Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Jan 16, 1940

19 N.L.R.B. 538 (N.L.R.B. 1940)

In the Matter of BORG-WARNER CORP .' (MUNCIE FOUNDRY DIVISION)
and UNITED AUTOMOBILE WORKERS OF AMERICA LOCAL No. 287,
AFFILIATED WITH THE C. I. 0.
In the Matter of BORG-WARNER CORP.' (MUNCIE FOUNDRY DIVISION
and INTERNATIONAL MOULDERS UNION LOCAL 177 , AFFILIATED WITH
THE A. F. OF L.
In the Matter of BORG-WARNER CORP.' (MUNCIE FOUNDRY DIVISION
and PATTERN MAKERS LEAGUE OF N. A. and' PATTERN MAKERS ASSO-
CIATION OF INDIANAPOLIS AND VICINITY, AFFILIATED WITH THE A. F.
of L.
Cases Nos. R-1641, R-1642, and R-1643, respectively.-
Decided January 16, 1940
Metal Products Manufacturing Industry-Investigation of Representatives:
question concerning representation of employees : rival organizations ; conflict-
ing closed-shop contracts concerning same employees ; employer declines to
reopen plant until Board determines representative ; request by one of petition-
ing unions to withdraw its petition , denied, since having filed petition not
permitted to assert its contract as bar to existence of ; Pattern Makers desires
that unit of Pattern Department employees be definitely settled-Units Appro-
priate for Collective Bargaining: (1) all employees of the Company, excluding
clerical, supervisory, and Pattern Department employees , foremen, and plant
superintendent ; ( 2) all employees in the Company's Pattern Department, ex-
eluding clerical and supervisory employees , other than the foreman and plant
superintendent; no controversy as to-Elections Ordered
Mr. Arthur R. Donovan, for the Board.
Warner, Clark & Warner, by Mr. Ray W. Clark, of Muncie, Ind.,
for the Company.
Mr. Maurice Sugar and Mr. Jack N. Tucker, of Detroit, Mich., for
the U. A. W.
. Mr. Joseph A. Padzvay and Mr. Henry Kaiser, of Washington, D.
C., for the I. M. U.
Mr. Roy E. Rogers, of Hammond, Ind., and Mr. William C. Land-
meier, of Indianapolis, Ind., for the Pattern Makers.
Mr. Wallace Cooper, of counsel to the Board.
' The Company's correct name is Borg - Warner Corporation.
19 N. L . R. B., No. 59.
538
BORG-WARNER CORPORATION
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
539
On September 8, 1939, United Automobile Workers of America
Local No. 287, affiliated with the C. I. 0., herein called the U. A. W.,
filed with the Regional Director for the Eleventh Region (Indian-
apolis, Indiana) a petition, and on November 14, 1939, an amended
petition, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Borg-Warner Corpora-
tion (Muncie Foundry Division), Muncie, Indiana, herein called the
Company, and requesting an investigation and certification of repre,
sentatives pursuant to Section 9 (c). of the National Labor Relations
Act, 49 Stat..449, herein called the Act. On November 6 and 14,
1939, respectively, a similar petition and amended petition were filed
by International Moulders Union Local 177, affiliated with the A.F.
of L., herein- called the I. M. U. On November 14, 1939, a similar
petition was filed by Pattern Makers League of N. A. and Pattern
Makers Association of Indianapolis and Vicinity, affiliated with the
A. F. of L., herein called the Pattern Makers.
On November 21 and 24, 1939, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act,
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 2, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice, and acting pursuant to Article, III, Section
10 (c) (2), of said Rules and Regulations, further ordered that the
aforesaid three cases be consolidated:
On November 21, 1939, the Regional Director issued notices of
.hearing which were duly served upon the parties. Pursuant to said
notices, a hearing was held on November 27 and,28, 1939, at Muncie,
Indiana, before Earl S. Bellman, the Trial Examiner duly designated
by the Board. The Board, the Company, the U. At. W., the I. M. U.,
and the Pattern Makers were duly represented by counsel and par-
ticipated in the hearing. Full opportunity to be heard, to.examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. The Trial Examiner reserved de-
cision on a motion made at the commencement of the hearing by the
I. M. U. for permission to withdraw its petition. This motion is,
hereby denied for the reasons stated in Section III below. During
the course of the hearing the Trial Examiner made several rulings
on other motions and on objections to the admission of evidence.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
Pursuant to notice, a hearing was held before the Board on Decem-
ber 14, 1939, at Washington, D. C., for the. purpose of oral argument.
The U. A. W., the L. M. U., and the Pattern Makers were represented
and participated in the argument. The U. A. W. and the I. M. U.
filed briefs which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Borg-Warner Corporation is an Illinois corporation licensed to
do business in the State of Indiana. It is engaged at its Muncie
Foundry Division, Muncie, Indiana, in the manufacture of automo-
tive patterns, grey iron, and semi-steel castings.
A substantial amount of the raw materials used by.'Muncie.
Foundry Division. from November 1, 1938, to November 1, 1939, was
shipped to it from outside the State of Indiana. The value of the
products manufactured by Muncie Foundry Division during the
same period was in the approximate amount of $400,000, approxi-
mately 15 per cent of which were shipped outside the State of
Indiana. Eighty per cent of the finished products manufactured by
Muncie Foundry Division are sold to Warner Gear Corporation,
Muncie, Indianan which is :also a division of Borg-Warner Corpora-
tion. Ultimately, more than 50 per cent of such products sold to
Warner Gear Division are sold and shipped to firms located outside
the State of Indiana.
The Company stipulated that it is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Automobile Workers of America Local No. 287 is a labor
organization affiliated with the Congress of Industrial Organizations.
It admits to membership all production and maintenance employees
of the Company, except clerical and supervisory employees.
International Moulders Union Local 177 is a labor organization
affiliated with the American Federation of Labor. It admits to mem-
bership all production and maintenance employees of the Company,
except pattern makers and clerical and supervisory employees.
Pattern Makers Association of Indianapolis and Vicinity is a,labor
organization affiliated with the Pattern Makers League of North
11
BORG-WARNER CORPORATION 541
America, which in turn is affiliated with the American Federation of
Labor. It admits to membership pattern makers employed by the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company and its predecessor in ownership of the plant in-
volved herein 2 have engaged in collective bargaining with the
I. M. U. since about 1912'. On June 14, 1937, the Company and the
I. M. U. entered into a written closed-shop agreement to run until
February 1, 1938, in which. the I. M. U. was recognized as "the bar-
gaining agent for all employees of the said Muncie Foundry Division,
except pattern makers." This agreement was renewed on January
31, 1938, for a term of 1 year, and again on March 8, 1939, to run until
May 1, 1940.3
The U. A. W. commenced to organize in the plant in August 1939
and soon had signed designations from a substantial number of the
Company's employees authorizing it to represent them for the pur-
poses of collective bargaining. On September 9, 1939, the U. A. W.
wrote the Company requesting that it be granted recognition as repre-
sentative of the Company's "productive and non-productive workers."
The Company replied on September 14, 1939, that it could not comply
with this request since it was operating under closed-shop agreements
with "A. F. of L. organizations." This stalemate resulted in a shut-
down of the plant on October 9, 1939, when, upon hearing rumors
that the U. A. W. was about to call a strike against the Company,
Warner Gear Division removed from the plant the patterns owned
by it. Being unable to operate without these patterns, the Company
ceased operations and had not resumed them on December 14, 1939,
the date of the oral argument herein.
On the evening of October 9, 1939, 77 members of the I. M. U.
who were also employees of the Company met and voted 73 to 4 to
terminate the agreement dated March 8, 1939, between the I. M. U.
and the Company. On that date, there were approximately 550 mem-
bers of the I. M. U. (an amalgamated local consisting of 5 units), of
whom approximately 184 were employed by the Company. On
October 10, 1939, the Company was notified of the action taken at
this meeting.4
Between October 9 and November 4, 1.939, the Company refused
to enter into a contract with the U. A. W. on the ground that it had
9 Muncie Foundry and Machine Company owned the plant until it was acquired by the
Company on January 30, 1937,
s That the I. M. U. represented a majority of the employees covered by these contracts
on the dates of execution thereof is undisputed.
* For the reasons stated below we find it unnecessary to decide whether or not the
action taken at this meeting either ( 1) was effective in terminating the contract or (2)
entitled the Company to treat the contract as abandoned by the I. M. U.
542 DECISIONS OF NATIONAL LABOR ]RELATIONS BOARD
a closed-shop agreement with the I. M. U. However, on about
October 25 the employees of Warner Gear Division, all being members
of the U. A. W., went out on strike to compel recognition of the
U. A. W. by the Company. This strike was settled on November 4
with the signing of a closed-shop agreement between the Company
and the U. A. W. as a condition of the settlement. This agreement,
running until May 1, 1940, and thereafter unless terminated by 30
days' written notice given by either party, recognized the U. A. W.
as the exclusive bargaining representative of all the Company's em-
ployees, except pattern makers, office employees, foremen , and super-
intendents. Subsequently, the I. M. U. made oral representations
to the Company that it still represented a majority of the employees.
On November 6, 1939, it filed with the Regional Director a petition,
and on November 14, 1939, an amended petition, alleging that a
question concerning representation had arisen in that "The Company
has signed a working agreement with the U. A. W. A. disregarding
the closed shop contract that now exists between the Company and
the petitioner; and the Company now refuses to recognize petitioner
as the exclusive bargaining agency."
In view of these conflicting claims to the right of representing its
employees, the Company chose not to rely on its contract of Novem-
ber 4, 1939, with the U. A. W., and now takes the position that it
will not resume operations until the Board has determined the
representative of its employees.
Upon a consideration of all the foregoing facts, we have con-
cluded that the I. M. U.'s motion made at the hearing to withdraw
its amended petition should be denied. The I. M. U.. having taken
steps to initiate this proceeding and to assert that a question con-
cerning representation exists , and the Board having considered the
I. M. U.'s amended petition as well as that of the U. A. W. before
authorizing a hearing herein ,5 the I. M. U. cannot now successfully
assert its contract with the Company as a bar to a finding in this
proceeding that a question concerning representation exists.
For more than 20 years all pattern makers employed in the plant
have been members of the Pattern Makers and the Company and its
predecessor have bargained with that organization as the represent-
ative of such employees. On March 14, 1939, the Pattern Makers and
the Company entered into a written agreement running until April
, The I. M. U. apparently agrees that its amended petition was an important considera.
tion before the Board when it authorized the hearing , as it makes the following statement
in its brief :
The record shows (Board 's Exhibit 5) that by September 9th the C. I. O. group had
already notified the Company that it represented the majority of the workers and re-
quested exclusive bargaining rights. The C. I. O. also filed a petition for certification
with the Regional Office of the Board about that time . No action was taken on this
petition , presumably because the Regional Office ' recognized the validity of the Moulders'
contract of March, 1939.
BORG-WARNER CORPORATION 543
30, 1940, covering wages, hours, and apprentices. Certification is
desired at this time by the Pattern Makers. in order that the pro-
priety of a unit of the pattern makers may be definitely settled.
We find that a question has, arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNITS
All parties have stipulated that the history of collective bargain-
ing in the plant requires that for the purposes of collective bargaining
there should be two units, as follows:
(a) All employees at the Muncie Foundry in the Pattern
Department, excluding foremen, plant superintendent, clerical
employees, and supervisory employees;
(b) All employees at the Muncie Foundry, excluding em-
ployees of the Pattern Department, foremen, clerical employees,
supervisory employees, and plant superintendent.
It is the desire of the Pattern Makers that this stipulation be
modified so as to include in the Pattern Department unit the working
foreman of the department,' Edward Van Camp. It also requests
that A. Don Carpenter and Merle E. Schultz, who spend more than
50 per cent of their time as pattern makers, but who also have other
duties outside the Pattern Department, should be included in the
unit. The Company has expressly assented to the inclusion of these
three employees and the other parties have made no objection thereto.
We will include them in the Pattern Department unit.
It is also the desire of the Pattern Makers that Charles J. Jackson,
a moulder assigned to the Pattern Department, be excluded from
this unit. Jackson divides his time between the Pattern Department
and the Foundry. The parties make no objection to the Pattern
Makers' request and we will exclude Jackson from the Pattern
Department unit and include him in the plant unit.
We find that all employees of Borg-Warner Corporation (Muncie
Foundry Division), excluding clerical, supervisory, and Pattern De-
partment employees, foremen, and the plant superintendent, consti-
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tute a unit appropriate for the purposes of collective bargaining,
and that said unit will insure to employees of said employer the full
benefit of their right to self-organization and to collective bargaining
and otherwise effectuate the policies of the Act.
We find that all employees in the Pattern Department of Borg-
Warner Corporation (Muncie Foundry Division), excluding clerical
and supervisory employees 6 and the plant superintendent, constitute
a unit appropriate for the purposes. of collective bargaining, and
that said unit will insure to employees of said employer the full
benefit of their right to self-organization and to collective bargain-
ing and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The U. A. W. has presented evidence that -it represents 214 of the
approximately 248 employees in the plant unit exclusive of the
Pattern Department. However, the U. A. W. does not seek certifi-
cation without an election. The financial secretary of the I. M. U.
testified that 148 employees within this appropriate unit were mem-
bers in good standing of the I. M. U. at the time of the hearing.
We therefore find that the question has arisen, concerning repre-
sentation of employees of the Company, exclusive of the Pattern
Department, can best be resolved by an election by secret ballot.
The record is not clear that the I. M. U. desires to appear on the
ballot. We shall direct that it be placed thereon, and if within 5
days from the date of our Direction it notifies the Board that it does
not desire to participate in the ballot, we shall amend our Direction
accordingly.
The assistant business manager of the Pattern Makers testified
that all pattern makers, except apprentices not yet eligible for mem-
bership, are members of the Pattern Makers. The record is not
clear that certification without an election is desired by the Pattern
Makers or that the Company would acquiesce in such certification.
We find that the question that has arisen concerning representation
of employees in the Company's Pattern Department can best be
resolved by an election by secret ballot.
The last pay roll of the Company was dated October 6, 1939. The
U. A. W. and the Company have agreed, without objection from the
other parties, that this pay-roll date should be used in determining
the eligibility of the employees to vote in the election. No reason
appears why the pay roll of October 6, 1939, should not be used for
this purpose and we will follow the wishes of the parties who have
expressed themselves in this respect.
6 Other than A. Don Carpenter. Merle E. Schultz, and the foreman.
BORG-WARNER CORPORATION 545
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLusIONs OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Borg-Warner Corporation (Muncie Foun-
dry Division), Muncie, Indiana, within the meaning of Section 9 (c)
and Section 2 (6) and (7) of the Act.
2. All employees of the Company, excluding clerical, supervisory,
and Pattern Department employees, foremen, and the plant super-
intendent, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the National
Labor Relations Act.
3. All employees in the Company's Pattern Department, excluding
clerical and supervisory employees 7 and the plant superintendent,,
constitute a unit apropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the National Labor Relations
Act.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with Borg-
Warner Corporation (Muncie Foundry Division), Muncie, Indiana,
elections by secret ballot shall be conducted as early as possible but
not later than thirty (30) days from the date of this Direction of
Elections under the direction and supervision of the Regional Direc-
tor for the Eleventh Region, acting in the matter as agent for the
National Labor Relations Board, and subject to Article III, Section
9, of said Rules and Regulations, among the employees of Borg-
Warner Corporation (Muncie Foundry Division), Muncie, Indiana,
who fall within the two groups indicated below who were on the
Company's pay roll dated October 6, 1939, including employees who
did not work during such pay-roll period because they were ill or
on vacation and employees who were then or have since been tem-
porarily laid off, but excluding those employees who have since quit
or. been discharged for cause :
(a) All employees, excluding clerical, supervisory, and Pattern
Department employees, foremen, and the plant superintendent, to
a See footnote 6.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determine whether they desire to be represented for the purposes of
collective bargaining by United Automobile Workers of America
Local No. 287, affiliated with the Congress of Industrial Organiza-
tions, or by International Moulders Union Local 177, affiliated with
the American Federation of Labor, or by neither;
(b) All employees in the Pattern Department, excluding clerical
and supervisory employees (other than A. Don Carpenter, Merle,E.
Schultz, and the foreman) and the plant superintendent, to deter-
mine whether or not they desire to be represented for the purposes
of collective bargaining by Pattern Makers Association of Indianap-
olis and Vicinity, affiliated with the Pattern Makers League of North
America, which in turn is affiliated with the American Federation
of Labor.