Borg-Warner Corp.

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. National Association of Broadcast Engineers and Technicians , CIO, was, on December 30, 1952, and at all times since has been the exclusive representative within the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for the purposes of collective bargaining. 4. By refusing to bargain collectively with National Association of Broadcast En- gineers and Technicians , CIO, as the exclusive representative of the employees in the appropriate unit, KTRH Broadcasting Company has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By such refusal - to bargain and by interrogating and threatening its employees concerning union affiliation and activities , thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Borg-Warner Corporation and International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, CIO and Local No. 979, of the International Union, United Automobile Workers of America, AFL, Party to the Contract. Case No. 13-CA-1685. July 13, 1955 DECISION AND ORDER On March 22, 1955, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respond- ent, the Charging Union, hereinafter called the CIO, and the Party to the Contract, hereinafter called the AFL, each filed exceptions to the Intermediate Report. The Respondent and the AFL each filed a brief and the CIO filed a statement in support of the Intermediate Report, in which it also preserved certain exceptions to rulings of the Trial Examiner. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and for the reasons set forth below has decided to dismiss the complaint in its entirety.' The Trial Examiner found that the Respondent violated Sections 8 (a) (1) and (2) of the Act by including the prospective employees of its newly established transmission department in building B within I The Respondent's request for oral argument is hereby denied as the record and briefs adequately present the issues and the positions of the parties. 113 NLRB No. 18. BORG-WARNER CORPORATION 153 the coverage of its union-security contract with the AFL for the pro- duction and maintenance employees of Respondent's existing facilities at a time when no employees had yet been hired for the transmission department. The Trial Examiner found that the employees of the transmission department did not constitute an accretion to the existing unit of production and maintenance employees, but that they could be represented either as a separate appropriate unit or as part of the existing unit, and were therefore entitled to a self-determination elec- tion in which to decide whether they wished to be separately repre- sented. He concluded that in these circumstances Respondent's execu- tion of union-security provisions applicable to the employees of the transmission department before the group came into existence, and the application of the provisions thereafter, coerced those employees in their choice of representatives in violation of Section 8 (a) (1). He further concluded that this conduct violated Section 8 (a) (2) because the Respondent was aware of the Section 8 (a) (2) charges previously filed by the CIO with respect to the employees of the trans- mission department, and therefore had knowledge of a rival union claim at the time it contracted with the AFL. Unlike the Trial Examiner, we find that the newly hired employees of the transmission department constituted an accretion to the estab- lished production and maintenance unit. The Trial Examiner's find- ing that they could constitute a separate appropriate unit was based on "the fact that [the transmission department] was established to manufacture a new product and housed in a separate building . . . the absence of bargaining history . . . and the substantial number of distinct and different job classifications in the new department." How- ever, we do not agree that the stipulated facts establish that there were significantly distinct and different job classifications in the new de- partment. It was stipulated that 21 of the 29 classifications in the transmission department were substantially the same as classifications employed in the Respondent's other operations, and that the remaining 8 classifications involved skills which were duplicated "in varying degrees" in classifications in the Respondent's other operations. It was also stipulated that manufacturing processes in connection with transmissions are occasionally performed in the old buildings. These facts clearly indicate the existence of a considerable degree of simi- larity between the skills and manufacturing processes required in the manufacture of transmissions and the Respondent's other products. In view of the similarity of skills and manufacturing processes re- quired throughout Respondent's operations, and the additional fac- tors described in the Intermediate Report, such as the centralized con- trol of labor relations and hiring, uniformity of wages, hours, and working conditions, the fact that the new department was staffed with 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a substantial number of transferees from Respondent's other opera- tions, and the proximity of the new building B to the other buildings within the same fenced area, we find that the newly hired employees of the transmission department constituted an accretion to the exist- ing production and maintenance unit. As an accretion to an existing unit, these emplcyees would not, under established Board policy, have been accorded a self-determination election.2 Accordingly , the Re- spondent's extension of its union-security contract with the AFL to those employees in the circumstances of this case did not violate Sec- tion 8 ( a) (1) or (2) of the Act. In so finding, we reject the Trial Examiner's finding that the filing of the charges by the CIO prior to the execution of the contract was sufficient standing alone to estab- lish the CIO as a rival union for representation of the employees in question. Furthermore, in the factual context of this case, we find the Trial Examiner's discussion of Zia Company, 108 NLRB 1134, in- applicable to the determination of the issues herein. As indicated in the Intermediate Report, the Trial Examiner re- ceived certain stipulations of fact between the General Counsel, the Respondent, and the AFL, in which the CIO refused to join. Al- though the CIO urges adoption of the Trial Examiner 's findings as they are favorable to its position, it preserves an exception to the use of those portions of the stipulations in which it did not join as a basis for findings contrary to those of the Trial Examiner. We find no merit in this exception. The General Counsel, who is charged with primary responsibility for prosecuting the case, may properly enter appropriate stipulations with adverse parties concerning facts rele- vant to prosecution of the complaint which his investigation discloses, subject of course, to the right of a charging party to introduce con- trary evidence, or to adduce additional facts which , in its opinion, are material. In this case, the record indicates that the CIO was pre- pared to do neither. Indeed it did not even assert that the stipula- tions were inaccurate, but merely refused to join in certain portions which related to the AFL's representative status in the preexisting unit and certain physical characteristics of the transmission depart- ment. The Marine Engineers' Beneficial Association case,3 relied on by the CIO , does not support its exception , as it deals only with a charging party's right to a hearing after a complaint has issued in lieu of a settlement agreement to which it does not consent. We fur- ther find that the Trial Examiner did not err in denying the CIO a second continuance in order to subpena officials of the Respondent. As the Trial Examiner indicates , the CIO had made no effort to sub- pena any of these witnesses in the 2-month period that elapsed be- 2 Saco-Lowell Shops, 107 NLRB 590, Bulova Research and Development Laboratories, Inc., 110 NLRB 1036 Marine Engineers' Beneficial Association v n L. R B , 202 F 2d 584 (C. A. 4). BORG-WARNER CORPORATION 155 tween the issuance of the complaint and the hearing, and had not even talked with any of these individuals and consequently had no knowl- edge of what testimony they might give if called as adverse witnesses. In these circumstances, the CIO's offer of proof was patently inade- quate and therefore properly rejected. The Trial Examiner's denial of the CIO's motion for a continuance is therefore affirmed. On the basis of the foregoing findings and reasons, we shall dismiss the complaint. [The Board dismissed the complaint.] MEMBER LEEDOM took no part in the consideration of the above De- cision and Order. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the Labor Management Relations Act of 1947, 61 Stat. 136 (herein called the Act), was heard in Decatur, Illinois, on January 4 and 5, 1955, pursuant to due notice to all the parties. The complaint, issued on November 2, 1954, by the General Counsel of the National Labor Relations Board,' and based on charges duly filed and served , alleged that the Respondent had engaged in unfair labor practices proscribed by Section 8 (a) (1) and (2) of the Act. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations but denied the commission of the alleged unfair labor practices. All parties were represented at the hearing by attorneys. They were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence , to argue orally, and to file briefs and proposed findings and conclusions. At the close of the hearing the Respondent and the AFL moved to dismiss the complaint . This motion was taken under advisement ; it is disposed of as will appear hereinafter in this report.2 Motions by counsel for the CIO to continue the hearing until he had an opportunity to seek enforcement of a subpena and to make an offer of proof were denied ? Oral argument on the merits was waived by the parties. On or before February 18, 1955 , all parties submitted briefs which have been fully considered by the Trial Examiner. The findings herein are based on a series of stipulations of fact entered into by the General Counsel, the Respondent, and the AFL whereby they agreed that their stipulations be "accorded full faith, credit and weight , as competent, credible, wholly substantiated evidence." The CIO joined in most of these stipulations but declined to do so as to certain particulars set forth therein. On the other hand, the CIO offered no evidence that would tend to controvert any of the stipulated matters. As to those portions of the stipulations to which it did not agree the CIO now asserts in its brief that it was denied an opportunity to cross-examine witnesses for the Respondent and, further, that it was foreclosed from calling witnesses of its own when the Trial Examiner refused to grant its request for a continuance. Actually, other than to engage in a last minute effort at summoning first 1 and then 3 of the company officials and supervisors as adverse witnesses, the CIO made no effort to present any testimony of its own. In view of the argument which 'The General Counsel and the staff attorney appearing for him at the hearing are referred to herein as the General Counsel and the National Labor Relations Board as the Board The above-named Company is referred to as the Respondent or Boig -Warner, the Chaiging Party as the CIO, and the Party to the Contract as the AFL. 0 When this Caine motion was offered at the outset of the hearing it was denied by the Trial Examiner Prior to the heaiing, Respondent filed a motion to dismiss which was referred to Trial Examiner Charles W. Schneider who, by older dated December 14, 1954, granted it in pact and denied it in part This is discussed in section III, B, infra. 3 Pursuant to the request of counsel for the Charging Party, set forth in his brief, the petition to revoke , the answer thereto , and the ruling thereon, filed in connection with the subpena in evidence as CIO's Exhibit No. 2, are hereby made part of the record herein. 156 DECISIONS Or NATIONAL LABOR RELATIONS BOARD the Charging Party now urges, it might be well to set forth the sequence of events on the last day of the hearing, all of which appears in the record. Prior to the noon recess, and after the General Counsel rested, counsel for the CIO asked counsel for Respondent if Mr. B. T. Andrix, vice president and director of industrial relations for the Company, would be available to testify and then stated "I propose to call Mr. Andrix as a witness for adverse examination. .. . I propose to examine Mr. Andrix briefly. . . . I think with that, we will rest." After the noon recess, counsel for Respondent stated that, pursuant to Mr. Friedman's request, he had endeavored to contact Mr. Andrix but without success. Mr. Fried- man then moved to recess the hearing until the following morning in order that he have an opportunity to serve a subpena on the proposed witness. This motion was strenuously opposed by Respondent and the AFL. The Trial Examiner over- ruled their objections and recessed the hearing for approximately 2 hours to permit the CIO to serve process on its prospective witness. When the hearing reconvened Mr. Friedman stated that during the recess he had endeavored to subpena Andrix and two company supervisors but that he had effected service on only one, Mr. Warren Carter. When the latter did not appear, counsel for the CIO moved to adjourn the hearing for such time as would be necessary for the General Counsel to secure an order from a federal district court enforcing the subpena. This motion was opposed by the General Counsel and all other parties. After reviewing the fact that the CIO had made no effort to subpena any of these witnesses in the 2-month period that elapsed between the issuance of the com- plaint and the opening of the hearing and upon consideration of the additional fact that counsel conceded that he had not even talked with any of the individuals concerned so that it was apparent he had no knowledge of what testimony they might give when called to the stand as adverse witnesses, I denied his motion for a continuance. The Charging Party, having no other evidence to offer, then rested. Relying on Marine Engineers' Beneficial Association v. N. L. R B., 202 F. 2d 546 (C. A. 3), the CIO now urges reconsideration of its motion for a continuance. The cited case plainly holds that once a complaint is issued the Charging Party is entitled to a hearing. That right, however, was accorded the CIO here. More- over, after the General Counsel rested, it was afforded an opportunity to present whatever relevant, material, and competent testimony it had. After offering one exhibit and then joining in a major portion of the various stipulations to which the other parties had agreed, the CIO then sought time to engage in a search for witnesses, a step which adequate preparation and diligent service of subpenas prior to trial should have obviated. In view of these circumstances and upon reconsideration of the motion for a continuance, the motion is again denied. St Louis Stave & Lumber Co. v. United States, 177 F. 178, 180 (C. A. 8); Armour & Co. v. Kollmeyer, 161 F. 78, 80-81 (C. A. 8); cf. California Apparel Creators v. Wieder of California, 162 F. 2d 893, 901-902 (C. A. 2), cert. denied 332 U. S. 816. Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Borg-Warner, an Illinois corporation, with general offices in Chicago and sub- sidiaries and divisions which operate plants in various States of the United States and the Dominion of Canada, is engaged in the business of manufacturing a variety of automotive, electrical, household-appliance, and other products for distribu- tion and sale. Only the Marvel-Schebler Products Division of Borg-Warner, located in Decatur, Illinois, is involved in the instant matter. The latter division annually sells and ships finished products valued in excess of $1,000,000 per year to points located outside the State of Illinois Upon the foregoing facts, the Respondent concedes, and I find, that it is engaged in commerce within the meaning of the Act. IT. THE LABOR ORGANIZATIONS INVOLVED The CIO and AFL are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events The AFL was certified as the collective-bargaining agent of the Respondent's production and maintenance employees on January 8, 1951, following an election held pursuant to an agreement for consent election. Borg-Warner Corporation, BORG-WARNER CORPORATION 157 Case No. 13-RC-1659 (not reported in printed volumes of Board Decisions and Orders ). On February 26, 1951, the Respondent and the AFL signed their first collective-bargaining agreement. One year later they entered into another con- tract. Early in January 1954, and pursuant to a notice to terminate as contained in their current contract, the Company and the AFL began negotiations looking to the execution of a new agreement . After a series of meetings the parties reached accord on numerous issues but arrived at a stalemate as to other matters. On March 9, the AFL called a meeting for a strike vote on March 11 . On the latter date the employees voted to authorize a strike. Two days later, however, the parties met and resolved their differences . On March 15, a majority of the employees ratified the proposed contract and on the following day the AFL presented cards signed by 385 out of 454 employees authorizing it to represent them. That same day the Company and the AFL signed their third and presently existing con- tract, which, among other provisions, contains a union-security clause and covers a 2-year term. In the meantime, on March 11 , the CIO filed unfair labor practice charges with the Regional Office of the Board, alleging that the Company had unlawfully as- sisted the AFL by recognizing it as bargaining agent for employees to be hired in a new building, then under construction (referred to by the parties and here- after as "building B"), and by granting advance seniority and preferential hiring in the new department to members of the AFL. On March 12, the CIO notified the Company that it represented a majority of the production and maintenance em- ployees in the plant, and requested recognition and a conference to commence col- lective bargaining on behalf of the employees. Insofar as the record indicates, the Company made no response to this demand . On the other hand, the CIO did not follow up its claim to a majority by filing a representation petition with the Board either within the 10-day period established in General Electric X-Ray Corp., 67 NLRB 997, or at any time thereafter. B. Contentions of the parties The General Counsel 's complaint originally alleged that the Company had vio- lated the Act because ( 1) it had signed the 1954 contract with the AFL not- withstanding the CIO claim to represent a majority of the employees and (2) the aforesaid contract covered not only all employees then on the payroll but also applied, prospectively, to all employees who would be hired to work in building B, where the Company planned to manufacture automatic transmissions. Prior to the hearing before the Trial Examiner , the Respondent moved to dismiss the complaint, citing William D. Gibson Co., et al., 110 NLRB 660. The General Counsel conceded that the motion should be granted insofar as the complaint al- leged that the contract violated the Act in its application to those who were employed by the Company at the time of its execution , and Trial Examiner Schneider so ruled. There remained for disposition at the hearing before the Trial Examiner only the issue as to whether it was violative of Section 8 (a) (1) and (2) of the Act for the Company and the AFL to include within the scope of their contract those employees who would be hired in building B when work began there. At the outset of the hearing Respondent moved to dismiss this allegation in the complaint on the ground that the holding in Gibson, supra, left no issues to be tried and, further, that basically only a question of representation was involved so that resort should be had to a proceeding under Section 9 rather than an unfair labor practice case under Section 8 of the Act . This motion was de- nied. C. The facts Prior to 1954 the Company was engaged in the manufacture of carburetors, jet engine pumps , power brakes, and hydraulic pumps. During 1953 it received an order from the Ford Motor Company for the production of "Fordomatic" auto- matic transmissions. At no time previously had the Respondent ever engaged in the manufacture of this product . As a result of this fact and the size and character of the order, fulfillment of the contract required the construction of building B where the necessary manufacturing operations could be performed . For that pur- pose, in August 1953 the Company acquired additional acreage adjacent to the tract upon which the then existing buildings were located. Because of the topography of the land, fire hazards, traffic conditions , and various other problems, building B was located about 800 feet from the other existing buildings at the plant. Although the first employees went to work in the new building on March 31, actual produc- 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of automatic transmissions did not begin there until May 1954.4 During the period from May through September 10, the Company hired 79 new employees to work there. By September 1954 there were about 160 employees in the trans- mission department of whom 101 had, at one time or another, worked in the old buildings. The job classifications, skills, and operations performed on all of the products manufactured by the Respondent are substantially the same in 21 of the jobs con- nected with the production of automatic transmissions in building B and the manufacture of carburetors, jet engine pumps, power brakes, and hydraulic pumps in other departments of the plant. There are also 21 other classifications used in the production of other products but not in the manufacture of automatic trans- missions. Finally, there are eight classifications used solely in the production of automatic transmissions and nowhere else in the plant.5 The Company's labor relations are under the direction of one man, Mr. B. T. Andrix, who is also in charge of the training program for all employees. All of the plant properties are enclosed by a common fence and there is one common entrance from the highway to the property. There is one employment office through which employees for all departments are hired and one payroll section for the entire plant. All of the different products manufactured by the Company are tested in one testing and control laboratory which is now located in building B; formerly this laboratory was in one of the original production buildings. All employees are covered by the same health and welfare program. The same medical staff renders medical care and gives physical examinations to all the employees and one nurse furnishes first aid to an employee injured in any of the departments or buildings All production and maintenance employees in the various departments in all build- ings comply with the same safety regulations. There is a common water supply, sewage system, and electricity for all buildings and one switchboard serves all tele- phones on the property. The same badge system is used to identify all employees and all of the guards are under the direction of one captain, who, in turn, reports to Mr. Andrix. There is one fire brigade and one fire protection system for com- batting fires in any place on the company premises. The agreement of March 16, 1954, dealt in detail with the working conditions of those who would be employed in the transmission department and included sec- tions on grievance representation, seniority, transfers into and out of the department, and rates of pay. There is no dispute that the parties intended that the contract apply to the employees to be hired in building B and that the union-security provisions,6 as well as all others,7 were applied to that department from the time it began opera- tions and went into production. The Company contends that there was nothing unusual about the fact that this contract covered the automatic transmission department before the later began opera- tions. Insofar as the past practices of the Company and the AFL are concerned they tend to support this position. Thus, when the Marvel-Schebler Products Divi- sion was first established in 1950 it manufactured carburetors only. In October of that year the decision was made to establish the jet engine pump department. Al- though actual production in the latter did not begin until April 1951, the collective- bargaining agreement executed by the Company and the AFL on February 26, 1951, covered both the jet engine and carburetor departments. In November of that same year the Respondent opened a power brake department and the parties interpreted 4 Prior to March 16, 1954, approximately 41 employees were engaged in the old build- ings on tooling up and other preparatory work in connection with the manufacture of the new product. 6 These last 8 classifications, however, utilize skills and operations which, in varying degrees ale used by 1 or more of the 21 classifications not employed in the production of transmissions O The contract provided that old employees who were not members of the AFL 30 days after the effective date of the agreement would not be requited to become members, but that all old employees who were members 30 days after the effective date, all new em- ployees following expiration of a 45-day probationary period, and all old nonmembers who subsequently joined the AFL, would be requited thereafter to maintain ( or, in the case of new employees, acquire and maintain), membership in good standing in the AFL as a condition of continued employment. Further provisions requited that the Company deduct dues from the v.ages of all those who signed checkoff authorizations. These latter clauses were likewise applicable to the transmission department 7With the exception of section 15 (b) of the contract which dealt with transfers. This section specifically provided that it would not be applicable to building B until Septem- ber 1, 1955. BORG-WARNER CORPORATION 159 their contract of the preceding February as applicable to the employees hired for this unit. Similarly, the hydraulic pump department was not established until the summer of 1952 and did not go into production until the following November. The parties, however, construed their second contract which they had signed in February of that year, as covering all the employees subsequently hired for the hydraulic pump department. D. Conclusions The Board has held that a contract executed between an employer and a labor organization before a new plant or division has commenced operations constitutes no bar to a representation election sought by a rival union. General Motors Cor- poration, et al., 111 NLRB 841; Michigan Limestone Division, United States Steel Corporation, 106 NLRB 1391, footnote 1; Armstrong Cork Company, 106 NLRB 1147, 1148-1149; W. H. Anderson Co., 99 NLRB 820, 821. Further, it has held the execution of a union-security contract covering such prospective employees to be an unfair labor practice. Local 404, International Brotherhood of Teamsters, etc., 100 NLRB 801, 810-811; Chicago Freight Car & Parts Co., 83 NLRB 1163, 1164-1165. The proviso to Section 8 (a) (3) permits an employer and a labor organization to execute an agreement which requires membership in the latter, only in the event " . such labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit covered by such agree- ment when made." [Emphasis supplied.] The General Counsel and the CIO con- tend that since there were no production and maintenance employees in building B on March 16, there were no employees in the new department for the AFL to repre- sent so that the appropriate unit on that date was limited to those sections of the plant which were actually in operation at that time. The Respondent and the AFL rely heavily on William D. Gibson Co., Division of Associated Spring Corporation, supra, in which the Board upheld the validity of a union-security contract executed by an employer and an incumbent labor organization during the pendency of a representation proceeding. In so holding, the Board stated that "stability in industrial relations . . . requires that continuity in collecive-bargaining agreements be en- couraged, even though a rival union is seeking to displace an incumbent." Ibid. Both Respondent and AFL contend that Gibson is applicable to the instant situation and is authority for upholding the agreement in question. However, as I understand the decision in that case, it appears that the rule enunciated therein is limited "to situations where an employer continues normal contractual relations with an incum- bent union.. . ." General Electric Company, 110 NLRB 1109. [Emphasis supplied.] That characterization would hardly apply to the AFL with respect to the trans- mission department at the time in question for the first employees went to work in building B only on March 31 and production did not begin there until the follow- ing May. As to a department that was not even staffed on March 16, it does not appear that the AFL could have been an "incumbent" labor organization. For this reason, it is my conclusion that the rule announced in Gibson is inapposite here. This, of course, would not be true if, as the Respondent contends, the transmission department, instead of being a separate unit within the meaning of Section 9 (a), is, instead, a mere accretion to the existing plantwide unit. The Budd Company, 107 NLRB 116. In the latter case the Board found that a new operation which increased the number of employees did not change the character of the unit because the pro- duction processes were not materially altered, no new skills were introduced, and less than 1 percent of the job classifications were changed. But that is not the situation in the instant proceeding, where, in addition to a number of elements which set the transmission section apart from the rest of the plant such as its separate building and related factors, a substantial number of distinct and different job classifications were created for the work in the new department.8 Nor is it material to the issue here that preceding contracts of the Respondent and AFL were written to cover prospective employees in new departments that would be set up during the contract term. Al- 8 The AFL urges that the decision in Hess, Goldsmith & Company, Inc., 110 NLRB 1384, is in point. There the Board held that the mere acquisition of a new plant does not of itself warrant the establishment of a separate unit. That decision, however, would appear to he distinguishable from the instant case for in Hess the Board found that the employer operated the two plants (the new and the old) as a single textile weaving mill, with a similarity of employee skills, as well as common facilities and products. Apart from be- ing separated geographically, the two plants involved therein presented none of the factors which differentiate the transmission department from the rest of the Respondent's plant in the present case. Q 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD though both of these parties now urge that this established practice tends to support the validity of the contractual provisions covering the prospective employees in the transmission department, their argument is without merit. As the Court of Appeals for the Sixth Circuit has observed, "An employer cannot, by dealing with a union, constitute it the lawful representative of employees who have not chosen it to repre- sent them." Ohio Hoist and Mfg. Co. v. N. L. R. B., 217 F. 2d 652, 655 (C. A. 6). There is much evidence that the transmission department could properly be an appropriate bargaining unit by itself. Thus, the fact that it was established to manu- facture a new product and housed in a separate building, as well as the absence of any bargaining history for the employees therein and the difference in job classifica- tions referred to above, are all factors which the Board has held to indicate the appro- priateness of a separate unit. Delta Tank Mfg. Co., 100 NLRB 364, 365; Price Na- tional Corp., 102 NLRB 1393, 1394-1395; Potlatch Forests, Inc., 94 NLRB 1444, 1445-1448; Armstrong Cork Co., 106 NLRB 1147, 1148-1149; Ware Laboratories, Inc., 98 NLRB 1141, 1142-1143. On the other hand, the numerous bases for conclud- ing that the transmission employees have a community of interest with the produc- tion and maintenance employees in other departments of the plant, such as the cen- tralized employment office, the common labor relations program, and the similarity of many job classifications, would tend to support the conclusion that the transmission department could appropriately be part of the existing plant unit. Delta Tank Mfg. Co., and cases cited supra. In the foregoing cases, where the factors which would compel a finding that the new department or operation was appropriately a separate bargaining unit were in balance with those which would dictate a finding that it was an accretion to the existing unit, the Board directed Globe-type elections, in order to "permit employees at the new . operation to decide whether they wish to be separately represented even though the new operation is in close proximity to the old one, and has even been partially staffed with old employees." Armstrong Cork Com- pany (Lancaster Floor Plant), 106 NRLB 1147, at 1149. See also: Columbia Broad- casting System, Inc., 108 NLRB 1468; Hertner Electric Co., 99 NLRB 567, 569; Sprague Electric Co., 98 NLRB 533, 535. More significantly, in The Zia Company, 108 NLRB 1134, the Board held that a distinct group of employees, previously outside the bargaining unit in which they might appropriately be included, should not be placed in a bargaining unit where they would be a minority without having an oppor- tunity to express their preference at a Globe election. In so holding the Board de- clared "adherence to this principle will, in the opinion of the Board, tend to insure that the wishes of small groups of employees no longer will be thwarted by the numerical superiority of employee-members of an existing historical unit from which the former have been excluded. . From these cases it is my conclusion that here, even after building B was staffed, the unit question could only be decided by a Board-directed poll of the employees as to the bargaining group which they preferred. Until such an election was held and the organizational preferences of the employees therein determined, the Respondent would not be free to contract with a labor organi- zation as to the transmission department because only then would it be clear as to what constituted the appropriate collective-bargaining unit. Section 7 of the Act sets forth as a basic statutory policy that employees be afforded the "right . . . to bargain collectively through representatives of their own choos- ing . . . and to . . . refrain from . . . such activities." In accord with this pro- vision the Board has held that employees in a distinct new group must be afforded an opportunity to decide by the vote of their own separate majority whether they care to become part of the established unit. The Zia Company, supra. Further, the Board has held that it is a violation of the Act for an employer and a labor organiza- tion to blanket them into the existing unit by the terms of a collective-bargaining agreement executed before the employees in the new plant or operation have had an opportunity to express their unit preference. Chicago Freight Car & Parts Co., 83 NLRB 1163, 1164-1165; Local 404, International Brotherhood of Teamsters, etc., 100 NLRB 801, 810-811. Accordingly, since the transmission department in the instant case could appropriately be treated as a separate unit or part of the existing unit but only after the employees therein indicated their preference in this regard, II conclude and find that it was a violation of Section 8 (a) (1) of the Act for Respond- ent and the AFL to extend the contract to building B prior to any such manifestation of the employees' desires and certainly on March 16, when none of the employees had even been hired for the new department. Ibid.9 9In the Chicago Freight Car case where there were fewer employees at the new plant than there were at the old, the Board disapproved of the inclusion of the former in an overall bargaining group without affording the minority an opportunity to indicate their preference. Counsel for the Respondent, in oral argument and in his brief, represents BORG-WARNER CORPORATION 161 The Board dismissed an 8 (a ) (2) allegation in the Chicago Freight Car case be- cause there was no rival union on the scene at the time the employer signed the agreement in question. That is not the situation here. On March 11, the CIO filed a charge against the Respondent alleging that it was unlawfully assisting the AFL by recognizing the latter as a bargaining agent for employees to be hired in building B and by granting advance seniority therein to members of the AFL, as well as other favorable terms. The Respondent was aware of these charges at the time it signed the agreement with the AFL on March 16. The grant of exclusive recognition as bargaining agent for the prospective employees of the transmission department was in itself an act of assistance to the AFL; coupled with the compulsory union member- ship provisions, the agreement gave the AFL a decided advantage over any rival not similarly favored. Consequently, it is my conclusion, and I find, that by negotiating those provisions relating to building B and subsequently applying them to the em- ployees therein, without having satisfied the conditions set forth in Section 8 (a) (3) (i) of the Act, the Respondent contributed support to the AFL and thereby interfered with and coerced the employees in the exercise of their organizational rights. In so doing the Company violated Section 8 (a) (2) of the Act as well as 8 (a) (1). Harrison Sheet Steel Co. v. N. L. R. B., 194 F. 2d 407, 410 (C. A. 7); and Sunbeam Corp., 99 NLRB 546, 550-554. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the 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 com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action necessary to effectuate the policies of the Act. Having found that the agreement between the Respondent and the AFL dated March 16, 1954, was invalid in its application to the transmission department be- cause the unit therein provided was not then appropriate, and in order to insure to the employees of the transmission department the full and free exercise of the rights guaranteed in Section 7 of the Act, I shall recommend that the Respondent withdraw and withhold recognition from the AFL as the representative of the employees in said department for the purpose of collective bargaining until such time as the AFL may be certified as their representative by the Board. I shall also recommend that the Respondent cease and desist from giving effect to the agreement of March 16, 1954, with the AFL, insofar as it applies to the aforesaid department, as well as to any extension, renewal, modification, or supplement thereof, or to any superseding con- tract with that labor organization or any affiliate thereof, until such time as that organization or an affiliate shall have been certified by the Board as the representative of the employees of the transmission department. Nothing herein, however, shall be deemed to require the Respondent to vary those wage, hour, seniority, and other substantive features of its relations with the employees of the transmission department as the Respondent may have established in performance of the agreement of March 16, 1954, or said contract as extended, renewed, modified, supplemented, or super- seded. Having found that the Respondent violated Section 8 (a) (2) and (1) of the Act by coercing the employees of the transmission department to become and remain mem- bers of the AFL, thereby compelling the payment of dues to that organization and, that, ultimately, the number of employees in building B will exceed those in the rest of the plant From this he argues that the Board need not be concerned, as it was in Chicago Freight Car, that in the future the new department will he dominated by the employees in the rest of the plant Counsel's representation was not developed at the hearing, for the record indicates that at all times material the transmission employees were a minority group. On the other hand, even assuming that the Respondent plans to enlarge its trans- mission department to the point where the employees therein eventually become the ma- jority group, it would appear that the Boaid ruling set forth in the above case and Zia should apply to the situation presented here with even greater force. To hold otherwise would be to deny to the employees of building B an opportunity to express their repre- sentation preferences for the entire term of the 2-year contract with the AFL and dur- ing that period subject a prospective, or actual, majority to the wishes of a minority. 162 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD in fact, checking off such dues from the wages of all who signed authorizations, I shall recommend that Respondent make whole to such employees the amounts deducted from their wages for that purpose from the dates when such deductions were first made, as shown by Respondent's record, to the date of compliance with the recommendations herein. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The AFL and the CIO are labor organizations within the meaning of the Act. 2. By entering into the agreement of March 16, 1954, and by requiring the em- - ployees of the transmission department to become members of the AFL, the Re- spondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By engaging in the conduct described in the foregoing paragraph the Respondent has also rendered unlawful assistance to the AFL and thereby violated Section 8 (a) (2) 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. [Recommendations omitted from publication.] Sunnyland Packing Company and Sunnyland Poultry Company I and United Packinghouse Workers of America, CIO, Petitioner. Case No. 10RC-3006. July 13,1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Frank E. Hamilton, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. Sunnyland Packing Company, herein called Packing, is engaged in processing and selling meat and meat products at Thomasville, Georgia. Sunnyland Poultry Company, herein called Poultry, is en- gaged in processing and selling chickens in an adjoining building lo- cated within the same fenced area. The employees of the two Com- panies use the same entrance and cafeteria, and the gate watchmen of Packing perform protection duties for both Companies. All of the chickens processed by Poultry are purchased by Packing. Packing prepares the payroll for Poultry, which is billed for such service. Al- though each Company is a separate legal entity with separate books, hiring, and supervision, they have in common 2 officers, 1 of whom, the president, is the final authority on: overall labor relations policy. In these circumstances, and upon the record, we find that Packing and Poultry constitute a single integrated enterprise and employer? I Subsequent to the hearing, the Petitioner moved to amend the name of the Employer to the above form. Absent objection, we grant the motion. 2 Sanitary Mattress Company, Rest Line of California, Inc., 109 NLRB 1010, at' 1011 ; Marvel Roofing Products Incorporated, of at., 108 NLRB 292, at 293. 113 NLRB No.12.