
their resolution in order to discourage support for the
Union.
(d) Threatening employees that bargaining will begin
from scratch or from zero and that benefits will be frozen
during negotiations if the Union is selected as bargaining
representative of the employees.
(e) Requesting employees to remove union buttons and
to wear "Vote No" buttons.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its Madisonville, Kentucky, plant copies of the
attached notice marked "Appendix." 22 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein.
IT IS FURTHER RECOMMENDED that the election conducted
in Case 9-RC-11382 on April 15, 1976, be set aside and
that the Regional Director for Region 9 conduct a rerun
election at a time he deems appropriate.
"I Some evidence was permitted or appeared in the record on this issue,
as well as other issues which Respondent alleges are significant, such as
campaign statements that employees had certain rights which could be
asserted without employer interference and that employees openly talked
about the Union at the plant. None of this evidence negates the fact that
Respondent's agents did in fact engage in conduct which had the tendency
to coerce employees as I have found above.
'I Mon River Towing, Inc. v. N.LR.B., 421 F.2d I. 10 (C.A. 3, 1969):
N. L R.B. v. E. S. Kingsfaord d/b/oa Kingsford Motor Car Co., 313 F.2d 826.
832 (C.A. 6, 1963): N.LR.B. v. Illinois Tool Works, 153 F.2d 811 , 814 (C.A.
7, 1946); G.H.R. Foundry Division, The Dayton Malleable Iron Company, 123
NLRB 1707, 1709(1959).
20 N.LR.B. v. Clearfield Cheese Co., Inc., 322 F.2d 89, 93-94 (C.A. 3.
1963).
21 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.
22 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."
1155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and we are ordered to post this notice and comply
with what it says.
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
mutual aid or protection
To refrain from any and all of these things.
WE WILL NOT do anything, either directly or
indirectly, that interferes with these rights.
WE WILL NOT question employees concerning their
union membership, sympathies, or desires.
WE WILL NOT promise employees benefits or relief
from oppressive working conditions if they abandon
support for the Union.
WE WILL NOT solicit grievances from employees nor
imply their resolution in order to discourage support
for the Union.
WE WILL NOT threaten employees that bargaining
will begin from scratch or from zero and that benefits
will be frozen during negotiations if the Union is
selected as bargaining representative of the employees.
WE WILL NOT request employees to remove union
buttons and to wear "Vote No" buttons.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed by Section 7 of the Act.
YORK DIVISION, BORG-
WARNER CORPORATION
1156