Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Sep 18, 1942

44 N.L.R.B. 105 (N.L.R.B. 1942)

In the Matter of BORG-WARNER CORPORATION (WARNER GEAR DIVISION)
and CLEO BADDERS, ALBERT BURNS, WALTER LIBY, AND DEWEY
ELLIS
r
Case No. C-2,003.-Decided September 18, 19.1.E
Jurisdiction : automotive parts manufacturing industry.
Unfair Labor Practices
•Drsorimination. discharge of employee purportedly for violation of absence rule
under circumstances which had the effect of encouraging membership in a
labor organization.
Remedial Orders : reinstatement and back'pay awarded; period between Inter-
mediate Report and Order not included in computation of back pay as to
several employees ; back pay of individuals who disclaimed interest in reinstate-
ment prior to Intermediate Report to be computed from date of discrimination
to date they testified that they no longer desired reinstatement.
Mr. Arthur R. Donovan, for the Board.
111r.' Myron H. Gray and Mr. Reed D. Voran, of Bracken, Gray and
DeFur, of Muncie, Ind., for the respondent.
Mr. Bernard W. Freund, of Muncie, Ind., for Cleo Badders, Albert
Burns, Walter Liby, and Dewey Ellis.
Mr. David Karasick, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Cleo Badders, Al-
bert Burns, Walter Liby, and Dewey Ellis, herein called the com-
plainants, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Eleventh Region (Indianapolis, Indi-
ana), issued its complaint, dated April 7, 1942, against Borg-Warner
Corporation (Warner Gear Division), Muncie, Indiana, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1) and (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 notice of hearing were duly served served
upon the respondent and upon the complainants.
With respect to the unfair labor practices, the complaint alleged, in
substance: (1) that on or about August 19, 1940, the respondent dis-i
44 N. L. R. B., No. 23.
105
106 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
charged and at all times since that date has refused to reinstate,
Cleo Badders, Albert Burns, Walter Liby, and Dewey Ellis because they
failed and refused to become or remain members in good standing
of International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, Local No. 287, affiliated with the
Congress of Industrial Organizations, herein called the Union, in
order to encourage membership in the Union, and thereby discrim-
inated against the complainants in regard to their hire and tenure of
'employment; and (2) that by discharging and refusing to reinstate
Badders, Burns, Liby, and Ellis, the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
The respondent filed an answer dated April 14, and an amended an-
swer dated April 27, 1942. As amended, the respondent's answer ad-
mitted that the respondent had discharged and refused to reinstate the
complainants, but denied that it had thereby engaged in any unfair
labor practices. As au affirmative defense, the respondent alleged in
its answer that it had terminated the employment of the complainants
because they had absented themselves from work for more than 5 con-
secutive working days without notifying the respondent and furnish-
ing a reasonable excuse for such absence, in violation of a rule of the
respondent, and that in such circumstances the respondent could not
continue their employment without violating a contract between it and
the Union.
Pursuant to notice, a hearing was held at Muncie; Indiana, from'
April 30 to May 7, 1942, before Horace A. Ruckel, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the re-
spondent, and the complainants were represented by counsel and par-
ticipated in the hearing.' Full opportunity was afforded all parties
to be heard, to,examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues. During the course of the hearing,
the Trial Examiner granted a motion by the attorney for the Board
to amend the complaint in certain minor respects and also granted a
similar motion by counsel for the respondent with respect to the
amended answer. At the conclusion of time hearing, the Trial Examiner
granted motions to conform the complaint and the answer to the proof
in respect to formal matters. Counsel for the respondent also moved to
dismiss the complaint. Ruling on this motion was reserved.. During
the course of the hearing, the Trial Examiner made rulings on various
other motions and on objections to the admission-of evidence. The
I The Union was not made a party to the proceeding and did not participate in the
hearing Paul Cooley, president of the Union, called as a witness fo, the Boaid, testified
that the Union did not wish to intervene in the proceeding
BORG-WARNER CORPORATION 107
Board has reviewed all the rulings ,of.the,-Trial Examiner made during
the course of the hearing and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed. • At the close of the hearing,
counsel for the respondent and for the complainants participated in
oral argument before the Trial Examiner. After the hearing, the
respondent filed a brief for the Trial Examiner.
On May 22, 1942, the Trial Examiner issued his Intermediate Re-
port, copies of,which Were duly served upon all parties; in which he
found that the respondent had not engaged in the alleged unfair labor
practices and recommended that the complaint be dismissed.
Thereafter, the complainants filed exceptions to the Intermediate
Report and a brief in support thereof, and the respondent filed a brief
in reply to the brief filed by thecomplainants. - None of the parties re-
quested oral argument before the Board. The Board has considered
the exceptions to the Intermediate Report and the briefs of the parties,
and finds that the exceptions have merit insofar as they are consistent
with the findings, conclusions, and order set forth below.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF TIIE RESPONDENT
The respondent, Borg-Warner Corporation, is an Illinois corpora-
tion having its principal office and place of business at Chicago, Illinois.
The respondent owns and, through its Warner Gear Division, operates
three plants at Muncie, Indiana, known as Plants 1, 2, and 3, where it
manufactures transmissions and other automotive parts. The re-
spondent annually purchases for use at its Muncie, Indiana, plants
raw materials valued in excess of $100,000, of which more than 40
percent is shipped from points outside the State of Indiana. The re-,
spondent's annual sales exceed $150,000, of which more than 75 percent
represents shipments to points outside the State of Indiana. The re-
spondent concedes that it is engaged in commerce, within the meaning
of the Act.
II. TFIE ORGANIZATION INVOLVED
International Union, United Automobile, `Aircraft and Agricul-
tural Implement Workers of America, Local No. 287, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting
to membership employees of the respondent.2 .
2 The name of the Union was formerly International Union , United Automobile Workers
of America , Local 287 This name 'Nas used by the Union in all transactions prior'to
September 1, 1941 t
108 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The discharges
Following a consent election conducted by the Board ini June 1937
among the employees of the respondent at its Muncie, Indiana, plants,
the respondent entered into an exclusive collective bargaining agree-
ment with the Union on July 3, 1937. On August 28, 1939, the parties
entered into another contract which, together with subsequent amend-
ments, was in effect at the time of the hearing. Neither ,the 1939 con-
tract nor those which preceded it contained any provision requiring
membership in the Union as a condition of employment.
Prior to April 25, 1940, Badders, Burns, and Ellis were employed in
Plant 3, and Liby in Plant 1, as inspectors. Each had joined the Union
prior to 1939, but by 1990 they had ceased paying dues. During the
early part of 1940, they were approached by officers of the Union
several times and asked to pay their dues. They refused • to do so, on
the ground that the Union did not have a closed-shop contract and that
it was not,,therefore, necessary for them to belong in order to keep
their jobs. On April 23, the Union instituted a dues check at the
respondent's plants. Representatives of the Union, stationed at the
entrances to the plants, stopped employees when they reported for work
and asked to see their membership cards. Badders, Burns, and Ellis
were unable to show paid-up membership cards, and as a result they
were not permitted to enter the plant that morning.' That afternoon,
the dues check was suspended and the three men entered the plant
and started working. Upon` observing them, other employees in the
department quit work and left the plant. The following day, April
24, Badders, Burns, and Ellis reported for work about 6 o'clock
in the morning, an hour earlier than their usual starting time. When
the 8 o'clock shift' was due to start work, many of its members gathered
around the entrance to the plant and refused to go to work because
of the presence of the three complainants in the plant. The following
day, James Fox, the respondent's general superintendent, at the direc-
tion of Arthur Emmert, works manager and vice president in charge of
operations, transferred the three men to Plant 1, telling them that he
"thought it would be better" there. At Plant 1 they were employed
at work similar to that which they had done at Plant 3. A few days
after his transfer to Plant 1, Badders was transferred to Plant 2. The
four employees received the same rates of pay in their new jobs as they
had in their former positions. Burns, Ellis, and Liby worked at Plant
8 Liby was on his vacation at this time.
' The respondent at this time maintained two morning shifts, one which began at 7 and
the other at 8 o ' clock.
BORG-WARNER CORPORATION 109
1, and Badders at Plant 2, until August 8, without interference, by
members of the Union other than periodic requests to pay their-dues.
On Thursday, August 8, the Union conducted another dues check."
The 4 complainants arrived for work at 7 o'clock that morning, and
found between 50 and 75 union members blocking the sidewalk in front
of thle entrances to Plants 1 and 2. When they were unable to show
paid-up membership cards, they were told that they could not go to
work. Liby was struck in the face by one of the crowd, and the cloth-
ing of another,,a non-union employee whose name is not included in
the complaint was torn during the course of their respective efforts to
enter the plants.
Upon failing to gain entrance to the plants; the complainants re-
ported the situation to the city police. A squad of policemen' arrived
at the plants. Upon observing the police, some of the employees threat-
ened to throw the complainants bodily out of the plants if they were
admitted. The police withdrew. Later the same day, the complain-,
ants went to the Board's Regional Office in Indianapolis where they
were told that the matter was one for settlement between the Union
and its members. On the following day, Friday, August 9, the com-,
plainants applied for reinstatement in the Union. On Saturday, Au-
gust 10, their applications were refused. Ellis testified, without con-
tradiction, that the complainants then returned to the city police who
informed the complainants that they would not be given further pro-
tection but would be placed in custody and jailed if they created a dis-
turbance in their efforts to enter the plants. Later that afternoon
Ellis, Badders, and Burns conferred with General Superintendent Fox
and Joseph Evans, in charge of the plant protection force, informed
them of the events related above, and asked them what they should
do to continue working for the respondent. Fox told them. that "their
jobs were inside of the plant, and any time they were inside the plant
they would be protected," that he could not make any suggestion
as to what they should do because' "the Wagner Act would- not permit
that," and referred them to Myron H. Gray, the respondent's attor-
ney. Gray advised Ellis that the respondent would grant the employ-
ees protection inside the plants but that it "had no control over union
activities on the public streets and highways outside of the company's
plant."
During August 1940, the respondent's plants worked only from-
Monday through Thursday of each week. Thus, Monday, August 12;
was' the first working day after Thursday, August 8, the day upon
" Badders testified that the dues check at Plant 2 began on August 7, while Myers, a
member of the union negotiating committee , testified that the dues check at' that plant
did not begin until August 8. Myers' testimony on this point is corroborated by other
testimony in the record , and we accordingly find, as noted hereafter , that the dues check
in question began on August 8.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the dues check was first conducted. . The evidence with respect
to the situation in front of Plants 1 and 2 on August 12 is conflicting.
The complainants each testified that they passed the plants on Au-
gust 12, and on various occasions and at different times during the
remainder of that week, and on each occasion found that the dues
check was still being conducted. However, Joseph Evans, chief of the
respondent's plant police, Frank Massey, the respondent's manager of
public relations, and Paul Cooley, financial secretary of the Union,
testified that no dues check was conducted after 8 or 9 o'clock on the
morning of August 8, while Leo Myers, a member of the union nego-
tiating committee, testified that the dues check was suspended after
the morning shift had gone to work at 8 o'clock on August 8 and
was resumed for the 4 o'clock shift that afternoon, and that on August
12 several union men continued the dues check in front of Plant 2.
We agree with the conclusion of the Trial Examiner that the testi-
mony of Myers more closely approximates the facts than that of the
other witnesses. We find, as did the Trial Examiner, that the, Union
conducted a dues check at the Muncie, Indiana, plants of the respondent
on August 8 and 12, and not thereafter.,
On the week-end of August 10, the complainants employed counsel'
who on August 13, conferred with Arthur Emmert, the respondent's
works manager and vice president in charge of operations, in an un-
successful attempt to assist the complainants in returning to work. On
Monday, August 19, the complainants' time cards were removed, from
their rack by the paymaster and sent to the employment office. On
the same day a discharge slip was made out for each of the com-
plainants with a notation of discharge because of absence from work
for 5 days. The slips were initialed by General Superintendent Fox,
Carl McConnell, chief inspector and the immediate superior of the
complainants, and a committeeman of the Union. McConnell testified
that this procedure was followed as a matter of routine, and that
neither at the time ,the complainants' cards were pulled nor at the time
he initialed the discharge slip did he know why the complainants were
away from work. McConnell ,and other witnesses called by the re-
spondent testified that there was a long-standing rule that an employee
who was absent from work for 5 days without a reasonable excuse was
subject to discharge."
9 For the reasons noted below , our decision in this case s ould be the same even, if the
dues check had not been conducted after August 8
'r The attorney who represented the complainants at the hearing was not the same counsel
whom they originally retained
8 As noted above , the respondent ' s plants were operated only from Monday through
Thuisday of each week during the period in question . Since the respondent 's rule relating
to absence from work for 5 days applied only to working days , the governing dates in this
case are. Thuisday, August 8; Monday through Thursday, August 12 through 15; and
Monday, August 19
BORG-WARNER CORPORATION 111
On Tuesday, August 20, the complainants met with Arthur Emmert,.
the respondent's vice president and works manager, and asked him if
there was any way they could be reinstated. Emmert refused to re-
instate them, telling them that their reinstatement would violate the
respondent's contract with the Union and that there were "a number
of men who could claim back pay if we violated the rule." Emmert
testified that he refused the complainants' request for reinstatement
because he did not believe that the reason for their absence from work
was reasonable, and that they could have entered the plants if they
had tried.
B. Conchcsions concerning the (hscharye-s'
It is the contention of the respondent that the complainants were
discharged pursuant to a company rule' and the provisions of the
contract between the respondent and the Union, to the effect that any
employee who is absent from work for 5 days -without notifying the
company and furnishing a reasonable excuse t^hall be discharged. - The
Trial Examiner upheld this contention of the respondent'wind fouind.
that the complainants were not discharged in violation 'of Section 8 (3)
of the Act. We are unable to agree with the conclusioli'of tl eTrial_
Examiner for the reasons noted below.
The record shows that since 1928 the respondent has had a rule
governing absences from work for a period exceeding 1 vi orkweek.
Sometime prior to August 1940, a 5-day period was established. When
the 1939 contract between the respondent and the Union was executed,
the substance of this rule was reflected in the contract as follows:
Seniority will terminate when an employee quits his employ-
ment, is discharged for just reasons, is absent from work for five
(5) days without notifying the company, does not return to work
within five (5) days after being called unless reasonable excuse
is given, or when eighteen (18) months elapse since he was last
employed by the company. Where new employees are hired, those
who have previously worked for the company, and lost their sen-
iority will be given preference in employment if able to do the
work in their occupation. No new employees will be hired until
the seniority lists have been exhausted .9
The respondent contends that the contract required the presentation
of a reasonable excuse not only when an employee failed to report for
9 Subsequent amendments did not affect either this provision of ,the contract or a fur-
ther provision to the effect that a failure on the part of the respondent propeily to apply
seniority made it liable for back wages to the employees thereby affected Count Rollins„
personnel director of the respondent, testified that on August 6 there here ^24 men on
the seniority list, not then employed, who were entitled to employment in` the order of
their seniority.
112 DECISIONS OF- NATIONAL' LABOR RELATIONS BOARD
work within 5 days after being recalled following a lay-off, but also
when he was absent from work for the same period of time. The Trial
Examiner found, and we likewise find, that the words "reasonable
excuse" as they appear in the provision of the contract quoted above
refer only to a failure to report for work following a lay-off, and that
in -a case involving voluntary absence from work the contract re-
quired notification to the respondent only as to the fact-of absence.
In this connection, Personnel Director Rollins testified that in case of a
voluntary absence from tivork either'"notice alone within the 5-day
period or a reasonable excuse thereafter would be sufficient. However,
the Trial Examiner was of the opinion that the respondent's rule was
different than, and operated independently of, the contractual pro-
-vision in question. He found that the rule of the respondent required
that a, reasonable excuse be presented where an employee was absent
for 5 days. We cannot agree with this finding. Our examination of.
the record convinces us, and we find, that the respondent's rule was in.
substance incorporated in the contract, that the provisions and require-
ments of the rule and the contractual provision were the same, and
that notice of absence within a 5-day period in itself was sufficient: -
It is undisputed that' the complainants on August 10 notified General
Superintendent Fox and that their attorney on August 13 notified
Vice-President Emmert of the reason for the complainants' absence
from work, thereby fulfilling the requirements of the respondent's
rule as embodied in its contract with the Union. Accordingly, the
discharge of the complainants was not required on the ground asserted
by the respondent.
Our conclusion would necessarily remain the same, however, even if
we were to accept the respondent's contention that the 5-day con-
tractual provision relating to absence from work required both the
presentation of notice and a reasonable excuse.10 As noted above,
notice of the fact of absence was given to General Superintendent Fox
on August 10 and to Vice-President Emmert on August 13. The re-
spondent asserts, however, that the complainants had no reasonable
excuse for not entering the plants within the 5-day period. The record
contradicts this assertion. The evidence shows that the complainants
did have an excuse which the respondent either refused to recognize or
failed to investigate. There is abundant evidence that the complain-
ants did not enter the- plants on August 8 because they were physically
prevented from doing so by the large numbers of persons who conducted
the dues check. That they did not attempt to do so either on that day
during the time the dues check was temporarily suspended or there-
- 11 The same result would obtain whether notice plus reasonable excuse were regarded
as a requirement of an independent rule of the respondent, of the rule and the provision
of the contract, or of the contractual provision alone.
BORG-WARNER CORPORATION 113'
after is readily understandable in view of the fact that at least one
instance of violence occurred on the morning of August 8 with respect
to' the assault upon Liby; 11 by the fact that oli the same morning the
union men in-the plant challenged the city police with the statement
that the men then in the plant would eject the complainants if the
police brought them into the plant; and by the further fact that the
complainants, on August 10, were refused further protection from the
city police and warned that they would be taken into custody and jailed
if they created a disturbance in their attempts to gain entrance.
With respect to the incidents of violence or threatened violence di-
rected against the complainants, the respondent apparently takes the
position, first, that it had no knowledge thereof ; and second, that, even
if'it did have knowledge it would not thereby be responsible since what
actual violence occurred was not committed, on the respondent's prop-
erty.' Thus, with respect to the first ground, Vice-President Emmert
testified that, "I checked it with the committee to see if there was any,
violence used, and I was assured that there-was no violence." The
committee to which Emmert referred was apparently the committee,
of the Union., The record shows, however, that Emmert knew or was
chargeable with knowledge of the fact that violence had occurred, since
he testified that he had investigated the matter through Public Rela-
tions Manager Massey, who in turn had received a report from one of
the plant policemen of the fact that Liby had been assaulted. With
respect to the second ground, although no instances of actual violence
occurred on respondent's property,," the threatened evictions of the
complainants were made by employees from within the plants. More-
over, the question of whether there was a duty to protect employees
from violence occurring off the premises has no bearing on the ques-
tion of the reasonableness of the excuse offered by the complainants for
their absence. Nor do we regard the existence of actual violence, wher-
ever it may have occurred, as material in this case. Irrespective of
such evidence, the record clearly shows that the complainants were
dissuaded by force or threats from entering the plants by the persons
who conducted the dues check. Even had there been no violence the
complainants were under no obligation to encourage its commission by
attempting to force their way into the plants. That such a result
would have followed may reasonably be inferred both from the char-
acter and purpose of the dues check and the manner in which it was
conducted. ,
From the foregoing facts and upon the basis of the entire record,
we find that the complainants did have a reasonable'excuse for their ab-
"As noted above , the clothing of another employee , not a complainant in this case, was
torn as a result of his efforts to enter the plants on August 8.
"At the time Liby \N as struck , he was standing on a raihoad right -of-way which imme-
diately adjoined one of the respondent 's plants.
487498-42-vol. 44--8
114 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sence from work„which they presented to the respondent and of which
the respondent had knowledge. The testimony' of the respondent's
officials, called as its witnesses, confirms this conclusion. Thus, General
Superintendent Fox testified that it was his belief that Ellis could not
get to work on August 8 because of the dues check, and Public Relations
Manager Massey testified that he believed that the complainants had a
reasonable excuse for not reporting to work on the morning of August
8. Although Fox thereafter testified that he did not regard the ex-
cuse of Ellis on August 8 to be reasonable and would have counted
that day as part of the 5-day period, Vice-President Emmert testified
that the complainants would have had a reasonable excuse if they avere
physically prevented from reporting for work by reason of a dues check
and that if an employee had had • a reasonable excuse for absence
from work on August 8, the 5-clay period would not begin to run until
August 12, the next working day. We accept Emmert's testimony
on this point on the. ground that it is a more reasonable interpretation
of the respondent's rule and on the further ground that Emmert
was regarded as the final authority in interpreting the rule.'3 As noted
above, the dues check was conducted on August 8 and 12. It is clear
that, at least as long as the clues check continued, the complainants could
not gain access to the plants.14 Accordingly, the 5-day period would
not begin to run until August 13, and would not have expired until the
beginning of the working day on August 21. 15 The complainants, how-
ever, were discharged on August 19, before the 5-day rule would have
become effective according to the interpretation which the respondent
itself placed upon the rule.
In other respects, the record shows that the respondent attempted to
seek refuge behind a questionable interpretation of its rules to avoid
involvement in a controversy which involved the complainants and
the Union. It appears that the complainants were not "absent" within
the meaning of the respondent's rule as set forth in the contract.
The element of volition commonly'associated with the word "absence"
and clearly contemplated in its usage as it appears in the contract
was wholly lacking under the circumstances here disclosed.
Moreover, the respondent could have retained the complainants in its
employment by following either of two procedures which its working
11 Fox testified that Emmert "was the highest" official to whom the complainants could
have presented an excuse, while Enuneit himself testified that he "would assume" that
it was within his power to overrule the decision of any official or foreman of the respond-
ent with respect to the reasonableness of an excuse offered for an employee' s absence from
work
14 The violence and the threatened election of the compla-nants which occurred on Au-
gust 8, as related above, were sufficient in tbem,elv,es to doter the complainants from
attempting to enter the plants during the worlaug peuols when the dues check was not
being conducted on'August 8 and 12, as well as thereafter
11 See footnote 8, supra
BORG-WARNER CORPORATION 115
rules and the contract would have permitted, even if it would have.
been otherwise justified in applying the 5-day rule in the belief that
their absence was unreasonable. Its failure to do so, leads to the con-
clusion that its action was motivated by a recognition of the superior
force of the'Union as compared to that of the complainants and an
understandable, though unjustified,'E desire to free itself of an em-
barrassing and awkward situation.
According to the first of these procedures, either General Super-
intendent Fox, when he conferred with the complainants on August
10, or Vice-President Emmert, when he spoke to them on August 20,
could have granted them a 15-day leave of absence. Emmert ;testi-
fied that he would have granted such a leave of absence to the com-
plainants, even if he did not believe that they had a reasonable ex-
cuse, but explained his failure to do so on the highly technical ground
that the suggestion "would have to come up through the foreman" of
each of the complainants. Yet Fox, who occupied a position of lesser
authority than Emmert, placed no such limitation upon his powers.
Fox testified that if he had wished to grant a leave of absence, he would
have first consulted the-foremen of the employees involved. He ex-
plained his failure to do so on the ground that, "I didn't figure it was
my trouble, it was their trouble, between them and the Union." Fox
further testified that he did not suggest to the complainants that they
could request a leave of absence because "they knew about it." It is
clear, and we find, that both General Superintendent-Fox and • Vice-
President Emmert had the authority either themselves to grant a leave
of absence to the complainants or to suggest to the responsible foremen
that such a course be followed.
The second procedure which the respondent could have followed
if it had not wished to discharge the complainants would have been
to call the Union's attention to the fact that its dues check constituted
a breach of the existing contract. Article 9 of the contract of August
28, 1939, which was operative during the period in question, provided
as follows :
The union will not cause or permit its members -to -cause, nor
will any member of the union take part in any strike-either sit-
down, slow-up, stay-in, or any other kind of strike or stoppage
of work or other interference with any of the company's opera-
tions, until every reasonable effort has been made for the settle-
ment of complaints and grievances under the procedure provided
for by this agreement and until the term [sic] of this agreement
regarding the adjustment of complaints and grievances have been
complied with in full. [Italics supplied.]
Y. L. R. B. v. Star Publish-mg Company, 97 F. (2d) 465 (C. C. A. 9).
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At no time during the occurrences here in question did the respondent
and the Union discuss the controversy in an attempt to arrive at an
amicable settlement.
- From the foregoing facts, it is clear that the respondent need not,
have discharged the complainants if it had not wished to do S0.1 7 We
are 'convinced and find that the respondent discharged the complain--
ants because of their failure to become or remain members of the
Union, and that the respondent thereby unlawfully encouraged mem-
bership in the Union. As we have found, the complainants were not
breaching any rule of the respondent in remaining iaway from their
jobs, but were kept from work, as the respondent Well knew, by the
action,of the Union in seeking to induce the complainants to pay
up their dues. The complainants were under no obligation, in order
to continue, their employment, to become or remain members of the
Union, since there was no provision in the contract with the Union
requiring membership in the Union as a condition of employment.",
In discharging the complainants, the respondent in effect penalized
them for their failure to remain in good standing, and thereby sought
to purchase peace with the Union by indirectly enforcing, without
warrant in the contract or notice to the employees, a maintenance of
membership requirement. It is clear that by such action, the re-
spondent unlawfully encouraged membership in the Union. Accord-
ingly, we find that the respondent by discharging Cleo Badders,
Albert Burns, Walter Liby, and Dewey Ellis on August 19, 1940,
and thereafter refusing to reinstate them, because they failed and
refused to become or remain members of the Union, discriminated
in regard to their hire and tenure of employment, thereby encouraging
membership in the Union and interfering with, restraining, and
coercing its employees in the exercise, of the rights guaranteed in
Section 7 of the Act.
17 The discharges in this case were not requited in order to replace the complainants
with other peisons for the purpose of maintaining production schedules, for vice-President
Emmert testified that the discharges occurred during a period of low production
Is The respondent has consistently refused to grant the Union's request foi it closed
shop or a maintenance of membership clause, and neither the contiaLt originally nego-
tiated in 1937 nor any succeeding contract or amendments contained such provisions
Ed Hall, International Representative of the Union, testified that the respondent and the
Union had entered into a secret side agreement which provided that the respondent world
"take care of" any employee who failed to become or remain a member of the Union This
testimony was denied by those of the respondent's witnesses who had participated, in the
negotiations preceding the execution of the contract in question We find, as did the Trial
Examiner, that while I-Tall may have been under such an impression, the evidence is
insufficient to support a finding that the parties arrived at such an understanding
After the discharges in this case had occurred, the contract was changed in a niannet
which would appear to cover a situation such as that presented in this case On September
9, 1941, Article I of the contract was amended by addition of the follow ing clause :
Any employee whose conduct or actions on company time or property is such as
to interfere with the harmonious relationship between the Company and the Union,_
shall be subject to,discipline by the Company
This clause of the contract was still in effect at the time of the hearing
BORG-WARNER CORPORATION 117
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed 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 commerce
and the free flow of commerce.
V. THE REMEDY
Since we have found that the respondent has engaged in unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action which we find necessary to
effectuate the policies of the Act.
We have found that the respondent on August 19, 1940, and there-
after discriminated in regard to the hire and tenure of employment
of Cleo Badders, Albert Burns, Walter Liby, and Dewey Ellis by
-discharging and refusing to reinstate them because they failed and
refused to become or remain members in good standing of the Union.
We shall order the respondent to offer Albert Burns and Walter Liby
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their° seniority and other
rights and privileges.19 ' Inasmuch as Cleo Badders and Dewey Ellis
-disclaimed any desire to be reinstated, we will not order that they be
offered reinstatement. We shall further order that the respondent
make whole Cleo Badders, Albert Burns, Walter Liby, and Dewey
Ellis for any loss of pay they may have suffered by reason of the
respondent's discrimination against them. In accordance with our
usual practice, the period from May 22, 1942, the date of the Inter-
mediate Report, to the date of the Order herein will be excluded
in computing the amount of whatever back pay Burns and Liby are
entitled to receive, since the Trial Examiner did not recommend their
reinstatement. 20 Such a deduction is not applicable to Badders or
Ellis, however, since each of them disclaimed any interest he may
have had in reinstatement at a date prior to the time the Intermediate
10 In its brief, the respondent contends that the complainants are not entitled to rein-
statement or back pay, regardless of the facts surioundmg their discharge, because they
failed to comply with the provisions of the'contract after they were discharged by (1) no-
tifying the respondent in writing within 5 days that their seniority rights had been violated,
and (2) protesting their discharges through the medium of the grievance procedure pro-
vided for in the contract We find these contentions to be without merit The governing
issue in this case is whether or not the complainants were discharged in violation of the
Act. Once that issue has been decided, the question of reinstatement and back pay is
determined, not by the provisions of the contract, but by the Board in the exercise of its
discretion in effectuating the purposes and policies of the Act
20 Matter of E. R. HaffelTeyer Company, Inc and United Wall Paper Crafts of North
America, Local No. 6, 1 N L R B 760
1
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report was issued. Accordingly, we shall order the respondent to make
whole Cleo Badders, Albert Burns, Walter Liby, and Dewey Ellis
in the following manner : (1) by payment to Albert Burns and Walter
Liby of a sum of money equal to that which each would normally
have earned as wages from August 19, 1940, to May 22, 1942, and
from the date of the Order herein to the date of the.respondent's offer
of reinstatement, less his net earnings 21 during said period; (2) by
payment to Cleo Badders of a sum of money equal to that which he
would normally have earned as wages from August 19, 1940, to April'
30, 1942, the date upon which he testified at the hearing that as of
that time he no longer desired reinstatement; and (3) by payment to
Dewey Ellis of a sum of money equal to that which he would normally
have earned as wages from August-19, 1940, to November 7, 1940, the
date upon which he secured other employment and no longer desired
reinstatement by the respondent.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Interniitional Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, Local No. 287, affiliated with
the Congress of Industrial Organizations, is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Cleo Badders, Albert Burns, Walter Liby, and Dewey Ellis,
thereby encouraging membership in the above-mentioned labor or-
ganization,, 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
respondent 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.
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
21 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 employment elsewhere See Matter
of Crossett Lumber Cornpanq and United Brothe,hood of Carpeute,s and Joiners of Amer-
ara, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440 Monies received
for work performed upon Federal, State, county, municipal, or other work-relief projects
shall be considered as earnings See Republic Steel Corporation v N L. R B , 311 U S 7.
BORG-WARNER CORPORATION 119
Act, the National Labor Relations Boltird hereby„orders that the -re-
spondent, Borg-Warner Corporation (Warner Gear Division), Muncie,
Indiana, its officers, agents, successors, and assigns shall :
1. Cease and desist. from :
(a) Encouraging membership in International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
Local No. 287, affiliated with the Congress of Industrial Organiza-
tions, or any other labor organization of its employees, by discriminat-
ing in regard to the hire or tenure of employment or any terms or
conditions of employment of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own.choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer-to Albert Burns and Walter Liby immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges;
(b) Make whole said Albert Burns and Walter Liby for any loss of
pay they may have suffered by reason of the respondent's discrimina-
tion against them by payment to each of them, respectively, of a sum
of money equal to that which he normally would have earned as
wages from August 19, 1940, to the date of the Intermediate Report
and from the date of this Order to the date of the offer of reinstate-
ment, less his net earnings during said period;
(c) Make whole Cleo Badders for-any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to that which he normally
would have earned as wages from August 19, 1940, to April 30, 1942,
less his net earnings during said period;
(d) Make whole Dewey Ellis for any loss of pay he may have
suffered by reason of the respondent's discrimination against him,
by payment to him of a sum of money equal to that which he normally
would have earned as wages from April 19, 1940, to November 7, 1940,
less his net earnings during said period;
'(e) Post immediately in conspicuous places throughout its plants
in Muncie, Indiana, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a) and (b) of this
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order; and that it will take the affirmative action set forth in pars-
graphs 2 (a), (b), (c), and (d) of this Order;
(f) Notify the Regional Director for the Eleventh Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
CHAR MAN MILLIS took no part in the consideration of the above
Decision and Order.