128 NLRB 1035
Borg-Warner Controls
BORG-WARNER CONTROLS, BORG-WARNER CORPORATION 1035
to 50 to 60 employees."
Thus, under the General Extrusion formula,
less than 30 percent of the complement was employed in the unit when
the new contract in question was executed.7
While General Extrusion
speaks in terms of the percentage of expansion as of "the time of the
hearing," it is only the natural and reasonable construction of that rule
to apply the expanding unit formula in the present situation as of
the time the new contract was executed .8
As of such time, it is found
that the original, April 28, 1958, contract would not have operated as
a bar if a petition were then filed for a representation election.
Ac-
cordingly, we conclude that the new contract of May 26, 1959, is not
subject to the premature extension rules of the Deluxe case, and that it
stands as a bar to the petition filed herein.
We shall therefore dismiss
the petition.
[The Board dismissed the petition.]
MEMBER RoDGERS took no part in the consideration of the above De-
cision and Order.
The evidence shows that from February to July 1959 , employment was subject to
wide fluctuations, but the average production and maintenance complement during this
period was 69 employees.
7 Although it does appear that at least truckdrivers were added , the record does not
clearly show the extent of change in job classifications.
A finding as to this factor is
unnecessary in view of the result reached herein.
s In March and April
'1959, representation petitions in Cases Nos . 2-RC-9839 and
2-RC-9892 had been filed by two unions , not here involved , which they withdrew for
unexplained reasons before the hearing scheduled in those eases on May 12, 1959.
Counsel for the Intervenor testified that he was
'advised by the Board agent in connec-
tion with those cases that the April 28, 1958, contract might not be a bar because of the
expanded unit.
As a consequence after the withdrawal of those petitions , the Employer
and the Intervenor executed the new contract of May 26, 1959 , inter alia, to correct the
deficiency.
Borg-Warner Controls, Borg-Warner Corporation ' and Inter-
national Union, United Automobile, Aircraft and Agricultural
Implement Workers of America (UAW), AFL-CIO, and its
Local 509.
Case No. 21-CA-352,9.
August 06, 1960
DECISION AND ORDER
STATEMENT OF THE CASE
This proceeding was instituted by the filing of charges on April 13,
1959, alleging violations of Section 8 (a) (1), (3 ), and (5 ) of the Act.
1 Following the close of the hearing, the Respondent stated in its brief in support of
exceptions to the Intermediate Report that Borg-Warner Controls, a division of Re-
spondent, now operates the plants and facilities formerly operated by BJ Electronics,
which was a part of Byron Jackson Division of the Respondent and that BJ Electronics
is no longer in existence .
These plants and facilities are those at Santa Ana, California,
involved in the instant proceeding .
We hereby order the record reopened for the purpose
of incorporating therein and do order incorporated therein a stipulation of the parties,
128 NLRB No. 119.
1036
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequent thereto, amended charges were filed, all of which were
duly served on the Respondent.
On July 31, 1959, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for the Twenty-first Region,
issued his complaint and notice of hearing, which were duly served
upon the Respondent and the Union. The complaint alleged that the
Respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (a) (1), (3),
and (5) and Section 2(6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act 2 Pursuant to the
notice, the hearing commenced in Los Angeles, California, on Sep-
tember 28, 1959, before a Trial Examiner of the National Labor Re-
lations Board.
The hearing was duly held on various dates thereafter
in Los Angeles and Anaheim, California, concluding on October 26,
1959.
During the course of the hearing, various rulings were made by the
Trial Examiner.
The Board 3 has reviewed these rulings and finds
that no prejudicial error was committed.
The rulings are hereby
affirmed.
All parties were afforded an opportunity to, and the Re-
spondent and the General Counsel did, file briefs with the Trial
Examiner.
On February 4, 1960, the Trial Examiner issued his Intermediate
Report, copies of which were served on the parties, in which he found
certain violations of Section 8(a) (1), (3), and (5) of the Act and
dismissed other allegations of the complaint.
He found, inter alia, that the model shop layoff of November 17,
1958, was discriminatory, basing his finding on two reasons : first, an
admission by Industrial Relations Manager Rogers to employee
O'Banion, referred to hereinafter, that the layoff was to "get" union
adherents Felder, Euske, and Moore and statements by Rogers to
Supervisor Evans in early 1959, that this layoff had something to do
with union activity and Rogers' statement to Supervisor Sykora, in
1959, that Haines, a nonunion adherent, was caught "in the middle of
the layoff" and that Rogers had nothing against recalling him; sec-
ondly, that Respondent alleged but did not prove economic motivation
for the layoff.'
He found further, inter alia, that Respondent failed
executed on June 13 , 190, that the above change in operations of the above plants and
facilities commenced on March 4 , 1960.
Accordingly, we find that on and after March 4,
1960, the above newly named division of Respondent became the successor to BJ Elec-
tronics, as a part of Respondent, and we shall frame our Order against it
2 The action of the Trial Examiner in granting the motion of the General Counsel to
strike from the complaint the name of Velma Vinzant and to correct the name of Dors
Lan-Franco to Doris Lan Franco-Callaghan and other various minor corrections were
made without objection.
They are affirmed , pro forma.
3 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Leedom and Members Bean and Fanning].
' We agree with the General Counsel that it is clear from the Intermediate Report that
the Trial Examiner inadvertently omitted the word "not" from his finding that the
BORG-WARNER CONTROLS, BORG-WARNER CORPORATION 1037
to recall Gaynell J. Marley because she was a union member, not-
withstanding that Shepherd, who signed the decertification petition
in 1958, termed her work highly unsatisfactory and testified she could
not pass a physical examination. The Trial Examiner concluded there
was not proof by Respondent that her incapactiy continued until the
time of her layoff and at all times thereafter when Respondent was
hiring employees.
The General Counsel and the Respondent filed exceptions to por-
tions of the Intermediate Report, together with supporting briefs.'
The General Counsel excepted, inter alia, to the failure of the Trial
Examiner to find all the allegations of interference, restraint, and
coercion and of refusal to bargain were supported, his failure to find
that the termination of Warren Haigh and demotion of Francis Cal-
laghan were discriminatory, to his failure to find that violations of
8(a) (3) were also violations of 8(a) (5), to his failure further to
recommend that the Respondent make whole Doris M. Lan-Franco
Callaghan for loss of earnings suffered by the failure of Respondent to
reemploy her because of her union activity; and, lastly, his action in
recommending that the complaint be dismissed in all respects other
than the violations found.
The Respondent excepted, inter alia, to
the Trial Examiner's rejection of testimony by Supervisors Coonard,
Guibert, and Apodaca that employees were denied recall because of
reasons unrelated to union activity.
We accept the credibility findings of the Trial Examiner inasmuch
as they were made on observation of the demeanor of witnesses at the
hearing.
Because of our extensive disagreement with the form and
substance of the Intermediate Report, in all other respects, we make
our own findings, conclusions, and order, as follows :
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, in its answer to the complaint, admitted that it is
an Illinois corporation engaged at the plant here involved at Santa
Ana, California, in the development and manufacture of electronic
test equipment and instruments, that it annually ships products valued
in excess of $50,000 directly to points otuside the State of California.
In its answer it denied, however, the conclusionary allegation of legal
jurisdiction.
We agree with the Trial Examiner that, on the basis of
the foregoing, the Respondent is engaged in commerce within the
reduction in force at the model shop under the aegis of Industrial Relations Director
Rogers was done in order to effect an economy.
We accordingly correct his report.
However, we find, hereinafter, merit in the exception of Respondent to his above finding.
5 The Respondent's request for oral argument is denied as the record, including the
briefs, adequately presents the issues and the positions of the parties.
1038
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of the Act.' As the direct outflow from Respondent's plant,
in excess of $50,000 per year, meets the jurisdictional standards under
which the Board will assert jurisdiction over nonretail enterprises,
we find it will effectuate the purposes of the Act to assert jurisdiction.'
IT. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America (UAW), AFL-CIO, and its Local
509, are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
Background of Respondent's Efforts To Oust the Union and the
Appropriate Unit
Following Respondent's opening of its new plant at Santa Ana,
California, the
Union was successful in organizing Respondent's
employees, over Respondent's opposition, and shortly thereafter won
an election and was certified by the National Labor Relations Board
on December 26, 1956,8 in the following unit, which we find herein to
be an appropriate unit :
All production and maintenance employees, shipping and receiv-
ing employees, and truckdrivers at the Santa Ana, California,
plant of Borg-Warner Corporation, excluding office clerical and
plant clerical employees, technical and professional employees,
guards, and supervisors, as defined in the Act.
A collective-bargaining agreement was subsequently entered into
between the Respondent and the Union 9 for the period from June 3,
1957, to June 2,1958, with automatic renewal thereafter unless appro-
priate notice was given by either party.
During negotiations for this
contract the Respondent refused to agree to a duration of over 1 year,
even though the Union asked no additional wage increase for the
longer term.
At the final meeting which preceded the execution of
the agreement, International Union Representative Chiakulas asked
C. H. Mazro, Respondent's then chief negotiator, why Respondent
would not agre eto a longer contract.
Mazro replied that Chiakulas
knew why. Thereafter, a decertification movement was promoted by
employees, including Les Shepherd who had been demoted from super-
visor to leadman, and a "Vote-No" committee which included employee
Annie Burns.
Respondent again openly showed to its employees its
As the Respondent's direct outflow is more than de minimia, we find that the Board
has legal jurisdiction.
National Hotel Company , 127 NLRB 144.
v Siemons Mailing Service, 122 NLRB 81.
8 The certification was issued in the name of the International Union.
9 The agreement was signed in the name of the International Union by its officers on
behalf of itself and the Local Union involved herein.
Certain members of the negotiating
committee who signed the agreement were members of the Local Union.
BORG-WARNER CONTROLS, BORG-WARNER CORPORATION
1039
opposition to the Union. It provided the "Vote-No" committee with
bulletin board space in the plant, and through Industrial Relations
Manager Rogers suggested to small groups of employees how they
could "escape" from the Union under the terms of the foregoing
agreement.
Rogers promised Neil Curtise, a former union steward,
"a surprising amount of good" from Respondent if he changed his
position from the Union to the Respondent; Rogers also told him that
Respondent intended to create a sort of employee-management or
grievance committee, that some employees were going to be asked to
serve, and that Curtise and Charles Euske were possible candidates.
Supervisor Watson, in April 1958, told employee James Martin that
the employees would be better off with the company union or no union
at all.
Supervisor Guibert told employees that they were "very
foolish" to support the Union. Supervisor Bullard, on several occa-
sions, questioned Doris Callaghan as to why employees "insisted upon
having the Union" and blamed it for Respondent's being unable to
grant raises.
On March 4, 1958, Shepherd filed a decertification peti-
tion and on March 12, 1958, Respondent filed an RM petition. The
subsequent election was won by the Union and certification was issued
by the Board in the same unit on May 12, 1958.10
During the continuation of Respondent's opposition to the Union,
bargaining sessions took place following the Union's election victory,
commencing May 9, 1958. At the first meeting, Respondent offered to
extend the contract for 1 year until June 2, 1959, stating it was in no
position to talk about an increase in wages and fringe benefits re-
quested by the Union.
On May 12, 1958, the Union detailed the
changes it wanted in nonwage provisions. On May 19,1958, Respond-
ent submitted a tougher contract than the existing one, including
provisions for loss of seniority after 6 months, instead of 1 year as
provided in the existing contract. Subsequent meetings were held on
May 22, 26, and 28, 1958.
At the last one the Union proposed an
extension of the existing contract to allow the parties to work out
their differences.
Unetic, Respondent's spokesman, stated that unless
the May 19, 1958, proposal of Respondent was accepted, the contract
would expire on June 2 and Respondent would show their people
they had nothing to fear from Respondent simply because they didn't
have a union. Slater, the union spokesman, reminded Unetic that
Respondent would still be under an obligation to bargain with the
Union.
Respondent asked the Union to submit the May 19 proposal
to its membership but Slater declined because the parties were so far
apart.
The contract between the parties expired on June 2, 1958, in
accordance with notices which had been previously given by the par-
ties before commencement of negotiations.
io In this instance the certification was issued to the Local Union as an affiliate of the
International Union.
Shepherd was restored to supervisor status on July 21, 1958.
1040
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Immediately thereafter, Respondent sent a series of letters to em-
ployees, between June 3 and 12,1958, notifying them that the contract
was no longer in effect and that questions regarding wages, working
conditions, and other matters arising from employment, should be
taken up with supervisors; that union stewards would no longer be
recognized but that Respondent would meet with chosen representa-
tives of the Union on formal grievance matters; and that job posting
and seniority, as far as practicable, would continue to be observed.
No mention was made of continuance of provisions under which sen-
iority would be terminated after 1 years of layoff, or other conditions
under which seniority would be lost.
Respondent also disclaimed
any intention of cutting wages but registered vigorous opposition to
the bumping provisions in the expired contract.
On or about June 26, 1958, the Union submitted the May 19 pro-
posal to its membership and it was rejected.
Respondent sent a letter
to its employees on July 7, 1958, notifying them of meetings subse-
quent to June 25, 1958, in which it told the Union that its May 19
offer was still open despite rejection by the membership.
Respond-
ent, thereafter, submitted a changed proposal on seniority according
to which the strict seniority provisions of the expired contract would
be replaced by considerations of job performance as well as length
of service applied to layoffs and recalls.
The Union receded on its
demands but the parties remained deadlocked in subsequent nego-
tiating session.
The foregoing is only stated as background of Re-
spondent's union animus and motivation, as it occurred prior to
October 13,1958, the beginning of the 10 (b) period.
Interference, Restraint, and Coercion
In December 1958, on the occasion of employee Martin's visit with
Industrial Relations Manager Rogers to obtain an extra holiday or
a long Christmas weekend for other employees, following Respond-
ent's solicitation of employees' views, Rogers engaged in a conversa-
tion about the Union, mentioned organization of a company union,
saying he thought people would be better off if Martin and others
got a few good members in responsible positions, and that the company
would come across with more benefits if it weren't for the outside
Union.
Rogers told employee Francis Callaghan on March 23, 1959,
following his requst for a pay increase, that after June 1959 a company
union would be formed which would have a committee to deal directly
with management and he would not mind having him on the com-
mittee.
Supervisor Watson told Martin in April 1959 that the em-
ployees would be better off with a company union. The foregoing all
adds up to advocacy of a company union by Respondent, as the Trial
Examiner found.
BORG-WARNER CONTROLS, BORG-WARNER CORPORATION 1041
Rogers' statement to Francis Callaghan, supra, also included the
statement that if he stayed with Respondent until June 1959, he would
be much happier with the prospects at the company because the Union
would be out and the company could then show the people what it
could do. Supervisor Shepherd answered employee Werton's inquiry
about a possible pay raise in January 1959, by saying : "Well, once
we get the Union out of here, we will get an increase and sick leave.
... As long as we continue under this deadlock with the Union we
just have to keep on going the same as we are now."
We agree with
the Trial Examiner that the foregoing are promises of benefits for
refraining from union activity.
On November 17, 1958, Rogers told employee O'Banion, after his
layoff from the model shop, that the company would do nothing that
the union would draw credit for, and that if at all possible the com-
pany was going to break the Union.
We agree with the Trial Ex-
aminer that the foregoing constitutes a threat to break and get rid of
the Union.
In May of 1959 Supervisor Watson asked employee Howard whether
he thought that by being on the union negotiating committee he
could get a raise.
He had just become a member of this committee.
In July of 1959 Watson told Howard "Gee, I hope, I wish you hadn't
got into this mess, I could have gotten you a raise by now."
We agree
with the Trial Examiner that Watson was equating "mess" with
Howard's union activity, as there is no other explanation in the
record and it can reasonably be inferred that Watson was referring
to Howard's becoming a member of the negotiating committee.
We
agree with the Trial Examiner that the foregoing attributes the fail-
ure to get a raise to union activity.
On November 17, 1958, Rogers stated to employee O'Banion that
the layoff in the model shop was in order to get rid of union adherents,
Felder, Euske, and Moore.
We agree with the Trial Examiner that
this statement attributes layoff of employees to union activity. In
late October 1958, within the 10(b) period, Rogers told employee
Erickson that the failure to recall Rivera, a truckdriver, "could have
possibly have something to do with union activity, but don't quote
me, I will deny it."
On May 22, 1959, Rogers told Erickson that the
reason people were not promoted into the engineering section from the
bargaining unit was that the Company did not want to contaminate
or infiltrate union people within the engineering section.
We find
merit in the exceptions by the General Counsel to the failure of the
Trial Examiner to find that these constituted violations.
We reject
the finding of the Trial Examiner that the statement about Rivera
only reflected possibilities and lack of knowledge on the part of
Rogers and that the statement about the engineering section was not
covered by the paragraph in the complaint which alleged only that
1042
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharges, layoffs, refusals to recall, and demotions were attributed
by Respondent to union activity.
We find that Rogers' statement
regarding Rivera was intended to give an employee the impression
that the layoff was for union activity, particularly in the light of his
second and later statement to the same employee regarding promo-
tions into the engineering section, which we find attributes lack of
promotions from the bargaining unit into the engineering section to
union activity.
In any event, the statement about Rivera had the
effect of leading an employee to believe his layoff was for union
activity.
Inasmuch as Rogers' statement about promotions was fully
litigated, we conclude that it is entirely proper to find Rogers unlaw-
fully attributed failure to make promotions to union activity."
We find that the foregoing constitutes interference with, restraint,
and coercion of employees in the exercise of their rights guaranteed
in Section 7 of the Act, in violation of Section 8(a) (1) of the Act.
While the above actions of Respondent have a bearing on other allega-
tions of the complaint which involve independent violations of
8(a) (3) and (5) of the Act, we do not agree with the Trial Examiner
that the conduct noted above is such as to require finding, as he did,
a violation of 8(a) (5).12
We find no merit in the exceptions of the
General Counsel to the Trial Examiner's failure to find also a viola-
tion of 8 (a) (3) by the above-mentioned conduct.13
We do not agree that Rogers' statement to Erickson in October
1958 was unlawful advocacy of a company union because the General
Counsel has not proved it was made within the 10 (b) period. Like-
wise, we do not agree that Rogers' statement to Francis Callaghan
in the spring of 1959 that there would be more grievances because
there would be no Union, constituted advocacy of a company union
inasmuch as it was at the most a statement of factual effect from a
predicted event, without relation to advocacy of a company union.
We find merit in the exception of the Respondent to the finding of
the Trial Examiner that its announced intention not to recognize union
stewards in June of 1958 constituted a violation of the Act.
As such
statement was made prior to the 10 (b) period and there is no evidence
of a continuing refusal within the 10 (b) period, rather, evidence that
"Capitol Fish Company, 126 NLRB 980
i3 The cases cited by the Trial Examiner in his Intermediate Report to support his
8(a) (5) finding are not in point since they either involve only 8(a) (1) or
( 5) violations
separately or relate to conduct which is clearly 8 ( a)(5) independently.
In the only case
cited which involves a finding of both S ( a)(1) and (5), Ohio Hoist and Manufacturing
Company, 108 NLRB 561 , the Board affirmed the finding of the Trial Examiner as it
involved the Respondent's unilateral granting of a wage increase
such conduct clearly
involved an independent 8(a)(5).
13 Wbile the Trial Examiner may have inadvertently , as contended by the General
Counsel , failed to make an 8(a ) ( 3) finding, we find that such finding is not required'here
in
view of other 8 ( a) (3)
findings
made independently
hereinafter
Transamerican
Ireight Lines, Inc. 122 NLRB 1033, cited by the General Counsel in his brief in support
of exceptions to the Intermediate Report , involved only 8 (a)(3).
To the extent that
the findings herein would also be held to be 8(a ) (3), they are discussed hereinafter
BORG-WARNER CONTROLS, BORG-WARNER CORPORATION 1043
Respondent on one occasion dealt with a union steward on a grievance
within the 10(b) period, we find that the General Counsel has failed
to prove this allegation.
In the absence of exception by the General Counsel, we adopt, pro
forma, the finding of the Trial Examiner that no violation occurred
by reason of alleged statements by Supervisors Ruby, Evans, and
MacDonald attributing discharges, layoffs, and failures to recall to,
union activity.
Discriminatory Separations and Failures To Recall
Layoffs in the model shop: We agree with the Trial Examiner that
the method of selection of layoff of employees in the model shop was
discriminatory but do not rely on his further finding that the layoff
itself was discriminatory because there was no economic motivation.
Although recognizing that the change in management of Respondent
which occurred just prior to the layoff was due to poor economic condi-
tions, that Respondent generally effected economics at the time of the
layoff and an order was issued to effect a 50-percent reduction of model
shop personnel, the Trial Examiner found it incredible that Respond-
ent could have effected an economy by the layoff because employees
laid off were hired by the firm to which the model shop work was
thereafter contracted out at the same rate of pay they had received
with Respondent.
However, Manager Turner of the model shop
testified, without contradiction, that a savings was effected of from
$1.15 to $1.65 per hour by contracting out.
However, the record is
clear that the device of job seniority was used to "get" certain union
adherents. In addition to Rogers' statement to O'Banion on November
17, 1958, that the layoff was made to get Euske, Felder, and Moore,
Rogers made the statements to Supervisors Evans and Sykora, re-
ferred to by the Trial Examiner, supra.
His statement to Sykora that
Haines was caught "in the middle" of the layoff is particularly reveal-
ing in the light of the evidence in the record that Haines' seniority
date of April 1, 1957, was junior to both Moore's seniority date of
September 11, 1956, and Felder's seniority date of November 1956.14
The device of job seniority was adequate to "get" Felder and Moore
if Haines was also included, since these three were the only class A
experimental machinists who were laid off.
Also, in order to "get"
Euske, the Respondent had to lay off O'Banion, since both were class
B experimental machinists with the same seniority date, and they
were the only employees in this job.
There were retained in employ-
ment two nonunion adherents in the class A job, two leadmen, and
14 Respondent asserts in its brief certain alleged coercive statements attributable to
Rogers were made only to union adherents .
It does not and cannot assert, however,
that other like statements were made only to such adherents , as the statements referred
to above to Supervisors Evans and Sykora were from testimony of Evans, who was called
as a witness by the General Counsel, and of Sykora, who was Respondent 's own witness-
1044
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonunion adherents retained in lower rated jobs which were not af-
fected by the layoff.
Respondent did not give any of the laid-off
employees an opportunity to bump into the lower rated jobs, as pro-
vided in the expired contract, and the employees were subsequently
transferred to the production department in the plant, when the re-
maining model shop operations were transferred to that department.
In view of the Respondent's failure to permit bumping, the statements
by Rogers, supra, which are uncontradicted and based on credible
evidence we agree with the Trial Examiner that the layoffs of Felder,
O'Banion, Euske, Moore, and Haines were made for reasons related
to union activity of Felder, Euske, and Moore.15
Failure to recall employees: We agree with the Trial Examiner
that the union animus of Respondent, revealed in the 8( a) (1) find-
ings, particularly Rogers', admission that he was out to break the
Union, and the 8 (a) (5) violations hereinafter found, establish a
general motivation of Respondent to rid itself of a union majority.
Since, however, the record shows that Respondent failed to recall
nonunion adherents as well as union adherents and that in certain
job classifications respondent hired no one since the layoff of em-
ployees, it was incumbent on the General Counsel to show by a pre-
ponderance of evidence on the record as a whole that in the case of
each alleged discriminatee the reason for failure to reemploy him in
his former or another job, in which Respondent was hiring employees,
was because of his union activity. It is not enough, as the Trial
Examiner stated, for the General Counsel to show that jobs were
generally available in the spring and summer of 1959 and that em-
ployees who were not recalled were union adherents. The record does
not support the general finding which the Trial Examiner made that
in every instance Rogers made the decision whether to reemploy the
alleged discriminatee.
However, the record shows that the Respond-
ent, in the regular course of itsbusiness, provided its supervisors with
termination questionnaires which they filled out.
These provided a
record of reasons for termination and certain rating of individual
employees.
Respondent did not introduce such record in evidence.
In those cases where the General Counsel made out prima facie cases
of violation, it was incumbent on the Respondent to go forward with
ss We agree with the Trial Examiner that Moore refused reinstatement on April 27,
3959 , and that Haines returned to work on or about the same date , also, that Euske
and Felder were never offered recall
Although O'Bamon testified that shortly after
the layoff he obtained another job and would not go back to Respondent unless he was
offered a better paying job, he was not offered a job at any time by the Respondent.
We
find that his statement to Rogers shortly after his layoff may have been made in the
heat of dissatisfaction with his treatment by Respondent and may not reflect his desire
with respect to reemployment
We, therefore , conclude that his statement is insufficient
to indicate an unequivocal resolve not to accept reinstatement .
If in fact O'Banion does
not desire reinstatement, such may be considered at the compliance stage of this proceeding.
Arista Service, Inc, 127 NLRB 172
We do not rest our conclusion , as did the Trial
Examiner, solely on Respondent's failure to offer him a job in an unequivocal manner.
BORG-WARNER CONTROLS , BORG-WARNER CORPORATION 1045
evidence showing reasons for failure to rehire unrelated to union
activity.
In the absence of evidence in support of dismissals unrelated
to union activity, it can reasonably be inferred that the Respondent's
failure to produce the questionnaires was because they contained evi-
dence adverse to the Respondent' s defense.
Respondent laid off 28 electronic assemblers C and 6 electronic as-
semblers B on various dates antedating the 10(b) period.
Most of
them were laid off in August 1958, when Respondent's Government
business looked unpromising.
When an upturn in its Government
business occurred in the spring and summer of 1959, Respondent
placed advertisements for electronic assemblers without specifying
the class of work desired.
This was in line with Respondent's policy
of trying out both classes of employees on all electronic assembly jobs
to see how versatile they were, and it can reasonably be inferred from
the record that Respondent obliterated the distinction between these
classes of jobs.
The Respondent stipulated that the advertisements
were for jobs in which laid-off employees previously worked.
Re-
spondent subsequently hired 65 employees to fill the jobs of those
laid off.16
While the ratio of recalled nonunion adherents to laid-off
nonunion adherents was five to six, the ratio of union adherents re-
called to laid-off union adherents was one to over five. In view of
the need of the Respondent for employees in these jobs and the dis-
proportionately fewer union adherents recalled than nonunion ad-
herents, and lacking any evidence which was credited by the Trial
Examiner that they were refused recall because of reasons unrelated
to union activity, we agree with him that the refusal to recall em-
ployees in these job classifications, who were union adherents for
whom the Respondent checked off union dues, was because of their
union activity.
Accordingly we find violations in the cases of Dorothy
Brink, Juanita Cast,17
Mary Corcoran, Kay Dye, Renee Stan-
wick,'8 Virginia Gauthier, Irene Gorake,19 Doris M. Lan-Franco
ii Respondent in its post-hearing brief asserts that the advertisements for electronic
assemblers are not evidence that any applicants were hired for work which had been done
by electronic assemblers B.
We find that these advertisements support other evidence
in the record that Respondent obliterated distinctions between class B and class C jobs.
We find accordingly, Respondent hired replacements in both classes , notwithstanding its
designation of replacements as class C only.
29 Contrary to Respondent 's assertion in its post-hearing brief that Cast was an
electronic assembler B and that no one was hired in this classification , the pertinent
exhibits listing employees and their job classifications and the stipulation entered into
between the parties show her to be in class C. She rejected an offer of a temporary job,
in an oral conversation with Rogers following receipt of a recall telegram on May 4, 1959.
We agree that her failure to reply to a subsequent recall telegram did not constitute a
refusal of recall
we find that the Respondent did not satisfy the burden of going
forward to show that it would have offered her a permanent job.
>e Respondent offered as a defense to its failure to recall Dye and Stanwick that they
were electronic assemblers B and no one was hired in their classification .
For reasons
stated supra, we reject this contention.
li Contrary to Respondent 's assertion in its post-hearing brief that Gauthier and
Goracke were precision assemblers C, a stipulation between the parties and the prevailing
577684-61-vol. 128-67
1046
: DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Callaghan, Betty Rector, Leroy Reno '20 Evelyn Shanks, and Dolores
Wells.
Patricia Gallup, who was hired on November 27, 1956, and laid off
on January 6, 1958, was the only welder B who was laid off. She was
a union adherent for whom the Respondent checked off union dues
and her layoff violated the terms of the collective-bargaining agree-
ment with the Union, as there were two nonunion adherents who were
retained in her job classification who had less job seniority and the
contract provided for layoffs by job seniority.
While we may not
base our finding of an unfair labor practice on the violation of the
contract, which occurred prior to the 10(b) period, the foregoing
evidences Respondent's animus against her as a union adherent.
On
the basis of this animus, the lack of any showing that Respondent
failed to recall nonunion adherents in her job, and our general find-
ings, supra, with respect to the failures to recall employees, we agree
with the Trial Examiner that the failure to recall her was motivated
by union activity, absent any showing by Respondent that there was
any other reason why she was not recalled 21
Gilbert Roth, who was hired on July 2,1956, and laid off on August
15, 1958, was the only electronic mechanical assembler B who was laid
off.
He was a union adherent for whom the Respondent checked off
union dues and employees were hired in this job classification begin-
ning with November 6, 1958.
Respondent offered no defense to its
evidence in the record shows that they were electronic assemblers C and not precision
assemblers C.
We need not, therefore, consider Respondent's defense that no precision
assemblers C were hired.
° Doris Callaghan, Rector, and Reno were electronic assemblers B to whom a recall
telegram was sent to their last address of record with Respondent on September 21, 1959.
We find, as did the Trial Examiner, that Reno was discriminatorily refused reinstate-
ment for some period of time prior to September 21, 1959.
To be consistent, the Trial
Examiner would have had to make the same finding with respect to the others, as the
same telegram was sent in all cases , and as the Trial Examiner erred in finding that the
telegram to Callaghan was sent to the wrong address inasmuch as Callaghan did not
notify Respondent of her change of address when she was married to Francis Callaghan.
Accordingly, we find that all three were discriminatorily refused reinstatement only for
sometime prior to the above date, and not without limitation as the Trial Examiner found
in the cases of Callaghan and Rector.
We agree with the Trial Examiner that the
beginning of the period of time should be determined in enforcement proceedings.
n Contrary to the assertion in Respondent 's post-hearing brief that General Counsel's
Exhibit No . 43 contains uncontradicted evidence that since Gallup's layoff no one was
hired in her job, it shows that Allen C Brown and Darrell A. Opp were hired as
welders B on October 7 and December 1958 and both were subsequently terminated at a
date unspecified in the record .
Further, Respondent's Exhibit No 8, which was prepared
subsequent to General Counsel's Exhibit No. 43, shows that C. Reed was hired as welder
B on May 18 , 1959, and was then employed .
In view of the foregoing , Respondent's
further assertion in its brief that Gallup had been laid off for more than 12 months
without an opening or opportunity for recall in her work classification is not supported
We agree that Respondent's alleged reason for not recalling her was that she had been
on layoff for over 1 year and lost her seniority, in accordance with the provisions of the
expired union
contract,
should not be credited .
This provision was not followed by
Respondent in the cases of nonunion adherents Douglas and Donald Reid
Respondent
was still attempting to locate the former to recall him at the time of the hearing.
This was over 1 year after his layoff
Respondent continued the latter on reserved
recall status after more than 1 year of layoff.
BORG-WARNER CONTROLS, BORG-WARNER CORPORATION 1047
failure to recall him 22
On the basis of of our general findings, supra,
with respect to the failures to recall employees, we agree with the Trial
Examiner that the failure to recall Roth was motivated by union
activity, absent any showing by Respondent that there was any other
reason why he was not recalled.
We find that the foregoing constitute discrimination in terms and
conditions and tenure of employment of employees to discourage
union activity in violation of Section 8(a) (3) and interference, re-
straint, and coercion of employees in violation of Section 8 (a) (1) of
the Act, as found by the Trial Examiner.
We find no merit in the
exception of the General Counsel to the failure of the Trial Examiner
to find that the foregoing also constitute violations of Section 8 (a) (5).
We find no violations in the cases of Alice Creach, William Burns,
Gladys McKay, William Nelson, Donald Reid, and Douglas Reid, and
we agree with the findings of the Trial Examiner that the basic
premise of union activity at the time of their layoffs was lacking.
The
General Counsel has not excepted to these findings.
We find merit in the Respondent's exceptions to the failure of the
Trial Examiner to find that Julia Schneeweis was a nonunion ad-
herent and to dismiss the allegation of discriminatory refusal to
rehire in her case. It was not incumbent on the Respondent, as the
Trial Examiner apparently thought, to show that the Julia Schneeweis
who signed the decertification petition was not a different person from
the alleged discriminatee.
We also find merit in Respondent's ex-
ception to the Trial Examiner's failure to find that the discharge of
Warren Haigh was not discriminatory inasmuch as he was not a union-
adherent at that time.
We find merit in the exceptions of Respondent to the failure of the
Trial Examiner to dismiss the allegations of the complaint with re-
spect to Mary Bergeson, precision test helper, Neal R. Curtise, electro-
mechanical assembler A, and Ben Monson, precision assembler A,
as there is no evidence that any employees were hired in their job
classifications since their layoff 23
We affirm the Trial Examiner's findings of no violation in the cases
of Janice Dickerson, Febra Peterson, and Frank Kolosna. The Gen-
eral Counsel took no exception to the findings, rebutting the prima
9 Contrary to Respondent' s assertion in its post-hearing brief that the first hire in
Roth's classification occurred in September 1959 as shown by General Counsel's Exhibit
No. 43, this exhibit shows that George W. Clark was hired in this classification on
November 6, 1958, and sometime subsequent terminated at a date not disclosed in the
record.
Joseph G Wolfe, Kenneth C Lambert, and Franz W. Saeger were hired on
December 8, September 1, and 28, 1959, and were still in Respondent's employ.
' While Monson was refused a job by Respondent in response to referral from an
employment agency following an advertisement for "precision assemblers," on October
29, 1958, the record does not show in this instance that Respondent obliterated job
classes and shows that Respondent hired precision assemblers C but no precision assem-
blers A
We find that the General Counsel has not proved by a preponderance of evidence
on the record as a whole that there was a refusal to rehire him because of his union
activity, although he was a union adherent for whom Respondent checked off dues.
1048
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facie case, that the recall telegram was sent to Dickerson's last address
of record on May 4,1959, that Peterson refused reinstatement on May
28, 1959, and that Kolosna refused reinstatement on or about January
8,1959 24
We find, on balance, no merit in the exception of the General Counsel
to the failure of the Trial Examiner to find that the demotion of
Francis Callaghan was motivated by reasons of his union activity.
He was one of the two experimental machinist A leadmen who sur-
vided the model shop layoff and was the only union adherent to sur-
vive the layoff. Supervisor Sykora testified that he was responsible
for his demotion on May 29, 1959, in which he suffered a loss of pay
approximating 20 cents per hour, because he had no employees to
lead.
It was also undisputed that Rogers advised against demoting
him because of his union activity. In view of the foregoing testimony
credited by the Trial Examiner, the fact that nonunion adherents
were also demoted from leadmen positions and other economies were
effected by Respondent at the time we agree with the Trial Examiner
that there is at most only a suspicion that the demotion was because
of his union activity and the General Counsel failed to prove a viola-
tion by a preponderance of the evidence on the record as a whole 25
We find merit in Respondent's exception to the failure of the Trial
Examiner to dismiss the allegations of the complaint with respect to
Gaynell J. Marley, general helper.
While she was a union adherent
for whom Respondent checked off union dues and male employees
were hired in her job subsequent to her layoff, Supervisor Shepherd
testified without contradiction that she was not recalled because her
work was highly unsatisfactory and she could not pass a physical
examination.
As the Trial Examiner did not discredit Shepherd's
testimony and we are persuaded that her physical condition might
well have been the reason for her not being recalled, particularly as
no females were hired in the work since her layoff, we find that Re-
spondent has rebutted the General Counsel's prima facie case.
24 In the case of Kolosna we do not agree with the rationale of the Trial Examiner
that a refusal * of 'a job on the night shift supported his finding of no discrimination
However, we find that the General Counsel failed to prove by a preponderance of evidence
that there was a discriminatory motivation here because the record shows that he
refused an offer of a permanent day job on or about January 8, 1959.
25 Member Fanning dissents from this conclusion.
Callaghan was a member of the
union negotiating committee and the union designee to the safety committee. In March
1959 he was told by Respondent that he would be better off once the Union was out.
Respondent also suggested that Callaghan would be acceptable to Respondent as a mem-
ber of the employees' committee of,a company union
Callaghan rejected these advances
and, instead, became active on behalf of the Union.
His demotion on May 29, 1959, fol-
lowed
No contention is raised as to Callaghan's competence It is argued that
Callaghan's pay was reduced because at the time of his demotion he had no employees
to lead.
However, the record shows that on October 21, 1959, the Respondent employed
two production storekeeper leadmen and but one production storekeeper
Obviously, one
of these leadmen had no employee to lead. In view of the substantial evidence that
Respondent was determined to break the Union and specinc evidence of promises made
to Callaghan, Member Fanning must conclude that his demotion was for discriminatory
rather than economic reasons.
BORG-WARNER CONTROLS, BORG-WARNER CORPORATION 1049
Refusals To Bargain
While negotiations continued after October 13, 1958, Rogers and
supervisors of Respondent were engaging in conduct which we have
found to be 8(a) (1).
As a result of deadlocked bargaining sessions
Respondent made a "final" offer to the Union on December 18, 1958.
It was "tougher" than any of Respondent's earlier offers as to layoffs
or recalls, and particularly in that it would give Respondent the right
to subcontract out work without restriction. Job performance would
also take precedence over length of service except where in the judg-
ment of Respondent the factors were substantially equal as between
two or more employees. Respondent continued to insist on a June 2,
1959, termination date, in response to the Union's willingness to recede
further and accept the "final" offer with a duration of 1 year from
December 18, 1958. In the light of Respondent's 8 (a) (1) conduct,
and, particularly Rogers' remark that he was out to break the Union
and that it would obtain nothing it could get credit for, the refusal
of the Respondent to accept the Union's counteroffer and Respondent's
insistence on a June 2 termination date take on added significance.
Respondent's motivation for its adamant position is made clear by
its solicitation of employees at this time, asking whether they wished
a long Christmas holiday, instead of half holidays before Christmas
and New Year's, which it had given in the previous year. Despite
these inquiries, at the same time Respondent refused to budge from
its "final" offer which provided for half holidays.
Bargaining was
suspended following January 26, 1959, when Unetic remained ob-
durate to Slater's plea that he try to reach an agreemnt before Unetic
left Respondent's employ.
Respondent continued its antiunion cam-
paign by giving a general wage increase amounting to 5 cents per
hour, sometime in January, to all female employees classified as
electronic mechanical assembler C.
Negotiations were resumed on
April 10, 1959, upon request of the International Union.
Meanwhile,
in the spring of 1959, Leadman Paul Wagner began circulating a
decertification petition for signatures.
With him in this campaign
was Alma Bevers, an employee, who brought the activity to Rogers'
attention sometime in 1959 26
At the April 10 meeting Chiakulas, the
International Union representative, accused the Respondent of bad
faith and asked it to stop its efforts to have the Union decertified, re-
call or offer recall to laid-off union officers and members, set a definite
"While there is no direct evidence that the decertification activity was conducted on
the premises of Respondent or that it sponsored it, the foregoing is set forth to show that
Respondent had knowledge of such activity while it was engaged ostensibly in bargaining
with the Union. It is obvious from Respondent's course of conduct that it hoped for
success of such a petition and we are persuaded that it never intended to reach an
agreement, in this manner, and by its 8(a) (1) and (3) conduct sought to discourage
union activity to the point of winning the next election as soon as possible, after the end
of the certification year on May 12, 1959.
Respondent knew that a contract executed
with the Union would have been a bar to such a petition.
1050
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date for continued contract negotiations, and immediately agree to a
I- or 2-year contract.
Rogers, in reply, insisted on discussing only
the "final" offer previously offered in December, with a June 2, 1959,
termination date.
On April 21 Wagner wrote Rogers asking Re-
spondent not to recognize the Union since 115 out of 160 employees had
signed the decertification petition and he accused the Union of filing
the charges in the instant case to hold up the election.
On April 28,
1959, the signatures of these employees were shown to Rogers for the
purpose of verifying them, against Respondent's records, as to their
-authenticity.
At meetings on April 29 and 30, 1959, Chiakulas re-
quested bulletin board space for the Union, more liberal provisions
for recognition of union stewards, and a list of all new hires, pre-
liminary to discussing Respondent's "final" offer language.
He also
gave Respondent the Union's revised economic demands. At the April
29 meeting Respondent, in response to a union suggestion that it might
accept the "final" offer if it were to run for a longer period than June 2,
1959, said it would give the Union its answer "at the proper time."
At
the May 6 and 9 meetings, Respondent supplied the Union with senior-
ity lists instead of a list of new hires.
There was a failure to agree
on proposed changes by the Union and Respondent in its "final" offer
and Respondent again said it would give the Union an answer on
'duration "at the proper time."
Further meetings were scheduled but
not held because Respondent wrote the Union on May 11, 1959, that
it was refusing to meet because it doubted the union majority.
The
'Union replied on May 12, 1959, asking for a continuance of negoti-
ations but Respondent never answered and has continued to refuse to
recognize the Union.
The Respondent argues in its post-hearing brief that it only engaged
in tough bargaining because of the poor economic situation which con-
fronted it from November of 1958 until May 1959.
While the Re-
spondent's Government business had fallen off during this period,
there is no showing as to the economic circumstances of the Respondent
Borg-Warner Corporation.
We find that the decline in Government
business was a pretext to cloak Respondent's design to break the Union
and give the Union nothing for which it could get credit.
The moti-
vation of Respondent to break the Union is not only proved by Rogers'
admission, but by conduct of Respondent before and within the 10 (b)
period.
While Respondent was adopting a progressively tougher
attitude in bargaining, forcing the Union to retreat, it was engaged in
conduct which we have found violative of 8(a) (1) and (3) and uni-
lateral action with employees in derogation of the rights of the Union
as collective-bargaining representative during the certification year
and while negotiations were continuing, as discussed hereinafter.
We
find, under all the circumstances, that it is clear that Respondent never
intended to reach an agreement with the Union.
A contract with the
BORG-WARNER CONTROLS, BORG-WARNER CORPORATION 1051
Union would have been a bar to a petition for an election which Re=
^spondent was eagerly awaiting at the end of the certification year,
•i.e., May 12, 1959.
We thus find merit in the exception of the General
Counsel to the failure of the Trial Examiner to find that Respondent
never intended to reach an agreement 27
We do not find Respondent's
insistence on a June 2, 1959, termination date as late as near the end
of April 1959 to be an independent 8(a) (5), as did the Trial Ex-
aminer, but consider it to be a part of Respondent's design to avoid
an agreement with the Union and a failure of Respondent to negoti-
ate with an open mind and a desire to reach an agreement 21
We agree with the Trial Examiner that there was a general pay
increase , as described, supra, and not simply a reclassification of em-
ployees necessitated from Respondent's acquisition of another com-
pany, as contended by Respondent, and that such was an independent
8(a) (5).
We find merit in the exception by the General Counsel to the failure
of the Trial Examiner to find that the change in half holidays with
pay, to one whole holiday with pay, before Christmas was an inde-
pendent 8(a) (5).
We do not agree with the Trial Examiner that
Respondent's asking one member of a five-member negotiation com-
mittee prior to the unilateral change as to how he felt about it, and
his personal statement that he thought it a good idea, constitute union
acceptance. We find, contrary to the Trial Examiner, that the change
was a substantial change and did have the effect of undermining the
Union.
We agree with the Trial Examiner that the Respondent unlawfully
refused to meet since May 11, 1959, with the Union because the loss
of union majority was due to unfair labor practices of Respondent, as
found herein.
We agree with the Trial Examiner that Respondent failed to bargain
in good faith since October 13, 1958, in the above respects.
We find that the foregoing refusals to bargain are violations of
Section 8(a) (5) and (1) of the Act.
We find merit in Respondent's exception to the finding of the Trial
Examiner that Respondent unlawfully altered provisions of the union
contract which had expired and which provided that seniority was
to be observed in layoffs and recalls and using seniority only when it
suited its purpose.
Since there is evidence that the union-contract
provisions referred to were not continued in effect without change
21 See Minute Maid Corporation, 124 NLRB 355.
28 While the facts here, including conduct of Respondent in negotiations, show a failure
of Respondent to bargain in good faith while those
in N.L.R B. v. Insurance Agents
International Union AFL-CIO, 361 U S. 477, involved a finding of a refusal to bargain
based on a slowdown alone and not on conduct of Respondent in the negotiations, both
the majority and separate minority opinions of the Supreme Court of the United States,
at pp. 426 and 435 agree that the Act requires both parties to collective bargaining to
confer in good faith with a desire to reach agreement.
1052
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until October 13, 1958, the beginning of the 10(b) period, it appears
that the findings relate to alterations which were first made prior to
the 10(b) period, which continued within the period. Since the events
prior to the 10(b) period are inseparable from those within we are
precluded from finding violations as alleged on the basis of those
within the 10(b) period, particularly where, as here, there were only
a few isolated instances within the 10(b) period.29
In the absence of exception by the General Counsel, we adopt, pro
forma, the findings of no violations by the Trial Examiner by reason
of alleged insistence by Respondent on contractual provisions per-
mitting grievances to be handled at the initial stage without a union
representative present and giving the Respondent unilateral deter-
mination as to employees' seniority.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occur-
ring in connection with the operations of the Respondent set forth in
section I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and tend to lead
to labor disputes obstructing commerce and free flow of commerce.
The foregoing unfair labor practices are unfair labor practices affect-
ing commerce within the meaning of Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
We find merit in the exception of the General Counsel to the recom-
mended order of the Trial Examiner in that it fails to recommend
that Respondent cease and desist from specific acts of interference,
restraint, and coercion, and in that it fails to recommend that Respond-
ent make whole Doris Lan-Franco Callaghan for any loss of earnings
she may have suffered by reason of Respondent's unfair labor practice
prior to September 21, 1959, and in other respects not conforming
with our decision herein.
Specifically, we have found that the Respondent engaged in certain
acts of interference, restraint, and coercion, discriminatory layoffs and
failures to recall, and refusals to bargain.
We shall order it to cease
and desist from interference, restraint, and coercion.
We shall order
that Respondent offer to certain employees, pursuant to our decision
herein, immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority and
29 See Local Lodge No. 1424 etc, et at
(Bryan Manufacturing Company ) v
N.L R B .
362 U. S. 411.
BORG-WARNER CONTROLS, BORG-WARNER CORPORATION 1053
other rights and privileges, and make them whole for any loss they
may have suffered because of the discrimination against they by pay-
ment of a sum of money equal to the amount they normally would
have earned as wages from the date they were discriminatorily laid
off or were not recalled,30 pursuant to our decision herein, less their
net earnings during the period backpay is due, with backpay computed
on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. Because the loss of union
majority was due to Respondent's unfair labor practices, we shall order
it to bargain on request with the Union, in the unit found herein to
be appropriate, and to incorporate in writing any agreement reached.
We shall also order the Respondent to make available to the Board,
upon request, payroll and other records to facilitate the checking of
the amount of back pay due.
Because a discriminatory discharge goes to the very heart of the
Act and conduct of Respondent evidences a purpose to thwart the
right of employees to select freely their collective-bargaining repre-
sentatives, and it is likely that such purpose will be executed in the
future by continuance of the unfair labor practices and by commission
of other unfair labor practices, we shall issue a broad cease and desist
order.
In accordance with the stipulation of the parties, supra, we shall
frame the Order, including the remedy, against Borg-Warner Con-
trols, Borg-Warner Corporation.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent, Borg-Warner
Controls, Borg-Warner Corporation , Santa Ana, California , its offi-
cers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union,
United Automobile , Aircraft and Agricultural Implement Workers
of America (UAW), AFL-CIO, and its Local 509 , as the exclusive
representative of all production and maintenance employees , shipping
80 Backpay shall run from May 17, 1958, for Carl O'Banion, James Felder ,
Charles
Euske, Jesse Haines, and Loy Moore and shall run to April 27 , 1959, for Moore and to
September 21, 1959, for Doris M Lan-Franco Callaghan , Betty Rector, and Leroy Reno.
In all other instances the backpay shall run to the date of reinstatement as shown in
the record or hereinafter as the result of enforcement , except that where it is not clear,
it shall be determined in enforcement .
As the beginning dates in the cases of others
than those specifically mentioned above are not clear because the record does not show
when permanent replacements were hired or the order in which the discriminatees would
have been rehired had it not been for their union activity , we leave these cases to be
determined in enforcement with the suggestion that seniority be used to determine the
order in which recalls would have been made.
,1054
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and receiving employees, and truckdrivers , at its Santa Ana, Cal-
ifornia, plant, excluding office clerical and plant clerical employees,
technical and professional employees, guards, and supervisors, as
defined in the Act, with respect to rates of pay, wages , hours of
employment, and other conditions of employment.
(b) Discouraging membership in International Union, United
.Automobile, Aircraft
and Agricultural Implement Workers of
America (UAW), AFL-CIO, and its Local 509, or any other labor
'organization of its ' employees, by discriminating in regard to em-
ployees' hire, tenure of employment, or any term or condition of
employment.
(c) Interfering with,, restraining, and coercing employees by ad-
vocating the formation of a dominated union, threatening to break
and get rid of the Union, promising benefits to employees if they
refrain from union activity , attributing discharges, layoffs, and re-
'fusals to promote and recall employees to union activities , warning
employees that union activities would affect adversely opportunities
for raises.
(d) Refusing to bargain by making unilateral changes in wages
and hours or other terms and conditions of employment of its em-
ployees in the above unit found appropriate without first consulting
and bargaining with the Union.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations including the above -named or-
ganizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
,purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named labor
organizations, as the exclusive representative of the employees in the
aforesaid unit, and, if an understanding is reached , embody such
understanding in a signed agreement.
(b) Offer to Carl O'Banion, James Felder, Charles Euske, Dorothy
Brink, Juanita Cast, Mary Corcoran , Kay Dye, Patricia Gallup,
Virginia Gauthier, Irene Gorake , Evelyn Shanks, Renee Stanwick,
and Delores Wells reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges previously enjoyed, and make them and Jesse
Haines, Loy Moore, Doris M. Lan-Franco Callaghan, Betty Rector,
and Leroy Reno whole for any loss of earnings each of them may have
suffered or may suffer by reason of the discrimination against him
in the manner set forth in section V, above , entitled "The Remedy."
BORG-WARNER CONTROLS, BORG-WARNER CORPORATION
1055
(c) Preserve and, upon request, make available to the Board, or
its agents for examination and copying, all payroll records and re-
ports, social security payment records, timecards, personnel records
and reports, and all other records necessary or appropriate to analyze
the amount of backpay• and other benefits due and the rights of re-
employment under the terms of this Order.
(d) Post at its plant at Santa Ana, California, copies of the notice
attached hereto marked "Appendix A." 31 Copies of such notice, to be
furnished by the Regional Director for the Twenty-first Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted immediately upon receipt thereof and be main-
tained by it for a period of 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted.
Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered by
any other material.
(e) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken to comply
herewith.
sz In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America (UAW), AFL-CIO, and its Local No. 509
as the exclusive representative of all our employees in the appro-
priate unit with respect to rates of pay, wages, hours of
employment, and other conditions of employment, and if an un-
derstanding is reached embody such understanding in a signed
agreement.
The appropriate unit is:
All production and maintenance employees, shipping and re-
ceiving employees and truckdrivers, excluding office clerical and
plant clerical employees, technical and professional employees,
guards, and supervisors as defined in the Act at our Santa Ana,
California plant.
WE WILL NOT discourage membership in International Union,
United Automobile, Aircraft and Agricultural Implement Work-
1056
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers of America (UAW), AFL-CIO, and its Local No. 509, or in
any other labor organization by discriminating in regard to our
employees' hire, tenure of employment, or other terms and condi-
tions of employment.
WE WILL NOT promise benefits to employees for refraining from
union activity, attribute discharges, layoffs, and refusals to pro-
mote and recall employees to union activities , warn employees
that union activities will affect adversely opportunities for raises.
WE WILL NOT make unilateral changes in wages and hours or
other terms and conditions of employment of our employees in
the above appropriate unit without consulting and bargaining in
advance with the foregoing labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form labor organizations , to join or assist International
Union, United Automobile , Aircraft and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO, and its Local No.
509, or any other labor organization , to bargain collectively
through representatives of their own choosing, or to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any or all of
such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer Carl O'Banion , James Felder, Charles Euske,
Dorothy Brink, Juanita Cast, Mary Corcoran, Kay Dye, Patricia
Gallup, Virginia Gauthier, Irene Gorake, Evelyn Shanks, Renee
Stanwick, and Delores Wells immediate and full reinstatement
to their former or substantially equivalent positions , without
prejudice to any seniority or other rights or privileges previously
enjoyed.
WE WILL make whole Carl O'Banion, James Felder, Charles
Euske, Dorothy Brink, Juanita Cast, Mary Corcoran, Kay Dye,
Patricia
Gallup,
Virginia
Gauthier,
Irene
Gorake,
Evelyn
Shanks, Renee Stanwick, Delores Wells, Jesse Haines, Loy
Moore, Doris M. Lan-Franco Callaghan, Betty Rector, and Leroy
Reno for any loss of earnings they may have suffered as a result
of our discrimination against them.
All our employees are free to become or remain , or to refrain from
becoming or remaining, members in good standing of International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America (UAW), AFL-CIO, and its Local No . 509, or
any other labor organization, except to the extent that this right may
INT'L UNION OF OPERATING ENGINEERS, LOCAL 926
1057
be affected by an agreement in conformity with Section 8(a) (3) of
the
National Labor Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
BORG-WARNER CONTROLS, BORG-
WARNER CORPORATION,
Employer.
Dated----------------
By-------------------------------------
(Representative )
( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
International Union of Operating Engineers, Local 926, AFL-
CIO and Tip Top Roofers, Inc.' Case No. 10-CD-138.
August
26, 1960
DECISION AND ORDER
Upon a charge filed on December 4, 1959, by Tip Top Roofers, Inc.,
herein called the Company, the General Counsel of the National Labor
Relations Board, herein called the General Counsel, by the Regional
Director for the Tenth Region, issued a complaint dated April 18,
1960, against International Union of Operating Engineers, Local 926,
AFL-CIO, herein called the Respondent, alleging that the Respond-
ent had engaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (b) (4) (D) and Section
2(6) and (7) of the Act. Copies of the complaint, the charge, and
notice of hearing were duly served upon the Respondent and the
Company.
With respect to the unfair labor practices, the complaint alleged
that : Pursuant to Section 10 (k) of the Act, the Board heard and made
a determination of dispute out of which the charged unfair labor
practice arose; the determination of the Board was that the Respond-
ent was not lawfully entitled to force or require the Company to assign
the work of operating the mechanical hoist, known as a laddervator, to
its members rather than to the Company's employees who are members
of Local 136; 3 the Respondent has not complied with the terms of
the Board's Decision and Determination of Dispute; the Respondent
since on or about December 2, 1959, by means proscribed by Section
8 (b) (4) engaged in conduct an object of which was to force or require
the Company to assign the disputed work tasks to employees who are
members of the Respondent rather than to employees who are mem-
bers of, or represented by, Local 136; and by such conduct, the Re-
1 The name of the Company appears as corrected by stipulation of the parties.
2 United Slate, Tile and Composition Roofers, Damp and waterproof workers Associa-
tion, AFL-CIO, Local 136, herein called Local 136.
128 NLRB No. 121.