Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Sep 21, 1944

58 N.L.R.B. 449 (N.L.R.B. 1944)

I
In the Matter Of MARVEL-SCHEBLER DIVISION, BORG-WARNER CORPORA-
TION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIrCRAFT
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. O.
Case No. 7-R-1801,9.-Decided September 21,1944
Mr. Stanley H. Fulton, of Detroit, Mich., for the Company.
Sugar & Tucker, by Mr. Jack. N. Tucker of Detroit, Mich., for the
UAW-CIO.
Mr. Frank O. Boling, of Flint, Mich., and Mr. I. B. Padway, of
Washington, D. C., for the UAW-AFL.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by International Union, United Automo-
bile, Aircraft and Agricultural Implement Workers of America,
C. I. 0., herein called the UAW-CIO, alleging that a question af-
fecting commerce had arisen concerning the representation of em-
ployees of Marvel -Schebler Division , Borg-Warner Corporation,
Flint, Michigan , herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due
notice before Cecil Pearl , Trial Examiner. Said hearing was held
at Detroit , Michigan, on August 17, 1914. At the commencement of
the hearing the Trial Examiner granted a motion of International
Union, United Automobile Workers of America, Local 156, AFL,
herein called the UAW-AFL, to intervene . The Company, the UAW-
CIO, and the UAW-AFL appeared , participated , and were afforded
full opportunity to be heard, to examine and cross -examine witnesses,
and to introduce evidence bearing on the issues. The Trial Exam-
iner's rulings made at the hearing are free from prejudicial error and
are hereby affirmed. All parties were afforded opportunity to file
briefs with the Board.
58 N. L . R. B., No. 87.
449
609591-45-col. 58-30
It
459 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Borg-Warner Corporation is an Illinois corporation. We are here
concerned with its Marvel-Schebler Division at Flint, Michigan,
where it is engaged in the manufacture of gasoline carburetors and
other war- products. During the first 9 months of 1943 the Company
purchased raw materials valued in excess of $100,000, for use at its
Flint plant, about 25 percent of which was shipped to it from points
outside the State of Michigan. During the same period the Com-
pany manufactured products valued in excess of $100,000, approxi-
mately 80 percent of which was shipped to points outside the State
of Michigan.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE OCGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
International Union, United Automobile Workers of America, Local
156, is a labor organization affiliated with the American Federation
of Labor, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 5 and 14, 1944, the UAW-CIO requested the Company to
recognize it as the exclusive collective bargaining representative of the
employees at the Flint plant. The Company did not reply to these
requests.
On January 6, 1941, the Company and the UAW-AFL entered into
an exclusive bargaining contract. On October 2, 1942, the contract was
amended to continue until October 5, 1943, and from year to year
thereafter unless either party notified the other of a desire to terminate
not less than 30 days prior to any annual expiration date. On Novem-
ber 19, 1943, the UAW-CIO filed a petition in Case No. 7-R-1645 re-
questing that it be certified as exclusive bargaining representative of
the employees involved herein. On April 17, 1944, the Company
amended its contract with the UAW-AFL and provided that the con-
tract, as amended, should run until April 5, 1945, and from year to
year thereafter unless either party thereto gave notice of a desire to
terminate at least 30 days prior to any anniversary date. On April 29,
BORG-WARNER CORPORATION 451
1944, the Board issued its decision in Case No. 7-R-1645,' finding that
"the contract as renewed on September 5, 1943, constitutes a bar to a
present investigation and certification of representatives * * *.
We shall therefore, dismiss the petition, but without prejudice to the
UAW-CIO's right to file a new petition at a reasonable time prior to
September 5, 1944, the next automatic renewal date of the contract."
The Company and the UAW-AFL contend that their contract, as
amended on April 17, 1944, constitutes a bar to the instant proceeding.
It should be noted that the amendment of April 17, 1944, was entered
into prior to`tlie Board's decision of April 29, 1944, alluded to above,
and at a time when the Company and the UAW-AFL were taking the
position before this Board that there should be no election prior to the
termination date of the October contract. To sustain the position now
taken by the Company and the UAW-AFL would have the effect of
disfranchising the employees forever of an opportunity to select their
own collective bargaining representative. The Board, in its decision
of April 29, 1944, specifically provided that the UAW-CIO should be
afforded an opportunity to file a new petition at a reasonable time prior
to September 5, 1944. The UAW-CIO filed its petition herein on July
5, 1944. Thus, the amendment of April 17, 1944, to the contract must
necessarily be made subject to the above-quoted language of the Board
in its decision. Moreover, the contract of April 17, 1944, constituted
a premature extension of the October 2,1942, agreement, as renewed for
a year on September 5, 1943, and is therefore ineffectual as a bar under
our well-settled precedents.' We find that the purposes of the Act
would be effectuated by holding that the contract, as amended, is not a
bar to a determination of representatives at this time.
A -statement of a Field Examiner of the Board, introduced into
evidence at the hearing, indicates that the U. A. W.-C. I. O. repre-
sents a substantial number of employees in the, unit hereinafter found
to be appropriate.I
We find that it question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in substantial agreement with a stipulation of the parties,
that all employees at the Flint plant of the Company, excluding direct
representatives of the Company, confidential clerks, time-study men,
1 56.\ L R B 105,
2 See iltoitter of Memphis Farnitu e Company. 51 N L R n 1447
S TI,e Field Examiner reported that the UAW-CIO presented 173 authorization cards
bearing the names of pelsons Nsho appear on the Comp•tni's pa} roll of July 5, 1044 There
are approximately 570 employees in the appropi late unit The IJAW-AFL did not present
any evidence of representation but relies upon its contract as evidence of its interest in
the instant procee',mc
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office employees, plant-protection employees, superintendents, fore-
men, assistant foremen, and any other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status,of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.4
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by means of an election by secret ballot among
the employees in the appropriate unit who were employed during
the pay-roll period immediately preceding the date of the Direction
of Election herein, subject to the limitations and additions set forth
in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, section 9, of National Labor
Relations Board Rules and R°gulations-S^ries 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Mariiel-Schebler
Division, Borg-Warner Corporation, Flint, Michigan, an election by
secret ballot shall be conducted as early as possible, but not later than
thirty (30) days from the date of this Direction, under the direction
and supervision of the Regional Director for the Seventh Region,
acting in this matter as agent for the National Labor Relations Board,
and subject to Article III, Sections 10 and 11, of said Rules and
Regulations, among the employees in the unit found appropriate in
Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill
or on vacation or temporarily laid off and including employees in the
armed forces of the United States who present themselves in person
at the polls, but excluding any who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date of
the election, to determine whether they desire to be represented by
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, C. I. 0., or by International Union,
United Automobile Workers of America, Local 156, A. F. L., for the
purposes of collective bargaining, or by neither. -
4 This is the same unit that is provided for in the contract between the UAW-AFL and
the Company.