Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Jan 31, 1942

38 N.L.R.B. 866 (N.L.R.B. 1942)

In the Matter Of MARVEL-SCHEBLER DIVISIONS BORG-WARNER COR-
PORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS
or AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGAN-
IZATIONS
Case No. C-1968.-Decided January 31, 1942
Jurisdiction : automobile parts manufacturing industry.
Unfair Labor Practices
Discrimination: employer who under pressure by committee of sole bargaining
representative discharged and refused to reinstate employee because of mem-
bership in rival union held to have surrendered its "managerial responsi-
bilities" and to have adopted the committee's "factional animus"; charges
of, dismissed where committee of bargaining representative, although having
a factional motive, based its protest as to reemployment of employee upon
an arguable interpretation of seniority rights under sole collective bargaining
contract with employer.
Remedial Order: reinstatement and back pay awarded.
Mr. Earl R. Cross, for the Board.
Mr. Marion K. Kellogg, of Detroit, Mich., for the respondent.
Mr. Maurice Sugar and Mr. Jack M. Tucker, of Detroit, Mich., for
the C. I. O.
Mr. J. L. Busby„ of Detroit, Mich., for the A. F. L.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Union, United Automobile Workers of America, affiliated with the
Congress of Industrial Organizations, herein called the C. I. 0., the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Seventh Region (Detroit, Michigan), is-
sued its complaint dated July 3, 1941, against Marvel-Schebler Divi-
sion, Borg-Warner Corporation, Flint, Michigan, herein called the
respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
38 N. L R. B., No. 154.
866
MARVEL-SCHEBLER DIVISION, BORpG-WARNER, CORPORATION 867
meaning of Section 8 (1) a1nd (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49, Stat. 449, herein called the Act.
Copies of the complaint and notices of hearing thereon were duly
served upon the respondent and the C. I. O.
With respect to the unfair labor practices the complaint alleged
in substance (1) that the respondent discouraged membership in the
C. I. O. and encouraged membership in Local 156, International
Union, United Automobile Workers of America, affiliated with the
American Federation of Labor, herein called Local 156, by discharg-
ing Gladys Nimcheski on or about March 26, 1940. and Harriett Stitt
on or about March 29, 1940, and thereafter refusing to reemploy
them, because they joined and assisted the C. I. O. and refused to
join Local 156 and because officers and committeemen of Local 156
insisted upon their discharge by reason of their membership and
activity in the C. I. 0.; and (2) that thereby and by warning its
employees that unless they joined Local 156 their employment would
be insecure, by threatening employees with discharge if they engaged
in activities on behalf of labor organizations other than Local 156,
by permitting certain employees, shop stewards, officers, and com-
mitteemen of Local 156 on its premises and during working hours
to threaten, intimidate, and coerce other employees into abandoning
their membership in and/or support of the C. I. 0., by refusing to
accord Nimcheski and Stitt the rights and privileges to which they
were entitled under a certain contract between the respondent and
Local 156, and by other acts, the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
On July 21, 1941, the respondent filed its answer in which it ad-
mitted certain allegations in the complaint as to the nature of the
respondent's business, but denied that it had engaged in any unfair
labor practices and, with respect to the alleged discharges of Nimcheski
and Stitt, averred, in effect, that it laid off Nimcheski because it was
obligated to do so under the seniority provisions of its contract with
Local 156, and that it laid off Stitt for disciplinary purposes.
Pursuant to notice, a hearing was held on July 21 and 22, 1941,
at Flint, Michigan, before Horace A. Ruckel, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the re-
spondent, and the C. I. O., were represented by counsel and partici-
pated in the hearing.' All parties were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the, issues. At the close of the Board's case,
'' Local 156 was not served with ) notice and did not intervene . However , J L. Busby,
organizer for the International Union, United Automobile Workers of America, affiliated
with the American Federation of Labor, herein called the A. F L , filed his appearance and
was present at the hearing , although he did not participate in the proceedings.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner granted without objection a motion to conform
the complaint to the proof in respect to formal matters. At the con-
clusion of the Board's case and again at the conclusion of the hear-
ing, counsel for the respondent moved to dismiss the complaint. The
Trial Examiner reserved ruling upon the motions, which he later
denied in his Intermediate Report. During the course of the hearing,
the Trial Examiner ruled upon other motions and upon objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner made at the hearing and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed. At
the close of the hearing the parties were advised that they might
argue orally before the Trial Examiner and submit briefs for his
consideration within 15 days from the close of the hearing. None
of the parties argued orally or filed a brief.
The Trial Examiner thereafter filed his Intermediate Report dated
September 20, 1941, copies of which were duly served upon the
parties, in which he found that the respondent had engaged in un-
fair labor practices affecting commerce, within the meaning of Sec-
tion 8 (1) and (3) and Section 2 (6) and (7) of the Act. He ac-
cordingly recommended that the respondent cease and desist from
engaging in the unfair labor practices and that it reinstate with
back pay Harriett Stitt and Gladys Nimcheski. On November 4,
1941, the respondent filed exceptions to the Intermediate Report and
a brief in support of its exceptions.'
The Board has considered the respondent's brief and its exceptions
to the Intermediate Report and, except insofar as the exceptions are
consistent with the findings, conclusions, and order set forth below,
finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS of FACT
1. THE BUSINESS OF THE RESPONDENT
Marvel-Schebler Division, Borg-Warner Corporation, an Illinois
corporation having its principal office and place of business at Flint,
Michigan, is engaged in the production, assembly, sale, and distribu-
tion of automobile gasoline carburetors. The materials used by the
respondent in the manufacture of its products consist principally of
semi-fabricated parts, such as cast iron, aluminum castings, and screw
machine parts. During the first 9 months of 1940, the value of the
materials used at the respondent's Flint, Michigan, plant was in
excess of $100,000, and approximately 25 percent of such materials
2 On the same date, the respondent withdrew a request , which it had previously made,
for oral argument.
MARVEL-SCHEBLER DIVISION, BORiG-W.ARNEIR CORPORATION 869
were purchased at, and shipped to the plant from, sources outside
the State of Michigan. During the year 1940, the value of the re-
spondent's finished products, consisting mainly of automobile car-
buretors, was in excess of $100,000, and approximately 86 percent
of such products were sold and shipped to customers outside the
State of Michigan.
II. THE ORGANIZATIONS INVOLVED
International Union, United Automobile Workers of America,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the respondent
at its Flint, Michigan, plant.
Local 156, International Union, United Automobile Workers of
America, affiliated with the American Federation of Labor, is a
labor organization admitting to membership employees of the re-
spondent at its Flint, Michigan, plant.
III. THE UNFAIR LABOR PRACTICES
A. Background
In 1936, the C. I. O. organized the respondent's employees as mem-
bers of its Local 156, and on April 15, 1937, Local 156 entered into
a contract with the respondent whereby the latter recognized it as
the bargaining agent for its members. Another similar contract was
entered into between the C. I. O. and the respondent on October 4,
1938, to run for a period of 6 months and thereafter until terminated
by either party upon 30 days' notice. In January 1939, a factional
split occurred, as the result of which Local 156 severed its relations
with the C. I. O. and became affiliated with the A. F. L. Some of
the respondent's employees, however, retained their membership in
the C. I. 0., and paid dues to that organization. On November 1,
1939, following its transfer of affiliation, Local 156 entered into a
contract with the respondent. In that contract the respondent recog-
nized Local 156 as the exclusive representative of all its employees,
with some stated exceptions, for the purposes of collective bargain-
ing. This contract continued in effect until January 6, 1941, when
another exclusive bargaining contract was executed, and the latter
was in force at the time of the hearing. The contract entered into in
1939 with Local 156 was in effect at the time of the occurrence of the
events which form the subject matter of the instant case.
B. The discharges
1. Harriett Stitt
Stitt was first employed by the respondent in 1933 in the sundry
department and, except for occasional brief transfers to other depart-
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments, continued to work in that department thereafter. She be-
came a member of Local 156, then affiliated with the C. I. 0., but
took no active part in its affairs. After the split in January 1939,
Stitt remained a member of Local 156, but withdrew her membership
several months later. She joined the C. I. 0., paying her dues to that
organization.
After she joined the C. I. 0., Stitt was laid off and rehired several
times in 1939, and once early in 1940 without, however, losing her
seniority status, which was 124th among approximately 500 employ-
ees on the respondent's seniority list.3 After the third such lay-off,
which occurred in the latter part of November 1939, Stitt complained
to John McGill, a representative of the C. I. 0., that she was being
discriminated against by the respondent, whereupon McGill and
Stitt called upon S. W. Gray, the respondent's general manager.
McGill asked Gray if the negotiating committee of Local 156 4 had
issued orders that he dismiss Stitt. Gray told him that this was
correct and that Stitt would have "to negotiate with" the Committee.
McGill then asked Gray if he thought "that wasn't a violation of the
labor law." Gray replied "I don't know much about the labor laws,
and I don't know much about your union, but if you want to know
what I think about it, I think you are a bunch of damn racketeers."
The foregoing account of the meeting between Gray and McGill is
based upon the uncontradicted and mutually corroborative testimony
of McGill and Stitt. Gray, though present throughout the hearing,
was not called as a witness. We find that Gray made the statements
attributed to him by McGill and Stitt.
On December 6, 1939, shortly after the above-mentioned meeting,
Stitt was recalled to work. She was again laid off on December 28,
recalled to work on January 8, 1940, laid off again on February 15,
1940, and recalled on March 26. As noted below, Joseph DeCourval,
plant superintendent, testified that she was recalled on this occasion
after the committee stated that it "thought she was punished long
enough." 5 Stitt worked until March 29, when she was discharged 6
by her foreman, David Fowler, who gave her no reasons for this
action, telling her simply that she would be notified when she was
wanted. Stitt's discharge occurred 3 days after that of Nimcheski,
3 Pursuant to the 1938 and 1939 contracts , the respondent maintained a seniority list
which was available at all times to representatives of Local 156 . See footnote 10, infra.
4 The negotiating committee of Local 156, hereinafter called the committee , is also re-
ferred to in the record as the grievance committee and the executive shop committee. This
committee included among its functions the presentation of employee grievances and com-
plaints to the management.
"The complaint does not allege that Stitt's lay-off in February or any of her lay-offs prior
thereto were discriminatory , and accordingly they were not litigated at the hearing.
9 The respondent 's answer refers to 'Stitt's dismissal on March 29 , 1940, as a lay-off
DeCourval , however, characterized it as a "permanent lay-off," and we accordingly find
that Stitt in fact was discharged on that date.
MARVEL-S'CHEBLER DIVISION, BORG'-WARNER. CORPORATION 871
the other employee named in the complaint. Stitt and.Nimcheski
were 2 of 5 women employees who allied themselves with the C.. I. 0.
after the factional split of January 1939.'_
DeCourval, the respondent's superintendent on whose orders Stitt
was discharged, testified that he decided to discharge her as a dis-
ciplinary measure, because of numerous complaints which began
coming to him from her fellow employees about December 1939.
The nature, as well as the origin, of these complaints is found in
DeCourval's own testimony :
Q. (By Mr. KELLOGG) Who did you receive the complaints
from?
A. From the committees in regard to different things. These
complaints, are very numerous, not only from the one operator
but from a lot of them.
Q. Did you receive any complaints on this employee from the
foreman of the department, Mr. Fowler?
A. Yes, he informed that he had trouble with her and he
came up to the office and talked to me about it and I told him
to give her some time off if he was having trouble with her, so
evidently he did give her some time off.
Q. When was that?
A. That was in February, I think it was, as near as I can
recollect, I don't know the exact date.
Q. February 1940?
A. 1940. Then after a period . . . the shop committeeman
came to me and thought she was punished long enough, and
asked me why I didn't bring her in, so I said that I would, pro-
vided I didn't get any more complaints about her. So we
brought her back to work at that time and she was only in the
plant a day before I started getting complaints about her run-
ning around talking. I instructed the foreman before that to
notify her about that and he claims that he did, but it didn't
seem to stop, so there was nothing else to do' but give her a
permanent lay-off.
Q. What was the nature of some of these complaints you re-
ceived from the committee and the foreman? '
A. Some of the complaints were that she wouldn't get her
tools sharpened by a man who was more or less designated
for that work, she would rather go about a half a block'away
to get her tools sharpened....
Q. What other complaints came to you?
7 The record indicates that prior to the discharges of Stitt and Nimcheski the other three
women who had affiliated with the C. I. 0. became members of Local 156.
8 See footnote 4, supra.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Other complaints I had was in regards to her wearing a
jacket and opening the window so the other girls would get
cold and then they would close the window and she would open
it up again and then the foreman had to designate a set-up man
in the department to regulate the window . . . It was just
petty things, and, I just decided that there was too much of
that... .
Q. (By Trial Examiner RucKra.) I thought you said the
union committee came to you in connection with her.
A. Those complaints I overlooked. If a person didn't belong
to a union, I could generally get some idea, as there-were com-
plaints against the person from time to time .. .
Q. What was the nature of the complaint that they sometimes
brought?
A. There was a number of complaints come in to me, I always
considered them minor ones and some of the complaints on this
particular girl was that she called them all kinds of names or
something like that. I would overlook that and tell them that
wasn't a complaint that was worth while.
* * * *
Q. Did the Union come'to you in connection with Stitt in any
way? Did the Union mention complaints or call your attention
to any complaint against Stitt?
* * * *
A. Only to the effect of them calling her name (sic) and tell-
ing them they were nothing but company union men and all
that stuff.
* * * * *
Q. Were there more complaints of that nature than there were
of opening and closing the window and sharpening tools?
A. I would say they ran about the same.
DeCourval further testified that he had a "general impression"
that Stitt was a "black sheep" and that he "had an idea" that she
did not belong to Local 156. He stated, however, that although the
committee and members of Local 156 brought him different com-
plaints against Stitt, they did not request that she be laid off. He
further stated that he never spoke to Stitt about these complaints, but
that he instructed Fowler to do so and assumed that Fowler did.
Stitt, however, testified that she had never been reprimanded by her
foreman or by any other supervisor. Fowler did not testify. We
find, as did the Trial Examiner, that no supervisory employee in-
formed Stitt that complaints had been made as to her conduct.
MARVEL 'SCHEBLER DIVISTON, BORG-WARNER CORPORATION 873
Gi onel/wions regarding Stitt
Upon the entire record we find, as did in effect the Trial Examiner,
that the respondent discharged Stitt because Local 156 opposed her
continued employment, and not because of misconduct on her part.
We have noted that toward the end of Stitt's employment she was
one of the few remaining employees who adhered to the C. I. 0.
rather than to Local 156. Though DeCourval testified that the com-
mittee did not request Stitt's discharge, the manner of its prosecu-
tion of complaints against her was such as seriously to impair her
security as an employee. The gravamen of the offense complained
of by the committee was that Stitt called members of Local 156
"names," and referred to that organization as a "company" union.
That the respondent was aware that these complaints were based
upon Stitt's non-membership in Local 126 and her continued adher-
ence to the C. I. 0. is apparent not only from the very nature of the
complaints themselves, but is further evidenced by DeCourval's
testimony that if an employee did not belong to a union he "could
generally get some idea," because there were "complaints against the
person from time to time"; and that he had an impression that Stitt
was a "black sheep." As for the complaints concerning Stitt's be-
havior as an employee, DeCourval's testimony indicates, and we find,
that they involved trivial deviations from good conduct such as do
not normally evoke the drastic penalty of discharge.
The entire record requires the conclusion that the respondent, in
discharging Stitt, surrendered to the committee its managerial re-
sponsibilities with regard to Stitt's employment and acquiesced in
and adopted the committee's factional animus against her. Such
discrimination against Stitt was clearly violative of the Act, and
however pressing the necessity of yielding to the importunities of local
126 might have appeared, such exigency afforded the respondent no
justification for failing in its affirmative duty to protect Stitt in her
employment.9
g There was no closed -shop contract between Local 156 and the respondent that would
justify Stitt's discharge because of her non-membership in that organization , and while, as
found above , such discharge was induced by Local 156, the respondent thereby acquired no
immunity from the prohibition imposed by the Act See Matter of Hudson Motor Car
Company and International Union, United Automobile Workers of America, A F. L,
34 N L. R B, No 100; N. L. R B v. Star Publishing Company, 97 F. (2d) 464, 465
(C. C A. 9 ), enf'g Matter of Star Publishing Company and Seattle Newspaper Guild,
4 N L R B. 498 See also McQuay -Norris Manufacturing Company v . N. L. R. B, 116 F
(2d) 748 (C C. A 7 ), ceit denied 313 U S. 565, enf'g Matter of McQuay-Norris Manufac-
turing Company and United Automobile Workers of America, Local No. 226; Wilson it Co,
Inc. v N. L. R B. (C. C. A. 8), decided November 10, 1941, enf'g as modified , respectively,
Matter of Wilson it Co ., Inc. and United Cannery, Agricultural , Packing it Allied Workers
of America, Local No 216, 26 N. L. R. B., No. 31 and Matter of Wilson it Co , Inc and
United Cannery, Agricultural , Packing it Allied Workers of America, Local 216, 26 N L R B.
297. Cf Matter of Motor Products Corporation and Claude B. Apple, Steve Oillock , Joseph G.
Green, Lynn McKeehan and Rosemary O'Mara , 34 N L R B, No 120
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that by discharging Harriett Stitt on March 29, 1940, and
thereafter refusing to reinstate her, because of her non-membership
in Local 156 and her membership and activity in the C. I. 0., the
respondent discriminated in regard to her hire and tenure of employ-
ment, and thereby, and by Gray's statement to McGill that the C. I. 0.
was a "bunch of damn racketeers," discouraged membership in the
C. I. 0., encouraged membership in Local 156, and interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Nimcheski
Gladys Nimcheski was continuously employed by the respondent,
principally as a machine operator on the assembly line, from Decem-
ber 28, 1928, to March 26, 1940, the date of her discharge. She was
seventieth in order of seniority on the respondent's seniority roster.
Nimcheski joined Local 156, then affiliated with the C. I. 0. in 1938,
and was a member of its negotiating committee and otherwise active
in its affairs. Her union membership was known to the respondent.
After the split in January 1939, Nimcheski retained her membership
in and paid dues to the C. I. 0. As has been found, she was one of
five of the respondent's women employees who adhered to the C. I. 0.
and the only one of the five, other than Stitt, who at the time of her
discharge continued to belong to the C. I. 0.10 On one occasion,
following the factional split in January 1939, Gray, according to
Nimcheski's uncontradicted testimony, approached Nimcheski while
at work and asked, "what kind of buttons they were on (her) hat."
Nimcheski told him "they were C. I. 0.," whereupon Gray said, "We
don't belong to the C. I. 0. any more, we belong to the A. F. L."
On September 16, 1939, Nimcheski became ill and remained -at
home. She returned to the plant on October 3 and talked with Doni-
phan, the respondent's employment manager. Nimcheski told Doni-
phan that she was ill and unable to work. Doniphan testified that
Nimcheski further stated that she would never be able to return to
work. Cook, Doniphan's assistant, testified that this was her "im-
pression" of what Nimcheski had said. Nimcheski denied having
made this statement. In the light of subsequent events, however, it
becomes unnecessary to resolve this contradiction in the testimony.
As the result of Nimcheski's visit, Doniphan marked "Quit" on her
employment card. On November 8, Nimcheski again called at the
employment office and asked Doniphan what her status was as an
employee. Doniphan advised her that he understood that she had
quit her employment, but on Nimcheski's insistence that there had
10 See footnote 7, supra.
MARVEL-'S'CHE-BLE'R DIVISION, BORG-WARNTER CORPORATION 875
been a misunderstanding and that she had not quit, referred the
matter to Superintendent DeCourval. Later, on DeCourval's in-
structions, Doniphan struck out "Quit" on Nimcheski's card and
substituted "Leave of absence because of ill health." DeCourval
wrote under this notation, "1 year leave, O. K." to which he signed
his name. On the same day, Doniphan wrote Nimcheski, informing
him that she had been granted an indefinite leave of absence, and
requested that she keep in touch with the office.
On or about October 3, when Doniphan marked "Quit" on Nim-
cheski's card, he notified the committee that Nimcheski had quit her
employment. This was in accordance with the respondent's practice
in carrying out the seniority provisions of its contract with Local
156. When Nimcheski's employment status was changed from "Quit"
to "Leave of absence," however, Doniphan neglected to give the
committee notice.
In February 1940, Nimcheski returned to the plant and informed
.Doniphan that she was ready to return to work. Doniphan gave
notice of this fact to the committee, at the same time advising the
committee of the prior change in Nimcheski's status from "Quit" to
"Leave of absence." The committee raised no question of Nim-
cheski's ehanged status until a few days later when Doniphan advised
the committee that Nimcheski had returned. The committee then
informed Doniphan that it opposed the rehiring of Nimcheski, giv-
ing as its reasons that Nimcheski had quit in the previous October,
and that as a former employee she had no seniority standing and
hence could not be rehired ahead of laid-off employees on the seniority
list?1 Doniphan referred the committee to DeCourval.
Concerning the position of the committee, and the subsequent deci-
sion by the respondent, DeCourval testified as follows :
Q.- And I wish you would tell us as near as possible the entire
conversation between you and the committee.
n The pertinent seniority provisions of the 1939 contract were as follows :
1. Employees shall be regarded as temporary employees during a probationary period for
the first sixty (60) days of their employment. There shall be no responsibility for the
reemployment of temporary employees if they are discharged or laid off during this period.
At the end of this sixty (60) days probationary period, men and women are to be divided
into separate non-interchangeable groups and placed on the respective seniority lists.
2. After sixty (60) days' continuous employment, employees shall have seniority rights
which shall date from their original date of hiring Seniority rights shall be forfeited
after an absence of eighteen (18) months, or if an employee quits of his own accord or is
discharged, or refuses to return to work when called, without giving explanation satis-
factory to the company, with the provision, however, that employees who have been laid
off for more than eighteen (18) months will be re-hired and returned to work, by mutual
approval of the company and the Union, before any new people are hired. It is understood
that these employees will be hired under the probationary clause contained in this agree-
ment, and after serving this probationary period, will be given their full seniority.
s x • x s t •
7. The company agrees to make available to the executive shop committee the seniority
of all employees on the pay roll and to notify the committe of all employees to be laid off
and also recalled to work.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, the complaint was that being that she had quit, that
she had no right in here because there were maybe to the extent
of 100 girls off at that time with more seniority than she had,
being that she had quit, she had less seniority than any of them,
and I informed them that I would find out what I could do about
it, I figured I was in the right by putting her back on and we had
a meeting on it and we decided that we had no business putting
her back on the pay roll over her own seniority because she had
already quit.
The meeting of the management at which it was decided to let Nim-
cheski go was attended by DeCourval, Assistant Superintendent An-
drex, and General Manager Gray. Nimcheski was discharged on
March 26, 1940,12 by her foreman, Stevenson, who told her that she
was laid off until further notice, and that she should take it up with
the committee. Instead, Nimcheski inquired of Andrex why she was
discharged. Andrex told her "I can't tell you anything, I am not
supposed to talk to you, at all. They would raise the dickens with me
if they saw me talking to you." 13 Nimcheski then approached Gray
who said, "I am sorry, Gladys, I feel sorry for you, you have been
here a long time, but what can I do, I am not even supposed to talk
to you." Upon Nimcheski's asking him whether the committee was
running the plant, Gray replied, "I guess so." 14 As we have previously
stated, Gray was not called as a witness . We credit, as did the Trial
Examiner, Nimcheski's uncontradicted testimony as to her conversation
with Gray as set forth above.
Conclusions regarding Nimcheski
The record convinces us that the committee, in protesting Nimcheski's
reemployment, was motivated at least equally by her refusal to join
13 Shortly after Nimcheski' s discharge , the respondent found it necessary to rehire former
employees to such an extent that the names of men employees on its seniority list were
exhausted , and new men employees were hired . Although some women employees were
hired, the seniority list as to them was not exhausted and no new women employees were
hired. By virtue of the 1939 contract ( see footnote 10), laid-off men employees ' ere "non-
interchangeable" with laid-off women employees, and hence , when the seniority list was
exhausted as to laid -off men employees, new men employees were hired rather than additional
laid-off women employees rehired
33 The above findings are predicated upon the uncontradicted testimony of Nimcheski
Neither Andrex nor Stevenson was called to testify
14 Gray proceeded to tell Nimcheski on the above occasion that she should "bargain
with" the committee, adding, "You are stubborn just like the other girl , that is why she
isn't working " Nimcheski testified that she understood Gray to be referring to Stitt,
because she believed Stitt to be the only other girl who was not "bargaining with" the com-
mittee At the same time, Nlmcheski stated that Stitt was working on th,it day As has
been found previously , Stitt was called back from a temporary lay-off on the same day,
March 26. We conclude as did the Trial Examiner , that Gray, at the time of his conversa-
tion with Nimcheski , was unaware that Stitt had returned to work on that day, and that
his reference to the "other girl" was, in fact , to Stitt.
MARVEL-SCHEBLEiR DIVISION, BOR3-WARNMEIR CORPORATION 877
Local 156, as by the belief that she had lost her employee status.15
While it further appears that the respondent was aware of such motiva-
tion, we do not agree with the conclusion of the Trial Examiner that
by discharging Nimcheski the respondent necessarily acquiesced in
or adopted that motivation?s
The issue as to whether or not the respondent had acted within its
rights in changing Nimcheski's employment status from "Quit" to
"Leave of Absence" was an arguable question involving the interpre-
tation of the seniority provisions in the contract with Local 156, and
the fact that the respondent did not notify the committee of the change
when it was made, lent further color to the committee's position. Un-
like its action in discharging Stitt, the respondent in discharging
Nimcheski did not surrender its managerial functions in a sphere
in which it had exclusive jurisdiction. The interest of Local 156,
as sole bargaining representative, in administering the seniority pro-
visions of the contract was equal to and coextensive with that of the
respondent.17 Under these circumstances, we cannot say that in reced-
ing from its position with respect to Nimcheski's reinstatement, the
respondent did more than to yield in good faith to the committee's
supportable argument as to application of seniority rights under the
contract.
We find that the respondent has not discriminated in regard to the
hire and tenure of employment of Gladys Nimcheski, thereby encour-
aging or discouraging membership in a labor organization. We find,
however, that by Gray's conduct in questioning Nimcheski as to the
C. I. 0. buttons which she wore and informing her that "We don't
belong to the C. I. 0. any more, we belong to the A. F. L." the respond-
ent interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
i' Nimcheski 's Preference for the C. I. 0. was well known to her fellow employees and
her refusal to join Local 156 resulted , according to her uncontradicted testimony, in her
being referred to as a "rat " and a "scab " by members of Local 156 , including members of
the committee, during the week prior to her discharge and at a time when the committee
was negotiating the question of her employee status with the respondent
"The respondent 's good faith in originally noting and reporting Nimcheski as having
quit, in subsequently changing its notation to "Leave of Absence " ; in failing to apprise
the committee of that change ; and in reinstating Nimcheski on her return from illness
is not challenged.
In this context the remarks of Stevenson , Andres, and Gray, made at the time of
Nimcheski ' s discharge , lend themselves as readily to the inference that these supervisory
employees sympathized with her in her plight which they attributed to the committee's
insistence on its interpretation of the contract, as to the contrary inference that the
respondent had discriminatorily abdicated its control of personnel.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices , we will order it to cease and desist therefrom and take
certain affirmative action which we find will effectuate the policies of
the Act.
We have found that the respondent discriminated against Harriett
Stitt in regard to the hire and tenure of her employment. We shall
therefore order that the respondent offer Stitt immediate and full
reinstatement to her former or substantially equivalent position, with-
out prejudice to her seniority and other rights and privileges. We
shall further order that the respondent make whole Stitt for any loss
of pay she may have suffered by reason of the respondent's discrimina-
tion against her by payment to her of a sum of money equal to the
amount which she normally would have earned as wages during the
period from March 29, 1940, the date of her discharge," to the date
of the offer of reinstatement, less her net earnings 19 during said period.
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. International Union, United Automobile Workers of America,
affiliated with the Congress of Industrial Organizations, and Local
78 See Triplex Screw Company v. N. L. R B ., 117 F ( 2d) 858 ( C. C A. 6 ), enf'g as mod
Matter of The Triplex Screw Company and Amalgamated Association of Iron, Steel and Tin
Workers o f North America, Local No. 1583, 25 N L R B 1126 ; Phelps Dodge Corpora-
tion v. N. L. R . B., 313 U. S. 177 , mod and remand . 113 F. ( 2d) 202 ( C. C. A. 2 ), enf'g as
mod. Matter of Phelps Dodge Corporation , a corporation and International Union of Mine,
Mill and Smelter Workers, Local No. 30, 19 N. L . R. B 547. The respondent contends in
its brief that because of the apparent delay in filing charges, Stitt in any event should not
be awarded back pay prior to July 2, 1941 , the date on which a charge was first filed with
respect to her discharge on March 29 , 1940. A charge had been filed in Stitt ' s behalf,
however, on March 12, 1940 , alleging that she had been discriminatorily discharged by the
respondent in February 1940. As stated herein above , Stitt was recalled to work on
March 26 and discharged 3 days later . Stitt might reasonably have considered her ultimate
dismissal as merely a continuation of what she believed , and had charged , to be the
respondent ' s prior discriminatory conduct towards her, and accordingly have deemed it
unnecessary to file an additional charge. Under these circumstances , the delay in filing
the second charge does not, in our opinion, reveal such lack of diligence on Stitt's part as
to warrant us in departing from our usual practice of awarding back pay for the entire
period between the date of the discriminatory discharge and the offer of reinstatement.
19 By "net earnings" is meant earnings less expenses such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking unemployment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2390, 8 N. L. R . B. 440. Monies received for
work performed upon Federal, State , county, and municipal or other work-relief projects
shall be considered as earnings . See Republic Steel Corporation v. National Labor Relations
Board, 311 U. S. 7.
MARVEL-S'CHEBLEiR DIVISION, BORG-WARNER CORPORATIO'N 879
156, International Union, United Automobile Workers of America,
affiliated with the American Federation of Labor, are labor organiza-
tions, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Harriett Stitt, thereby encouraging membership in Local 156,
International Union, United Automobile Workers of America, affili-
ated with the American Federation of Labor, and discouraging mem-
bership in International Union, United Automobile Workers of Amer-
ica, affiliated with the Congress of Industrial Organizations, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
3. By interfering. with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not discriminated in regard to the hire and
tenure of employment of Gladys Nimcheski within the meaning of
Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Marvel-Schebler Division, Borg-Warner Corporation, Flint,
Michigan, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Local 156,. International Union,
United Automobile Workers of America, affiliated with the American
Federation of Labor, and discouraging membership in International
Union, United Automobile Workers of America, affiliated with the
Congress of Industrial Organizations ; or any other labor organization
of its employees, by discharging, laying off, or refusing to reinstate
any of its employees, or in any other manner discriminating in regard
to their hire and tenure of employment or any term or condition of
employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid and pro-
tection, as guaranteed in Section 7 of the Act.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Harriett Stitt immediate and full reinstatement to her
former or substantially equivalent position , without prejudice to her
seniority or other rights and privileges;
(b) Make whole Harriett Stitt for any loss of pay she may have
suffered by reason of the discrimination against her by payment to
her of a sum of money equal to that which she normally would have
earned as wages from March 29, 1940, the date of her discharge, to the
date of the offer of reinstatement , less her net earnings during said
period ;
(c) Immediately post in conspicuous places throughout its plant
at Flint, Michigan, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating : ( 1) that it will not engage in the conduct from which it is
ordered to cease and desist in paragraphs 1 (a) and (b) above; (2)
that it will take the affirmative action set forth in paragraphs 2 (a)
and (b ) above; and (3) that its employees are free to become or remain
members of International Union, United Automobile Workers of
America, affiliated with the Congress of Industrial Organizations, and
that it will not discriminate against any employee because of member-
ship or activity in said organization;
(d) Notify the Regional Director for the Seventh Region in writing
within ten ( 10) days from the date of this Order what steps the re-
spondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint , insofar as it alleges
that the respondent , by discriminating in regard to the hire and tenure
of employment of Gladys Nimcheski , has engaged in unfair labor
practices within the meaning of Section 8 (3) of the Act, be, and it
hereby is, dismissed. .
Chairman Hillis, dissenting in part:
I cannot agree with the conclusion of the majority that the respond-
ent has not discriminated in regard to the hire and tenure of employ-
ment of Gladys Nimcheski.
The finding of the majority that the respondent in discharging
Nimcheski did not acquiesce in the discriminatory motives of the
committee is predicated upon the assumption that the right of the
respondent to change Nimcheski 's employment status from "Quit" to
"Leave of Absence" involved an interpretation of the seniority pro-
visions contained in its contract with Local 156 . In my - opinion,
however, there is nothing in those provisions to indicate that the re-
spondent thereby relinquished its normal right to determine the em-
ployment status of its employees. It is clear that it would have been
a proper exercise of its managerial authority had the respondent
granted Nimcheski a leave of absence in the first instance , and the
MARVEL-SCHEBLER DIVISION, BORG-WARNER CORPORATION 881
fact that it did so only after she had protested that her statements
had been misunderstood when she first notified the respondent of her
illness, does not in my opinion detract from the propriety of such
action. Nor did Local 156 impugn the good faith of the respondent
in changing its records and later reinstating Nimcheski pursuant
thereto. While it appears that the respondent was negligent in fail-
ing to notify the committee at the time it granted Nimcheski a leave
of absence, when it-firially did so shortly before her return to work,
the committee did not demur. Furthermore, it is evident from Nim-
cheski's conversation with Gray following her discharge that the re-
spondent acceded to the protest of the committee not because of any
doubt as to its rights under the contract, but rather because of the in-
sistence of the committee that Nimcheski be discharged. Gray's ad-
mission to Nimcheski that the committee was "running" the respond-
ent, and his reference to her "stubbornness" as being comparable to
that 'of Stitt who he then admitted was not working because of her
refusal to "bargain with" the committee, convinces me that the re-
spondent pursued the same course in discharging Nimcheski that it
did when discharging Stitt, i. e., acquiescence in and adoption of the
factional hostility of the committee of Local 156. Accordingly, I
would find that the respondent `discharged Nimcheski because of her
non-membership in Local 156 and her membership in the,C. I. 0.20
" See footnote 9, Supra.
438861-42-vol. 38-57