Borg-Warner Corp.

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.