General Battery Corporation

National Labor Relations Board - Board Decisions

Mar 22, 1982

261 N.L.R.B. 276 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Battery Corporation and General Drivers,
Warehousemen and Helpers Local Union No.
28, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 11-CA-9375
March 22, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On August 17, 1981, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, as
modified below, and to adopt his recommended
Order, as modified.2
We do not adopt the Administrative Law
Judge's finding that the Respondent violated Sec-
tion 8(a)(1) by substituting a nonmeasured wage
rate for an incentive rate in the wet formation de-
partment in August 1980. The Administrative Law
Judge found that the change to the nonmeasured
rate was a business decision that had been develop-
ing for many months, but that the timing of the
change, shortly before a scheduled rerun represen-
tation election, raised an inference of unlawful
intent that was not rebutted by the evidence pre-
sented. We disagree. We conclude that the total
evidence establishes that the institution of the non-
measured rate in August was based on business
considerations and was not related to the scheduled
election.
Initially, we note that the nonmeasured rate im-
plemented in August was applied only to employ-
ees in the wet formation department, who consti-
tuted but a small part of the unit in which the elec-
tion was to be conducted. Further, institution of
the nonmeasured rate was consistent with a com-
panywide practice to use such a rate when an in-
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
' In view of the limited unfair labor practices found in this case, we
modify the broad cease-and-desist order recommended by the Adminis-
trative Law Judge.
261 NLRB No. 43
centive rate had not yet been developed for a par-
ticular process, piece of equipment, or product, or
when an existing incentive rate was no longer
valid. At the time the nonmeasured rate was decid-
ed on, the wet formation department was experi-
encing problems with deteriorating equipment that
substantially affected production and earnings in
the department. These problems had become in-
creasingly serious during the first half of 1980. In
January 1980, the level of earnings under incentive
rates was at 126.7 percent; in June it reached 107.9;
and in July it was at a low point of 107.7. A revi-
sion of incentive rates that had been made in April
1980, after a request in February and timestudies in
February and March, had proved inadequate, and
further study of incentive rates had been directed.
Work on equipment replacement and rework of in-
centive rates had proceeded in May and June, but
an attempt by the industrial engineer to supervise
installation of new incentive rates during the last
week in July had been unsuccessful, and it also
became apparent that there would be further sig-
nificant delays in repairing and replacing equip-
ment. At this point, the decision was made to insti-
tute the nonmeasured rate. It was intended to re-
flect what the expected level of earnings would be
if employees were working in a measurable and
verifiable situation. The fixed percentage rate
adopted, which was 140 percent of the base rate,
approximated the rate the wet department employ-
ees had earned during an earlier period under the
incentive system and the rate that other depart-
ments in the plant were currently achieving under
incentive rates. In implementing the nonmeasured
rate, the Respondent informed the wet formation
employees that the rate would be effective for a
temporary period until equipment problems in the
department were solved, and made no mention of
the Union. In these circumstances, we find that in-
stitution of the nonmeasured rate in August 1980
did not violate Section 8(a)(1). Accordingly, we
shall, and hereby do, dismiss that allegation of the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
General Battery Corporation, Greer, South Caroli-
na, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Delete paragraphs l(b) and (c).
2. Insert the following as paragraph l(b):
276
GENERAL BATTERY CORPORATION
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten employees with re-
prisals should they engage in any activity on
behalf of General Drivers, Warehousemen and
Helpers Local Union No. 28, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
GENERAL BATTERY CORPORATION
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This
matter was heard before me on June 3, 1981, at Green-
ville, South Carolina, upon the General Counsel's com-
plaint which alleged that the Respondent threatened em-
ployees and granted them an economic benefit in viola-
tion of Section 8(aXl) of the National Labor Relations
Act, as amended, 29 U.S.C. §151, et seq.
The Respondent generally denied that it has commit-
ted any unfair labor practices, and specifically denied the
alleged threats. The Respondent contends that its tempo-
rary change from an incentive pay to a fixed hourly
wage' for certain employees was justified by business
considerations and was not violative of the Act.
Upon the record as a whole, including my observation
of the witnesses, briefs, and arguments of counsel, I
hereby make the following:
'This is referred to by the General Counsel as a "guarantee wage
rate" and by the Respondent as a "non-measured rate." Here these terms
will be used interchangeably.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
General Battery Corporation (herein Respondent) is
engaged in the manufacture, sale, and distribution of
storage batteries for use in vehicles. It has eight manufac-
turing plants, including the one in Greer, South Carolina
(the only facility here involved), and four distribution
warehouses. In the course and conduct of its business,
the Respondent annually receives directly from points
outside the State of South Carolina goods, products, and
materials valued in excess of $50,000 and annually ships
directly to points outside the State of South Carolina fin-
ished products valued in excess of $50,000. The Re-
spondent admits, and I find, that it is an employer en-
gaged in interstate commerce within the meaning of Sec-
tions 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers, Warehousemen and Helpers Local
Union No. 28, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (herein the Union), is admitted to be,
and I find is, a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
As with almost all employees in direct manufacturing
companywide, wages of the Greer plant employees are
based on production. Thus, for instance, the employees
in the wet formation department (where the batteries are
filled with acid and charged) the 13 individuals on the
crew are treated as a team for the purpose of the incen-
tive rate.
During the times material, the wet formation crew re-
ceived a base rate of $4.25 per hour (raised to $4.69 on
October 1) which they would be paid in the event the
production line was down for some reason. When not,
their wages would be a function of how much produc-
tion the crew did in a given period of time (the specifics
of the incentive pay system were not set forth in the
record and for purposes of this case are largely immateri-
al). In any event, the incentive rate is higher than the
base, is set by the corporate industrial engineering de-
partment after studies, and is based on production.
There is general agreement that for at least 3 years
there had been problems with production in the wet for-
mation department as a result of deteriorating equipment,
which in turn was caused by acid.
Since at least January 1980 this problem had been the
source of discussion and communication between the
plant manager and higher corporate authorities including
the industrial engineering department. According to
Robert Ellison, Respondent's director of manufacturing
engineering, studies by his department revealed a de-
creasing performance in the redi-dri2 and wet formation
' Redi-dri is an additional production step for special products. It is un-
clear whether it is a different department involving different employees.
277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
departments from mid-1978 through July 1980, such that
by July 1980 they were performing at only 107.7 per-
cent, whereas the overall plant production was 138.3
percent. Performance in the wet formation department in
1977 and for the first 6 months of 1978 had averaged
about 140 percent.
According to Ellison, documented by intercompany
memos, throughout 1980 the Respondent was engaged in
efforts to increase production in wet formation including
making substantial capital expenditures on equipment
which would be more acid resistant. In conjunction with
this, the Respondent was also faced with the problem of
setting the appropriate rate and incentive standard for
that department. Thus, in a weekly manager's report
dated May 4, 1980, the Respondent's plant manager
stated, with regard to the wet formation department,
"Requested Bob Ellison proceed with purchasing con-
veyor for formation." And he went on to state, concern-
ing the plant's need for help from industrial engineering,
"Rates for redi-dri and wet formation are being returned
for additional work. We need methods along with rates."
On June I, 1980, again in a weekly report, the plant
manager stated, "I.E. is reworking wet formation rate
and layout." On June 22 the plant manager reported,
"We need to resolve our methods, equipment and rates,"
in wet formation; and with regard to the plant's need for
help from industrial engineering, "Formation rates and
methods."
Finally, according to the testimony of Ellison, in mid-
August it was determined to take the wet formation de-
partment off of the incentive rate temporarily and insti-
tute a fixed rate of 140 percent until such time as the
new conveyor and presumably other equipment, could
be put in place. What this meant, as far as I am able to
determine from the record, is that the employees in the
wet formation department went from a base rate of $4.25
per hour to $5.95 which would be their applicable pay
for all hours worked when they were actually in produc-
tion. According to Ellison, the nonmeasured rate, as with
the measured rate, would not be applicable to down
time. Then the base would be paid.
There is no evidence that any employee in the wet for-
mation department actually began earning more money
in late August as a result of this change in method of
payment. However, the Respondent's records show the
wet formation department was running at about 108 per-
cent in June and July, and for all of 1980 was about 118
percent. Thus to begin paying employees at a rate of 140
percent in August necessarily meant a net pay increase.
There is no testimony or other evidence tending to con-
trovert this inference.
In December, the Respondent reestablished the incen-
tive rate for the wet formation department. Thereafter
(January or March) for reasons similar to those in 1980,
employees in the wet formation department were taken
off the incentive rate and put on the guaranteed rate for
a period of about 5 weeks.
Ellison testified that to put employees on a guaranteed
rate is extraordinary but not completely uncommon
when the company is faced with temporary production
problems. He could recall no instance where an entire
department was put on a guaranteed rate, though he
could recall a number of instances not only at the Re-
spondent's Greer plant but at others where from time to
time employees were taken off incentive and put on a
guarantee. Indeed he testified that companywide there
are changes in incentive rates three or four times a week.
Here, however, the change from the incentive rate to
the nonmeasured rate occurred about 2 weeks before a
rerun election was to be held and during the course of
an antiunion campaign engaged in by the Company.3
B. The Issues
The General Counsel contends that the change from
the incentive rate to the nonmeasured rate was intended
by the Company to interfere with employees' freedom of
choice in the scheduled election and therefore was viola-
tive of Section 8(a)(1) of the Act.
In addition, the General Counsel contends that in late
August Supervisor Bob Hall threatened employees
Wayne Frady and Ronald Merriman, and that Supervi-
sor Joe Howell threatened employee Betty Jean Gray
Green in mid-August.
C. Analysis and Concluding Findings
1. The pay rate
Although the Respondent certainly has a right to oper-
ate its business during the course of an organizational
campaign it may not use that as a justification to inter-
fere with rights guaranteed to employees under Section 7
of the Act. Nor is granting benefits to employees during
an organizational campaign per se unlawful, where it is in
general accord with company policy and procedure. Allis
Chalmers Corporation, 224 NLRB 1199 (1976).
However, where an employer increases wages shortly
before a rerun election, and during a time when it is
campaigning against the union, there is a presumption of
unlawful intent. "We cannot ignore decisional accelera-
tion in employee benefits preceded by months of lethar-
gy." WKRG-TV, Inc., 470 F.2d 1302, 1308 (5th Cir.
1973).
Although all the evidence points to the conclusion that
putting in the nonmeasured rate was a business decision
which had been developing for many months; there is no
evidence to rebut the inference of unlawful intent raised
by the timing.
The Respondent had been faced with the problem of
deteriorating equipment in the wet formation department
as well as deteriorating production by employees in that
department. While this matter was the source of discus-
sion and intercompany memos among high level manage-
ment, no decision was made to change the method by
which employees in the wet formation department would
be compensated until shortly before the election. There
is no evidence why the decision was made and then im-
plemented when it was. In short, the Respondent has
brought forth no credible evidence to demonstrate why
I In General Battery Corporation, 241 NLRB 1166 (1979), among other
things, the Board set aside the election held in Case 1 I-RC-4499 on
August 28, 1978, remanding the matter to the Regional Director to
schedule a second election. That election was scheduled for September 4,
1980, but was blocked by the filing of the charge in this matter.
278
GENERAL BATTERY CORPORATION
it was necessary to grant employees a pay change so
close to the election. Further, as noted above, I infer the
rate change had the effect of a pay increase for employ-
ees in the wet formation department. In June and July
their production had been at 108 percent. Thus the non-
measured rate of 140 percent presupposed an increase.
There is no evidence to rebut this inference. The Re-
spondent has explained generally why it was necessary
to make the temporary change from incentive to non-
measured rates in the wet formation department. It has
not explained the necessity for the timing and the timing
is what makes this a violation of Section 8(aX)( of the
Act. Particularly such is the case when viewed in the
context of a substantial antiunion campaign.
I therefore conclude that by instituting the temporary
change from an incentive rate to a nonmeasured hourly
wage rate of 140 percent, the Respondent granted em-
ployees in the wet formation department an increase in
their pay at a time when it could have no other effect
than that of interfering with their freedom to choose the
Union, or not, in the then-scheduled election. I accord-
ingly conclude that the Respondent thereby violated
Section 8(a)(1) of the Act.
2. The threats
Both Frady and Merriman testified that one noon
during the latter part of August they were in the lunch-
room talking between themselves about the Union. They
testified that during the course of their discussion Bob
Hall, a supervisor but not of either of them, came by and
joined the discussion. He told them, according to Frady,
that he had worked as a union man but that the union
had been of no help to him and further, if the Union
came in, the Company "could" take away wages and
other benefits employees already enjoyed and could
"wipe the slate clean."
Merriman testified that Hall stated the Company
"would" take away employees' benefits. Since this event
took place some several months before the hearing and
lasted a short time, I believe that there is an insignificant
distinction between "would" and "could," whatever
their semantic differences may be.
While Hall did not specifically deny that he made the
statements attributed to him by Frady and Merriman,
other than to say he never used the expression "wipe the
slate clean," he seemed to deny every aspect of their tes-
timony including that he ever discussed the union cam-
paign with them, ever talked to them in the lunchroom
or even talked to them together.
To credit Hall would require believing that the testi-
mony of Frady and Merriman was a total fabrication in
every respect. I do not believe it was. Rather, I found
Frady and Merriman to be generally credible witnesses
and I discredit Hall. I conclude that in fact sometime
during the latter part of August they did discuss the
union campaign with Hall. During the course of this
conversation Hall offered his opinion that in the event
the employees voted for the Union the Company could
(would) take away benefits and such I conclude was a
threat in violation of Section 8(a)(1).
Betty Jean Gray Green testified that in mid-August
her supervisor, Joe Howell, handed out literature which
concerned the closure of the Johnson Motor Lines and
an employee of some 35 years who was put out of work.
Upon receiving this antiunion campaign literature, Green
asked Howell if the company or the union had closed
down the plant and Howell told her that he did not
know but probably the company did.
She testified that, some minutes later, Howell advised
her to make house payments in advance, telling her he
would hate to see her lose the home she had bought a
few months before.
Howell testified that he did not talk to Green the day
he passed out the antiunion literature but that 2 or 3 days
later he told her that the Union could call a strike if it
got in and to prepare for such an eventuality she ought
to get two or three house payments ahead.
The testimony of Howell and Green does not vary sig-
nificantly on the substantive fact; namely, after passing
out literature depicting a plant closing as a result of
union activity Howell then unsolicited told an employee
under his supervision that the Union could call a strike
and he would hate to see her lose her house.
I conclude that such was a direct implication that, in
the event the employees chose the Union, such would be
a result. Such was a substantial threat to an employee
and exceeded the bounds of permissible antiunion activi-
ty or prediction. The Respondent, through Howell, vio-
lated Section 8(a)(1) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices found, occurring in connec-
tion with the Respondent's business have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof within the meaning of Section 2(6)
and (7) of the Act.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain appropriate
action including posting a notice designed to effectuate
the policies of the Act.
Upon the foregoing findings of fact, conclusions of
law, the entire record in this matter, and pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER4
The Respondent, General Battery Corporation, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisals should they
engage in activity on behalf of the Union.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Granting employees a wage increase in order to in-
terfere with their freedom to vote or not vote for the
Union or any other labor organization.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.'
2. Take the following affirmative action:
(a) Post at its Greer, South Carolina, facility copies of
notice marked "Appendix." 6 Copies of said notice, on
s Because the unfair labor practices here, while seemingly something
less than egregious, occurred shortly following the decision in the first
case and shortly before the scheduled rerun election, I believe the Re-
spondent has a proclivity to engage in unfair labor practices. According-
ly, broad injunctive relief is indicated. See Hickmott Foods Inc., 242
NLRB 1357 (1979).
e In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
forms provided by the Regional Director for Region I1,
after being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region II11, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
280