Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Apr 29, 1944

56 N.L.R.B. 105 (N.L.R.B. 1944)

In the Matter Of MARVEL-SCIIEBLER DIVISION BORG-WARNER CORPO-
RATION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO)
Case No. 7-R-1645.-Decided April 09,1944
Mr. Stanley H. Fulton, of Detroit, Mich., and Mr. E. T. Andri',
of Flint, Mich., for the Company.
Maurice Sugar and Jack N. Tucker, by Mr. Jack N. Tucker, of
Detroit, Mich., for the CIO.
Joseph A. Padway and I. B.' Padway, by Mr. I. B. Padway, of
Washington, D. C., and Mr. Howard Thompson, of Detroit, Mich.,
for the AFL.
Mr. Robert E. Tilhnan, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon petition duly filed by International Union, United Automo-
bile, Aircraft and Agricultural Implement Workers of America
(UAW-CIO), herein called the CIO, alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Marvel-Schebler Division, Borg-Warner Corporation, Flint, Mich-
igan, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Robert
J. Wiener, Trial'Examiner. Said hearing was, held at Flint, Michi-
gan, on February 2, 1944. The Company, the CIO, and International
Union, United Automobile Workers of America, A. F. L., herein
called the AFL, appeared, participated, and were afforded full oppor-
tunity to'be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Trial Examiner's rul-
ings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded opportunity to file briefs
with the Board.
56 N. L. R. B., No. 20.
105
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Borg-Warner Corporation , an Illinois corporation , operates its
Marvel-Schebler Division in ,Flint, Michigan, where it is engaged at
a single plant in the production, assembly, sale, and distribution. of
gasoline carburetors and other war products. The principal raw mate-
rials used by the Company in the' manufacture of its products consist
of semifabricated parts of cast iron and aluminum , and screw ma-
chine parts. During the first,9 months of 1943 the value of the raw ma-
terials used at the Flint plant was in excess of $100,000, of which ap-
proximately 25 percent was shipped to the plant from points outside
the State of Michigan. During the year 1943 the value of the plant's
finished products was also in excess of $100,000, of which approxi-
mately 80 percent was shipped from the plant to points outside the
State of Michigan.
II. THE ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America is a labor organization ailili-.
ated with the Congress, of Industrial Organizations. It admits to
membership employees of the Company.
International Union, United Automobile Workers of America is a
labor organization affiliated with the American Federation of Labor.
It admits to membership employees of the Company.
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
Effective as of April 5, 1937, the Company and the AFL entered into
a collective bargaining agreement which provided, inter alia, that in.
the event neither party gave notice to the other in writing of a de-
sire to terminate or amend the contract , it would be automatically re-
newed from year to year. Successive contracts were entered into on
October 24, 1938, on November 1, 1939, and on January 6, 1941. Each
of the contracts contained an automatic renewal clause . On May 31,
1942, the 1941 contract was automatically renewed in the absence of
any notice by either party of a desire to terminate. Thereafter, upon-
the solicitation of the AFL, negotiations were initiated for a'substan-
tial alteration of the contract. After an ensuing disagreement had
been carried to the National War Labor Board, herein called the
W. L. B., the Company and the AFL on October 2, 1942, entered into
a supplementary Memorandum of Agreement which made certain
MARVEL- SCHEBLER DIVISION 107
changes, in the 1941 contract, as renewed, including the- duration of
agreement clause. This latter clause provided that the term of the
contract would extend until October 5, 1943, and be subject to auto-
matic renewal unless either party gave written notice of a desire
to terminate at least thirty (30) days prior to the anniversary date
.of the contract, and contained the additional provisions`-that "either
party may request amendment of the agreement by giving thirty (30)
days notice prior to the anniversary date, said request for amendment
not to have the effect of terminating the agreement," and that "the
wage question may be reopened by either party after six (6) months
from October 5, 1942..."
In the summer of 1943, the AFL reopened the wage question and
presented certain grievances to the Company. Once again, a dis-
agreement ensued between the parties to the contract. In the mean=
while, the last day 'under the contract for giving notice of a desire
to terminate, September 5, 1943, passed without such notice having
been given. On September 9; 1943, the AFL nailed a letter to the
-Company expressing a desire "to negotiate certain modifications and
amendments" of the contract. The Company took the position that
this notice was not timely, as the contract has been automatically re-
newed on September 5, 1943. The dispute between the Company and
the AFL was submitted to the W. L. B. on September 24, 1043. The
W. L. B. panel then held a hearing on November 4 and on November
18, 1943. Between these dates, on November 12, the CIO first gave
notice to the Company of its representation claim. The Company
did not reply to this notice. The CIO then filed its petition with the
Board on November 20, 1943. Oil- December 6, 1943, the W. L. B. panel
issued its report concerning the dispute between the Company and the
AFL.
The Company and .AFL now contend that the 1941 contract, as
modified by the 1942 Memorandum of Agreement, was autoniatically
renewed on September 5, 1943, prior to any notice of the claims of
the CIO. Consequently they argue that the renewed contract is a bar
to 'a present determination of representatives under the well-settled
doctrine of the Mill B decision'- However, the CIO, in effect, attempts
to distinguish that case from the instant proceeding on the basis of
the' somewhat different factual situations involved. Thus,, the CIO
points to the AFL's efforts to negotiate modifications and amendments
of the contract subsequent to its renewal date, and to the ultimate re-
course to the W. L. B. This course of action, it is urged in substance,
amounted to negotiations for a new contract during which no agree-
ment was in force, and consequently, the CIO's claim to representation,
'See Matter of Mill B, Inc ., division of Irwin & Lyons , partners, doing business under the
assumed name of Irwin & Lyons, 40 N. L. R. B 346.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
o
having been communicated to the Company in the midst of these ne-
gotiations, was timely. I '
It is apparent that this case raises some novel questions. We be-
lieve, however, that answers can be found in a reexamination of the
underlying principles of the Mill B doctrine. In that case we pointed
.out that in-representation proceedings labor organizations are merely
the agents of the employees in bargaining units. Once the authority
of these agents to act for the employees has been properly established
under Section 9 (a) of the Act, a contract negotiated by one of them
in a representative capacity has, with respect to all its terms and con-
ditions, the same binding effect upon an employer and the employees
as any contract between private parties, provided its terms and con-
ditions conform 'so generally with collective bargaining customs in
the industry that its execution cannot be said to be outside the scope
of the agency. Provisions in collective bargaining agreements for
automatic, renewal in the absence of 30 or 60 days' notice to terminate
given prior to the anniversary date are conventional clauses that fall
under this category, and should employees fail to give notice of a de-
sire to change bargaining agents before such clauses take effect, they,
as well as their employer, are bound by the automatic renewal of the
contract.
In the present proceeding, the employees might have given notice
of a desire to change representatives prior to September 5, 1943, the
automatic renewal date of the contract. They failed to do so. There-
fore, taking the contract at its face value, it would appear that on Sep-
tember 5, 1943, it was renewed, and that the Company and the em-
ployees were bound by its terms and conditions until October 5, 1944.
In this posture, the instant case would come squarely within the Mill B
doctrine, and we would have no course other than to dismiss the
petition.
The real contention of the CIO appears to be, however, that the lan-
guage in the contract should not be taken at face value. Its argument
is that the parties themselves 'did not regard the automatic renewal
provision as being binding, since within 4 days after the renewal date
the AFL took steps(to modify the contract. It is to be noted, how-
ever, that the legal effect of a, contract is not impaired by the desire
of one party to repudiate or modify it. Thus, in this instance, the
Company stood upon its legal rights and refused the AFL's request to
make modifications and amendments. Since the Company had a legal
right to refuse to modify or amend the contract,'and did so refuse,
we cannot say that the mere unilateral attempt of the AFL to alter
an existing legal obligation gave the Company's employees an ave-
nue of escape from the renewed contract. ' .
MARVEL-SCHEBLER DIVISION 1109'
This record does not indicate that the situation has been altered by
the submission of the dispute to the W.L. B., since under the decisions
of that agency a contract, which has become legally binding, is given
full force and effect 2
One feature of the contract between the Company and the AFL
which has caused us some concern is the clause providing that either
party may request amendments upon 30 days' notice prior to the agree-
ment's anniversary date and that such requests are not to/have the
effect of terminating it. At first glance, it might seem that such a
provision is contrary to public policy in that, literally construed, it
would mean that the labor organization signing the contract might
remain the bargaining representative in perpetuity. Upon reflection,
however, we do not believe that this clause could have this effect, for
it cannot alter the well established doctrine that the employees by fil-
ing notice in timely fashion can change their bargaining representa-
tive before the automatic renewal provision becomes effective.
In accordance with the above findings, we find that the Hill B doc-
trine is applicable herein and that, therefore, the contract, as renewed
on September 5,_1943, constitutes a bar to a"present investigation and
certification of representatives.
We find that no question affecting commerce has arisen concerning
.the representation of employees of the Company, within the meaning
of Section 9 (c) of the National Labor Relations Act. We shall,
therefore, dismiss the petition, but without prejudice to the CIO'si
right to file a new petition at a reasonable time prior to September 5,
1944, the next automatic renewal date of the contract.
ORDER
Upon the basis of the foregoing findings of fact, the National Labor
Relations Board hereby orders that the petition for investigation and
certification of representatives of employees of Marvel-Schebler Di-
vision, Borg-Warner Corporation, Flint, Michigan, filed by Inter-
national Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America (UAW-CIO) be, and it hereby is, dismissed
without prejudice to the latter's right to file a new petition at a reason-
able time before September 5, 1944.
2In re Consolidated Shipbuilding Corporation (Morris Heights, N. Y.) 14 W. L. R ix.
'(March 8, 1944) Case No. 111-3462-D.