Borg-Warner Corp.

ATKINS SAW DIVISION, BORG-WARNER CORPORATION 949 VI THE REMEDY Having found that the Respondent has discriminatorily reduced the wage rates of employees Thurmond Y Green , Talbert Gabbard, Homer H Logan, and Lonnie Henry Todd , in violation of Section 8(a) (3) of the Act, I shall recommend that the Respondent cease and desist from the foregoing conduct and that it reinstate the rate of pay paid to these employees prior to the discrimination or the adjusted pay which may have resulted from any general pay raises since that time without any limitation, however, upon the Respondent to reduce these employees in a nondiscriminatory fashion to pay rates equal to and consistent of other employees doing the same work I shall also order that the Respondent make whole these individuals for any losses they may have suffered because of the discrimination against them commencing with the day they had their wage rates reduced up to and including the dates that they are reinstated to their former wage rates, such reimbursement to be computed on a quarterly basis in the manner established by the Board in F W Woolworth Company, 90 NLRB 289, 291-294, with interest added thereto at the rate of 6 percent per annum in accordance with Isis Plumbing & Heating Co, 138 NLRB 716 In view of the seriousness of the unfair labor practices committed by the Re- spondent as heretofore found , I shall recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed its em- ployees by Section 7 of the Act CONCLUSIONS OF LAW I Dierks Forest, Inc, is an employer engaged in commerce within the meaning of the Act 2 Lumber and Sawmill Workers Local Union No 3089 , United Brotherhood of Carpenters and Jointers of America , AFL-CIO, is a labor organization within the meaning of the Act 3 By discriminatorily reducing the wage rates for its employees , the Respondent violated Section 8 (a) (3) and (1) of the Act 4 By failing to notify the Union and bargain with it with regard to the reduction of the wage rates of the aforesaid employees , the Respondent violated Section 8(a)(5) and (1) of the Act 5 By failing timely to furnish the Union with a complete set of wage data as requested by the Union the Respondent violated its obligation to bargain as set forth in Section 8(d) and Section 8(a) (5) and (1) of the Act 6 By failing and refusing to bargain in good faith with the Union as the exclusive bargaining representative of its production , maintenance , and yard employees at the mill supply and D & E shop at De Queen , Arkansas, and its treating plant at Process City, Arkansas, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act 7 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act [Recommended Order omitted from publication ] Atkins Saw Division, Borg-Warner Corporation and United Steelworkers of America, AFL-CIO. Cases Nos 26-CA-1210 and 26-CA-1699 September 11, 1964 DECISION AND ORDER On June 3, 1964, Trial Examiner "T Edwin Youngblood issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and iecommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's De- cision Thereafter, Respondent filed exceptions to the Trial Ex- aminer's Decision and a supporting brief 148 NLRB No 98 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Trial Examiner's Decision, the exceptions, and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exception noted in footnote 1, below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent, Atkins Saw Division, Borg-Warner Corporation, its officers, agents, succes- sors, and assigns, shall take the action set forth in'the Trial Examiner's Recommended Order 2 IT IS HEREBY FURTHER ORDERED that the complaint in Case No. 26-CA-1210 be, and it hereby is, dismissed. 1 We find it unnecessary to rely or pass upon Respondent 's presettlement conduct In- asmuch as it. would not materially , affect the scope of our Decision and Order herein. Accordingly, we do not adopt the Trial Examiner' s findings in this respect and shall dismiss the complaint in Case No . 26-CA-1210 without passing on its merits. 2 The Trial Examiner 's Recommended Order is amended by deleting therefrom para- graph (f) and by relettering paragraph (g) as paragraph (f). The appendix is hereby. amended to conform with the,amendment in the Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE, Upon a charge and first amended charge filed on January 22 and February 28, 1962, respectively, in Case No. 26'CA=1210, and a charge filed on December 4, 1963, in Case No. 26-CA-1699, by United Steelworkers of America , AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26 (Memphis, Tennessee ), issued a consolidated complaint on January 24, 1964, alleging the commission of unfair labor practices by Respondent in violation of Section 8(a) (1) and affecting commerce within the meaning of Section 2(6) and ( 7) of the National Labor Relations Act, herein called the Act . The consolidated complaint was further amended at the hear- ing which was held before Trial Examiner W. Edwin Youngblood in Greenville, Mississippi , on March 3 and 4, 1964. - Respondent filed an answer denying the alleged unfair labor practices. Briefs were received from the General Counsel, the Union, and Respondent , and have been duly considered. , Upon the entire record in the consolidated cases and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT ,Respondent, an Illinois corporation, is engaged at its plant in Greenville, Missis- sippi, in the manufacture of`saws. During the 12 months preceding the issuance of the consolidated complaint, Respondent sold and shipped from its Greenville , Missis- ATKINS SAW DIVISION, BORG-WARNER CORPORATION 951 sippi, plant , products valued in excess of $50 ,000 directly to points outside the State of Mississippi . During this same period, Respondent purchased and received at its Greenville, Mississippi, plant, materials valued in excess of $50,000 directly from points outside the State of Mississippi . Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. INTERFERENCE, RESTRAINT, AND COERCION Prefatory Statement On May 31, 1961, the Union filed a charge alleging that Respondent had violated Section 8 (a) (3) of the Act.' As Respondent states in its brief, it "was put on notice of organizational activity in its plant by the filing" of this charge. On October 31, 1961, the Union wrote Respondent naming the employee members of its organizing committee. On January 22, 1962, the Union filed the charge, as noted above, against Respondent in Case No. 26-CA-1210. On March 9, 1962, the complaint was issued in Case No. 26-CA-1210. On March 16, 1962, the Union filed its petition in Case No. 26-RC-1754. On March 30, 1962, the charge in Case No. 26-CA-1250 was filed by the Union, which charge was later withdrawn. On April 27, 1962, the parties entered into a settlement agreement in Case No. 26-CA-1210. The notice attached to the settlement agreement provided in part as follows: We will not maintain or• enforce any rule prohibiting any of our employees from engaging in activities on behalf of any union on company property on nonworking time. - We will not interrogate our employees concerning their union activities or desires. The notice also recited that Respondent would not "in any manner" interfere with, restrain, or coerce its employees in the exercise of their rights under the Act. On June 1, 1962, an election was held which the Union lost. On September 30, 1963, the Union wrote another letter to Respondent notifying it of the names of employee members of its organizing committee. On Octber 8, 1963, the Union filed the petition in Case No. 26-RC-2060. On November 7, 1963, the Union wrote Respondent adding the names of four,employees to its list of employee members of its organizing committee. On November 15, 1963, an election was held which the Union lost. On December 4, 1963, the Union filed the charge in Case No. 26-CA- 1699. -On January 8, .1964, the Regional Director,, because of the charge in Case No. 26-CA-1699 and the subsequent alleged unfair labor practices of Respondent, set aside the settlement agreement. On January 24, 1964, the consolidated complaint in Cases Nos. 26-CA-1210 and 26-CA-1699 was issued. General Counsel contends and Respondent denies that the Regional Director acted properly in setting aside the settlement agreement because of Respondent's conduct subsequent to the settlement agreement. We will therefore first consider, Respondent's postsettlement conduct. A. Postsettlement conduct 1. Interrogation , threats of loss of employment and harder working conditions, and instructions to employees Sometime between November 7 and 15, 1963, employee Gene Coleman had a conversation at his machine with Supervisor Chester Wells? Wells said that if the Union came in the employees would have to work much harder, adding that they would have to account for "every minute" of their time if the Union was voted in? During the week of the election of November 15, 1963, employee James Mahan was working at his machine in the blockhouse when employee Alfred Kerr came-in to sharpen a pencil . At this point, Plant Superintendent Roy Williams came in. I This charge was later dismissed. 2 The pleadings establish that Wells and all other supervisors referred to herein are supervisors within the•meaning of the Act. 3 Based on the credited and undenied testimony of Coleman ; Wells did not testify. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williams began talking to Kerr and stated that the Respondent paid as good wages as anybody in the area and then asked Mahan how long he had been there. Mahan replied, "Just a few months." Williams then stated that he meant altogether, "that it wasn't the Company's fault" that Mahan had been fired. (Mahan had been dis- charged in May,1963 and rehired in July.19,63.) Mahan agreed that his discharge' had not been the fault of Respondent Williams then stated that if the Union had been "in" Respondent might not have been able to rehire Mahan? Also during the week of the election of November 15, 1963, Elmer D. Robinson, president' and general manager of Respondent, talked to the employees in, groups. The next day employee Guy Sudduth was talking with Supervisor Howard Mabe near Mahan. Mabe turned to Mahan and asked Mahan what he thought about Robinson's speech. Mahan replied that he • did not believe it was "all true," that he did not believe any company that big could operate in the red for that long. Mabe said that he believed the Company was in "bad financial shape" and that if the Union were to come in it would not help their financial condition any Mabe then reminded Mahan of his discharge and unemployment a few 'months before and said, "We might all- be in that position again if the Union came in." 5 - - =. On September 30, 1963, as noted above, the Union sent Respondent a list of names of employees on its organizing 'committee A few days later, Mabe told employee Sudduth that he had-seen his name on the letter and said that he felt that Sudduth was, making a mistake being on the committee and trying to organize the Union .6 On Tuesday before' the election of November 15, 1963, Supervisor John Ashley asked employee Alfred Kerr if he was ready- for the "big day." Kerr asked "What big day?" to which Ashley replied. "The 15th." Kerr said, "Yes, sir,'I have been ready for that day for a long time." Ashley then asked Kerr-how he was going to vote. Kerr replied that Ashley should know because his name was on the committee, list. Ashley then asked Kerr if he was not, in debt and when Kerr replied. in the affirmative, Ashley asked him how he expected to pay his bills without"a job. Kerr asked what Ashley meant, to which Ashley replied, "If the Union comes in, there is a possibility that this plant might close down and we won't have a 'ob. ; 7 On Saturday afternoon, October 12, between 3 and 3:30, Kerr had aconversaton with his supervisor, Clifton Tolar, at Tolar's desk. Tolar told Kerr that he had seen where Kerr was on the organizing committee. When Kerr admitted, that was correct, Tolar told him, "go tell them to take [your] name off of,that because [you] had made a mistake when [you] signed it." Kerr stated that the only mistake he had made was voting "No", in the first union elections - - „ Concluding Findings 9 I find that Respondent violated Section 8(a)(1) of the Act by: (a) Wells' threat to Coleman that employees would have to work much harder if the Union came in; (b) Williams' threat to Mahan that if the-Union"had been in-when'Respondent re- hired Mahan, it might not have; been able to rehire him; (c) Mabe's,threat to Mahan, and Sudduth in effect that if the Union came in they might all be 'discharged and 4 Based on the credited and ubdenied testimony of Mahan - , s The foregoing is based on the credited and undenied testitony ,of Mahan and Sudduth. Mabe testified that he belie `vedrthat the ' subject of ,strikes at the Indianapolis;plani fol: lowed' by' loss of customers was'a part 'of this conversation - Mabel'further testified that' he was trying to make it clear that he did not think the Company could stand another strike like that Mahan did not recall anything being said about strikes in this conversa- tion In fact, he denied four times that strikes were mentioned . Former employee Sudduth did not recall strikes being mentioned. Both Mahan and' Sudduth impressed me as sincere and candid witnesses I credit their testimony and reject Mate's contrary testimony.' . , - , 1 .1, J , 8 The foregoing is based ' on the credited , and undenled testimony of Sudduth. 7Ashley denied asking Kerr how he was going to vote and testified that he said that if the Union came in and there was a strike,'tliere was a possibility, due to the Company's financial position , that all the employees might lose their jobs : ' Both Kerr and-eriiployee Samuel Brocato; who,overheard the,4conversation,' denied that a strike was mentioned. I credit the testimony of Kerr and Brocato upon; which the 'foregoing is based: s The foregoing is based on the ciedited and undenied testimony of Kerr - -Tolar-did not testify 4In'its brief , Respondent contended that the statements , of its supervisors were "iso- lated , infrequent , and innocuous." I do not consider this conduct to be either isolated or. innocuous .' Accordingly , this contention is rejected. , , ATKINS SAW DIVISION, BORG-WARNER CORPORATION 953 therefore unemployed; (d) Ashley's interrogation of Kerr as to how he was going to vote in the election; 10 (e) Ashley's threat to Kerr,that if the Union came in, the plant might close down and they would be without jobs; (f) Tolar's instruction to Kerr to remove his name from the list of the Union's organizing committee. In my opinion, a supervisor's instruction to an employee working under him to refrain from engaging in union activity is reasonably calculated to interfere with, restrain, and coerce him in his Section 7 rights.11 2. The no-solicitation rule of June 15, 1-963 Paragraph 22 of the consolidated complaint alleges that: Respondent, since on or about June 15, 1963, at its Greenville, Mississippi, plant, has promulgated and enforced the following rule: No solicitations or distributions of printed or written matter will be per- mitted during working time on Atkins Saw property by anyone for member- ship applications, petitions, enrollments, or funds for any club or organiza- tion. Also prohibited is the distribution of handbills or other written or printed matter in any work area of the plant at any time. Any solicitations, including those for recognized charities, must be approved in writing by the Personnel Manager. In its answer to the consolidated complaint, Respondent admitted the promulgation of the rule described in paragraph 22 of the said complaint, but denied that the rule violated the Act and also denied that it had enforced the rule. Respondent further alleged in its answer that solicitations by and on behalf of the Union were permitted and that there was no interference with such solicitations or activity. The General Counsel took the position at the hearing that the mere existence of the rule violated the Act., General Counsel further stated he did not intend to offer any evidence as to the enforcement of the rule with respect to any particular em- ployee. In his brief, the General Counsel argues that "the mere existence of the rule, independent of any evidence of its discriminatory or nondiscriminatory enforce- ment, consitutes a violation of Section 8(a)(1)." Let us consider then whether the rule as stated is violative of the Act. The rule is set forth in the "Employee Hand- book" which is distributed to employees.12 The principal argument made by General Counsel in his brief is in connection with the last sentence of the rule, namely, "Any solicitations, including those for recognized charities, must be approved in writing by the Personnel Manager." As this sentence begins "Any solicitations, ." it does not purport to limit the instruction to nonunion solicitations and is so broad that it impliedly must be construed as applying to solicitations with respect to union membership during employees' nonworking time.13 In J. R. Simplot Company Food Processing Division, 137 NLRB 1552, 1553, the Board stated that it is erroneous to assume that an employer "can predicate the exercise of'-a Section'7 right upon its own authorization." Moreover, the rule as stated is clearly not limited to solicita- tions for money as Respondent contends in its brief. Accordingly, what is involved therein is a no-solicitation rule applicable to employees -during nonworking time and therefore presumptively invalid in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.14 Respond- ent introduced no evidence to show such special circumstances nor does it contend that they exist in connection with this rule. The inhibiting effect of this rule on employees receiving handbooks would scarcely be prevented or removed even if we were to assume, as Respondent contends, that the rule was not enforced or even if the rule was not interpreted by Respondent to apply to employees' nonworking time. 10I am, unable to accept Respondent's contention made in its brief that Ashley's ques- tion should be dismissed as "joking" in view of the context in which the interrogation occurred "I do not consider Mahe's statement to Sudduth about having seen his name on the Union's letter, and further statement that he "felt like" Sudduth was making a mistake being on the Union's committee and organizing for the Union to be violative of the Act. I believe and find that these statements were protected by Section 18(c) of the Act. '"General Counsel's Exhibit No. 2(b). i3 Remington Rand Corporation, 141 NLRB 1052, 1056. 14 Cf. Walton Manufacturing Company, 126 NLRB 697, 699. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find, therefore, as the General Counsel contends, that by promulgating and main- taining this rule, Respondent violated Section 8(a) (1) of the Act.15 3. Threats in exploitation of racial prejudice The consolidated complaint, as amended, alleges that Respondent, by certain named supervisors on or about certain dates, "in exploitation of racial prejudice, threatened its employees that they would displace employees with Negroes and would enforce association with Negroes if the employees selected the Union as their representative for the purpose of collective bargaining." As noted above, the hearing in these cases took place in Greenville, Mississippi. The attitude of the average male white southerner towards Negroes is therefore in- volved herein. In fact, at least one of the witnesses for the General Counsel, Gene Coleman, journeyed to Oxford, Mississippi, during the recent disturbances there involving racial strife. Although Negroes' are presently employed in the plant, they use separate restrooms and separate drinking fountains from the whites.16 This, then, is the background in which the following conduct occurred. On November 14, 1963, about 8:45 a.m., Supervisor Chester Wells talked to Coleman at his machine. Wells told Coleman that he would hate to see a Negro running his machine, to which Coleman replied that he would also, but that he was not worried about it. Wells then left. There were about 16 employees on the line Coleman worked on, none of whom were Negroes although Negroes -were em- ployed in the plant in areas near where Coleman worked.'? A few days after the Union filed its petition on October 8, 1963, employee James Mahan was engaged in a conversation with employee Doyle Daniels about the-Union in the wheelroom. Daniels asked Mahan what he thought the results of the, election would be. Mahan answered that he believed about 65 percent would be • for the Union Daniels disagreed. As they were talking, Supervisor Bill Miller walked in and told Mahan that if the Union came in, the Negro would be treated the same as a white person, and if he had seniority he would get the job. Miller further stated "that we would have to use the same restroom facilities and the same drinking foun- tains and that he could not just promote a person according to his ability but he would have to go solely by seniority." This concluded the conversation.'s Miller, who formerly worked in Respondent's Indianapolis, Indiana, plant, where he was a member of the Union, admitted, however, on cross-examination that white and Negro employees used separate restrooms and drinking fountains at the Indianapolis plant. Sometime after the Union's letter of September 30, 1963, to Respondent, and during the Union's preelection campaign, employee Alfred Kerr had a conversation with Supervisor Clifton Tolar. Tolar asked Kerr if he would help a Negro employee named John Hall. Kerr had done so in the past but refused on this occasion saying he "just couldn't do it."' Tolar said that he could not make him do it but if the -Union came in the plant, "you may have to work with him. , You may have to, use the same restroom and water fountain facilities and he may even be a foreman out here." Kerr said, "This could never happen in Mississippi." Tolar replied, "If the Union comes in, there is nothing that we can do about it, none of us. In a union every man is equal." Kerr told Tolar that he thought the. Union was coming in to help both races and he did not think-that the Union would cause trouble between the races: At this point Supervisor John Ashley walked by and said that employees might have to, use the same water fountains and the same restroom facilities if, the Union came in.'s Concluding Findings Wells' statement tto ' Coleman about a Negro running his machine 'in the circum- stances of this case clearly refers to his being replaced by a Negro if the Union became the collective-bargaining representative. , As such it is violative of the Act 15 Cf J. R. Stimplot Company Food Processing Division, supra; see also Walton dfanu- factursng Company, supra. Respondent posted a notice on its bulletin board (Respond- ent's Exhibit No 4) prohibiting speeches in the lunchroom General Counsel did not allege in the consolidated complaint nor does he contend in his brief that this notice was violative of the Act. Accordingly, I do not reach the question of whether this notice violates the Act 18 The record indicates that a separate seniority policy prevails also. , n Based on the credited and undenied testimony of Coleman 18 Based on the credited testimony of Mahan. I reject Miller's testimony that his state- ments to Malian were merely responses to questions Mahan credibly testified that it was Miller who started the conversation. 11 Based on the credited and undenied testimony of Kerr. ATKINS SAW DIVISION, BORG-WARNER CORPORATION 955 because the statement constitutes a threat to Coleman's job tenure 20 The other state- ments made, however, refer to enforced association between whites and Negroes, e.g , sharing the same restrooms and drinking fountains.21 Here the resolution of the question is not so clear. True enough, the implication of the supervisors' statements is that the Union has certain practices affecting the races which the Employer would establish in this plant if the Union became collectivebargaining representative. For example, Supervisor Bill Miller's statements to Mahan were couched in words of what would happen, not in terms of a mere prediction of what might happen. In addition, and further illustrating the point that the Union's racial practices would be established in the plant, is Supervisor Tolar's statement to Kerr. After Tolar warned Kerr that if the Union came in, whites might have to use the same restrooms as Negroes and Kerr protested that this could not happen in Mississippi, Tolar said, "If the Union comes in, there is nothing we can do about it, none of us." I there- fore find that Respondent through its supervisors and a,ents named above threatened its white employees with changed working conditions involving enforced association between the races if the Union became the collective-bargaining representative of its employees 22 Thus, Respondent did not merely "limit itself to truthfully setting forth another party's position on mattei s of racial interest." 23 But is it unlawful to threaten employees with coercive action that may be lawful if taken? An em- ployer under proper circumstances could lawfully require white and Negro em- ployees to use the same restroom facilities and drinking fountains. On the other hand, in my opinion, if the evidence establishes that these requirements were instituted in a southern plant such as this in reprisal because the white employees selected a union as their bargaining agent such action might well be violative of the Act. For example, an employer may have a practice of lending money to employees without interest. He could lawfully discontinue the practice. On the other hand, this em- ployer would violate the Act if he discontinued the practice in reprisal because his employees selected a union as bargaining agent. Just so, it would be unlawful to threaten employees with discontinuing the lending practice or with changed working conditions as herein if the purpose is to coerce- employees into voting against a union. The coercive effect on the employees of such threats is no less because the threatened action could under proper circumstances be lawfully taken. I cannot read into the above statements by Respondent's supervisors to its employees merely that the changes in working conditions referred to would take place as the result of the orderly process of collective bargaining. In the context in which they were made, I am persuaded that these statements were designed to and did reasonably tend to coerce these white employees into voting against the Union by convincing them of the inevitability of these changes if the Union became bargaining representative. I therefore find that Respondent violated Section 8(a)(1) of the Act by threatening its white employees with changed working conditions -involving enforced association with Negroes if they selected the Union as their collective-bargaining representative24 In view of the conduct found above to be violative of the Act, it is clear that the settlement agreement failed to accomplish its purpose25 I find, therefore, that the Regional Director acted properly in setting aside the settlement agreement. We will now consider the presettlement conduct of Respondent. B. Presettlement conduct General Counsel's motion to withdraw the allegations of paragraphs 7, 8, 9, 10, and portions of paragraph 11 of the consolidated complaint was granted at the hear- ing. General Counsel offered the testimony of employee Matt Addison in support of the remaining portions of paragraph 11. • Addison's testimony was too garbled. 21 Boyce Machinery Corporation, 141 NLRB 756, 763 21 It helps Respondent little to argue, as it does in its brief, that its supervisors were under instructions not to discuss racial issues with employees when, in fact, they did so. 22 The record does not answer the question of the Union's actual racial practices. View- ing the case in the light , most , favorable to Respondent, I assume the truthfulness of the super, isors' .tatements reearding the Union's racial ' practices. 21 Cf. Sewell Manufacturinq Company, 138 NLRB 66, ,71-72. - 24 Cf. Empire Manufacturing Corporation, 120 NLRB 1300, 1317; Petroleum Carrier Corporation of Tampa; Inc-, 126 NLRB 1031, 1039. • ,2a In its brief, Respondent contends,the settlement ;' agreement should not, be set aside, and the earlier charge reopened even if its conduct subsequent to ,the execution of the settlement agreement was unlawful. To accept this contention might tend to encourage Respondents to engage in conduct•in breach of the provisions of settlement agreements secure in the knowledge that they would do so with impunity insofar as the earlier charge was concerned Thus, the deterring effect of the settlement agreement would tend to-be removed. Accordingly, this contention is rejected. • '956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vague, and contradictory to base a finding upon. Accordingly, it will be recom- mended that paragraph 11 of the consolidated complaint be dismissed. 1. The no-solicitation rule of July 23, 1961 It is undisputed that the following rule was contained in employee handbooks distributed to employees: No solicitations will be permitted on Atkins Saw Division property by anyone for membership applications, petitions, enrollments or funds for any club or organization. Also prohibited is the distribution of handbills or other printed matter on Company property. The one exception to this is the solicitation of funds for a recognized charity, but only with the specific written approval of the Personnel Manager. Since this rule is not limited to worktime and work areas and Respondent intro- duced no evidence to show special circumstances requiring the rule in order to main- tain production or discipline, I find the rule violative of the Act 26 2. The granting of benefits to employees On May 31, 1962, the Union filed a charge alleging Respondent had violated Sec- tion 8(a) (3) of the Act, thus in effect putting Respondent on notice of union activity in the plant. On October 31, 1961, the Union wrote a letter to Respondent giving the names of employees on its organizing committee and notifying Respondent that its employees were actively engaged in promoting the Union .27 Respondent by letters to its employees dated December 8, 1961, December 15, 1961, and February 16, 1962,28 granted its employees, respectively, a half-day holiday with pay, gift certificates redeemable for $10, and general wage increases of 5 cents an hour. It is clear from the record that the Union was commonly referred to as the "out- siders" during the time it was actively campaigning in Respondent's plant. In its letter to employees of February 15, 1962, Respondent, after referring to benefits granted to its employees, stated: Compare this way with the typical method of the Outsiders which imposes on a shop a rigid system of classifications into which each employee must be forced so that as time passes a person cannot go outside of his class and the company cannot reward an individual for his interest, cooperativeness and improvement in his work. General Counsel contends that these benefits were conferred in order to "dissipate union activity." In view of the timing of the announcement of these benefits dur- ing the height of the union campaign, a fact known to Respondent, and the unfavor- able references to the Union in'the letter of February 15, General Counsel' s posi- tion would appear to be well taken. Respondent argues, however, that the benefits were granted not for an illegal purpose but "to be competitive" in the local labor market. Respondent's secretary-treasurer, Samuel Keith, who was one of two corporate officials who consulted and made the decisions to grant these benefits, testi- fied that the wage increases were granted to be competitive. He further testified that Respondent's wages were "much less" than those of other manufacturing con- cerns in the area. Yet Keith in effect admitted on cross-examination that Respond- ent's wages were in the upper third in the area. Furthermore, Keith would not recall any wage Hates paid in the area that were significantly more than the Respondent's wages. Moreover, Keith admitted that the Union was discussed in these conversa- tions wherein the decision to confer these benefits was made. Under all the circum- stances, I do not find Respondent's explanation for granting these benefits to be valid, and do find that these benefits were granted in order to discourage the union activity of the employees. Accordingly, I find that Respondent did thereby violate Section 8 (a) ( 1 ) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities found to be unfair labor practices in section III, above, occurring 'in connection with the operations of Respondent described 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 burdening and obstructing commerce and the free flow of commerce. 26Cf. Walton Manufacturing Company, supra; Stoddard-Quirk Manufacturing Co., 138 NLRB 615. ar General' Counsel's Exhibit No. 4 (a). 29 General, Counsel's Exhibits Nos. 3 (a), (b), and (c). ATKINS SAW DIVISION, BORG-WARNER'CORPORATION 957 V THE REMEDY In view of my finding that Respondent has interfered with, restrained , and coerced employees in the exercise of their rights under the Act, I shall recommend that it cease and desist therefrom and post an appropriate notice Upon the basis of the foregoing findings of fact and upon the entire record in these cases, I make the following CONCLUSIONS OF LAW I Respondent is an employer engaged in commerce within the meaning of Section 2(6)and (7)oftheAct , t 2 The Union is a labor organization within the meaning of the Act 3 By interfering with , restraining, and coercing,its employees in itheiexercise of the rights guaranteed in Section 7 of the Act,ithe Respondent has,engaged in and is engaging in unfair labor practices within the -meaning of Section 8(a) (•1) of the Act 4 The aforesaid unfair labor practices are unfair labor , practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act 5 Respondent has not violated the Act as alleged in paragraph 11 of the con- solidated complaint RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, the entire record, and pursuant to Section 10(c) of the Act, it is recommended, that Respond- ent, Atkins Saw Division, Borg-Warner Coiporation , its officers , agents, successors, and assigns, 1 Cease and desist from (a) Interrogating any of its employees concerning their union activities in a manner constituting interference , restraint, and coercion in violation of Section 8(a) (1) of the Act (b) Threatening its employees with more stringent working conditions, loss of em- ployment, and closing the plant if the Union becomes the collective -bargaining representative of its employees (c) Instructing its employees to remove their names from the Union 's organizing committee (d) Promulgating or maintaining rules prohibiting its employees during non- working time from soliciting union membership or prohibiting its employees from distributing handbills or other literature in behalf of any labor organization in non- working areas on company property (e) Threatening its white employees with replacement by Negroes or with changed working conditions involving enforced association with Negroes if the Union be- comes the collective-bargaining representative of its employees (f) Promising or granting wage increases, additional holidays, or gifts to its em- ployees in order to discourage membership in or activities, on behalf of United Steelworkers of America , AFL-CIO, or any other labor organization (g) In any like or related manner, interfering with, restraining , or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Post in conspicuous places at its Greenville , Mississippi, plant, including all places where notices to employees customarily are posted , copies of the attached notice marked "Appendix " 29 Copies of said notice to be fui wished by the Regional Director for Region 26, shall , after being duly signed by the Respondent 's representa- tive be posted by it immediately upon receipt thereof, and maintained by it for at least 60 consecutive days thereafter Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered , defaced, or covered by any other material (b) Notify said Regional Director, in writing, within 20 days from the receipt of this Trial Examiner's Decision , what steps the Respondent has taken to comply herewith 30 "I If this Recommended Order should be idopted by the Board, the s,ords "As ordered bv" shrill be substituted for "As recommended by 9 Trial Ex iminer of' in the notice In the further event thit the Board's Order is enforced by a United Stites Court of Appeals the cords "Pursuant to i Decree of the United Stites Court of Appeals, Enforcing an Order of" shill be substituted for "As ordered bv" 311n the event that his Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director in writing within 10 dais from the date of this Order , what steps the Respondent has taken to comply herewith " 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I further recommend the dismissal of paragraph 11 of the consolidated complaint. APPENDIX NOTICE TO ALL EMPLOYEES As recommended by a Trial Examiner of the National Labor Relations Board, we are posting this notice to inform our employees of the rights guaranteed them by the National Labor Relations Act: WE WILL NOT interrogate any of our employees concerning their union ac- tivities in a manner constituting interference , restraint, or coercion in violation of Section 8 (a)( 1 ) of the Act. WE WILL NOT threaten our employees with more stringent working conditions, loss of employment, and closing the plant if the Union becomes the collective- bargaining representative of our employees. WE WILL NOT instruct our employees to remove their names from the union's organizing committee. WE WILL NOT promulgate or maintain rules prohibiting our employees during nonworking time from soliciting union membership or prohibiting our employees from distributing handbills or other literature in behalf of any labor organiza- tion in nonworking areas of our property. WE WILL NOT threaten our white employees with replacement by Negroes, or with changed working conditions involving enforced association with Negroes if the Union becomes the collective-bargaining representative of our employees. WE WILL NOT promise or grant wage increases, additional holidays, or gifts to our employees in order to discourage membership in or activities on behalf of United Steelworkers of America, AFL-CIO, or any other labor organization. WE WILL NOT violate any of the rights which you have under the National Labor Relations Act to join a union of your own choice or not to engage in any union activities. All our employees are free to become or remain members of United Steelworkers of America, AFL-CIO, or any other union and they are also free to refrain from joining any union. ATKINS SAW DIVISION, BORG-WARNER CORPORATION, Employer. Dated-- ----------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and it must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 746 Fed- eral Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161, if they have any questions concerning this notice or compliance with its provisions. Schapiro & Whitehouse, Inc. and Warehouse, Retail and Mail Order Employees, Local Union No. 590, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 5-CA-p2753. September 11, 1964 DECISION AND ORDER On June 3, 1964, Trial Examiner Joseph I. Nachman issued his De- cision in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. 148 NLRB No. 102.