Borg Warner Corporation

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