Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Feb 10, 1953

102 N.L.R.B. 1223 (N.L.R.B. 1953)

WARNER GEAR DIVISION 1223
the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of
the Act.
WE WILL offer to Margaret Rushford immediate and full reinstatement to
her former or substantially equivalent position , without prejudice to her
seniority or other rights and privileges previously enjoyed, and make her
whole for any loss of pay she may have suffered as a result of the discrimina-
tion against her.
WE WILL bargain collectively, upon request, with INTERNATIONAL UNION,
UNITED AUTOMOBILE , AIRCRAFT AND AGRICULTUR AL IMPLEMENT WORKERS OF
AMERICA, LOCAL 163 (UAW-CIO), as the exclusive representative of all our
employees in the bargaining unit described below with respect to rates of
pay, wages , hours of employment , and other conditions of employment, and,
if an agreement is reached , embody such understanding in a signed contract.
The bargaining unit is :
All our production and maintenance employees , excluding office and
clerical employees , professional employees , guards, and supervisors as
defined in the Act.
All our employees are free to become or refrain from becoming members of the
above-named union or any other labor organization, except to the extent that
the right to refrain may be affected by a lawful agreement requiring member-
ship in a labor organization as a condition of employment.
GEORGE C. KNIGHT COMPANY,
Employer.
By--------------------------------
Dated--------------------- ---------- ( Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
WARNER GEAR DIvisiON, BORG-WARNER CORPORATION and LOCAL 287,
INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO. Case No. 3.5-
CA-3P27. February 10, 1953
Decision and Order
On December 15, 1952, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, a copy of which
is attached hereto, finding that the Respondent had not engaged and
is not engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) and (3) of the Act, as alleged in the complaint, and
recommending that the complaint be dismissed in its entirety. There-
after, the General Counsel filed exceptions to the Intermediate Report.
102 NLRB No. 110.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Genera] Counsel's exceptions, and the entire
record in the case. We hereby adopt the findings, conclusions, and
recommendations of the Trial Examiner.
Order
IT Is HEREBY ORDERED that the complaint be, and it hereby is, dis-
missed in its entirety.
'Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its,
powers in connection with this case to a three -member panel [ Members Houston , Styles,
and Peterson]
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by Local 287, International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America, CIO, a labor organiza-
tion herein called the Union, the General Counsel for the National Labor
Relations Board issued a complaint on July 23, 1952, against Warner Gear Divi-
sion, Borg-Warner Corporation, herein called the Respondent, alleging that the
Respondent had engaged in specified conduct violating Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat.
136, herein called the Act. Copies of the complaint and charges were served
upon the Respondent, and the Respondent in turn filed an answer denying the
commission of the unfair labor practices alleged.
Pursuant to notice, a hearing was held in :Muncie, Indiana, on November 12
and 13, 1952, before the undersigned Trial Examiner. The General Counsel, the
Respondent, and the Union were represented at the hearing and all parties were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence hearing on the issues. The parties were given oppor-
tunity to present oral argument before the Trial Examiner and also to file briefs
and proposed findings of fact and conclusions of law.
Upon the entire record in the case, and upon observation of the demeanor of
witnesses, I make the following:
FINDINGS OF FACT
1. THE. BUSINESS OF THE RESPONDENT
The Respondent is an Illinois corporation with a plant in Muncie, Indiana,
where it is engaged in the manufacture and sale of transmissions and other
automotive parts. The Respondent's yearly interstate purchase of materials
and sale of finished products respectively exceed $1,000,000.
I find that the Respondent is engaged in commerce within the meaning of
the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent refused to promote George Smith on or about December 6,
1951. Whether this refusal was discriminatory, as the General Counsel contends
and which the Respondent denies, is the issue in this case.
WARNER GEAR DIVISION 1225
The Union is the certified bargaining representative of the Respondent's
employees and has been in contractual relationship with the Respondent since
1937. The contract effective during the period under consideration here pro-
vides for a steward body and a union negotiating committee. It is the steward's
function, among other things, to police contracts and to participate in processing
grievances thereunder. The contract provides that stewards be afforded reason-
able time off from their jobs to perform the functions of their office and that
the Respondent pay for such time off to a maximum of 5 hours weekly. The
contract also prescribes that promotions be made on a seniority basis but that
such standard apply only to employees who are determined eligible for promo-
tion and accordingly placed on a promotion list. If, therefore, an applicant is
not determined by the Respondent to be qualified for promotion, his seniority
is to no avail for such purposes. Where an applicant is refused placement
on the promotion list, the contract provides for so-called review meetings at
which management and union representatives review the applicant's capabilities
and the Respondent's reasons for not including him on such roster.
Smith's seniority dates from March 1941, and after serving a short time as a
bench inspector he became a class B bench inspector, a rating given auto-
matically upon completing the probation period. He was on military leave
from October 1941 until he returned in May 1945 to the same position of class
B bench inspector. On March 4, 1946, Smith was given a rating of class A
bench inspector, which carries with it a wage increase ; this change of rating
is not an automatic matter but is awarded on a merit basis. Orvill McConnell,
superviser of inspection, testified that it was company policy at the time to
give a class A rating to all returning servicemen who theretofore had occupied
a class B inspection classification. However, as appears above, Smith was
not given his A rating until almost a year after returning from military duties ;
moreover, Smith was never advised and no witness testified that Smith's
change in classification resulted from his veteran status. Under the circum-
stances I find that Smith's rise to class A bench inspector was based on con-
siderations of merit, wholly apart from the claimed company policy as to
veterans mentioned above. Smith -transferred to the grinding department
in April 1950 upon his own request and returned to class A bench inspection
in August 1951, the position he has since been occupying.
A vacancy arose in the salvage-inspection department in November 1951 and
Smith applied for the job, Smith having been a class A bench inspector for
more than 4 years at the time. Salvage inspection pays a higher wage rate
than class A bench inspection and the usual but not invariable line of advance-
ment is from class B to class A bench inspector to salvage inspector. The record
establishes that class A bench inspectors are generally more experienced and
qualified in the various inspection jobs than the class B inspectors are, for
it is on the basis of such considerations of merit that class A status is given.
The record further establishes that salvage and bench inspection positions
require the same basic skills and that the salvage inspector must have at least
all the proficiency and experience of the class A bench inspector. The salvage
inspector, moreover, possesses an area of discretion in the performance of his
job which calls for the exercise of judgment not required, or at least not re-
quired to such extent, by bench inspectors. Bench inspectors decide whether
a given product meets the Respondent's engineering specifications ; salvage
inspectors pass on the materials rejected by the bench inspectors and determine,
on the basis of broad knowledge of materials, their characteristics and defects,
and on the basis of a knowledge of all lines of the Respondent's production,
whether such rejected materials can be salvaged for use in any of the various
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lines of the Respondent's production or whether the rejected materials are wholly
unfit for use by the Respondent.
The Respondent refused to place Smith on the aforementioned promotion
list for the salvage job when Smith filed his application for the promotion to
such position in November 1951. Instead, the position was given to another
applicant, Jimmy Allman, in December 1951. Allman's employment with the
Respondent began in April 1950 as a bench inspector, and 3 months later he
automatically became a class B bench inspector ; he had had no previous inspec-
tion experience. Allman applied to his supervisors for a class A rating about 24
times during his occupancy of the class B classification, each time to be rejected
for lack of qualifications. Allman still had not received his class A rating
at the time of his promotion to the salvage position. Had Smith been placed
on the promotion list, he would have obtained the salvage position as against
Allman on the basis of applicable seniority standards.
Early in December 1951, shortly after Smith had applied for the salvage job,
Chief Inspector James McKibben (with supervision over bench and salvage
inspectors ) asked Smith whether he was still interested in the salvage position.
Smith said he was. Smith was a union steward at the time, and McKibben told
Smith that he couldn't be both a salvage inspector and a union steward. Smith
replied that he would have to consult the union bargaining committee on the
matter, and McKibben told Smith to advise McKibben that evening what was
decided. Smith returned to McKibben's office, taking employee Guy Sutton
with him, and Smith informed McKibben that he would accept the salvage
job and that McKibben and the union committee could decide whether Smith
might continue as union steward. Smith and Sutton testified in effect that
McKibben indicated to Smith at this point that Smith could have the salvage
position if he gave up the stewardship. McKibben testified that he merely asked
Smith vhether he would be willing to give up the stewardship in order to be
considered for the salvage job, that he did not offer the salvage position to
Smith. In any event, however, McKibben then told Smith that employee Ralph
Fisher had been "man enough" to tell McKibben on an earlier occasion that he,
Fisher, would give up his position as union committeeman in order to obtain
a promotion to an inspection position. (This Fisher incident occurred in 1950
when Fisher, who was then either a union steward or committeeman, applied
for a promotion as either a tool or salvage inspector. Under the bargaining agree-
ment, union committeemen are also permitted time off from work to perform
their functions under the contract. McKibben advised Fisher that he wanted
a full-time man for this job and that he couldn't promote Fisher as an inspector
because Fisher was a committeeman. Fisher resigned his union office some-
time afterward and notified McKibben to such effect. Within a week of such
notification, Fisher received the promotion.) McKibben also told Smith that
the salvage job was a full-time position and that a steward spends too much
time on union business to take such job.
The Union and the Respondent held several grievance and review meetings
concerning the Respondent's refusal to place Smith on the promotion list and
to promote him. The Respondent apparently relied on McKibben's recom-
mendation that Smith was not qualified for the salvage position and at these
various meetings McKibben gave as reasons for Smith's disqualification that
Smith had a physical disability, that he was nervous, that he had received dis-
cipline slips, and that he could not remember instructions. McKibben also men-
tioned at these meetings that he had to have a full-time man at the salvage
job and in that connection he referred to the time Smith spent on union
business.
WARNER GEAR DIVISION 1227
As to the physical disability matter, it appears that Smith sustained a leg
injury in military service. The record establishes that the physical require-
ments of salvage inspection are no more arduous than those of bench inspection
and, in any event, the Respondent in effect disavowed this contention at the
aforementioned grievance meetings and also at the hearing as a basis of dis-
qualification. Concerning the alleged nervousness, the Respondent adduced the
testimony of Garner Smith, then the assistant chief inspector, to the effect
that Smith left his work on occasion, allegedly to relieve his nervous tension;
Smith testified in this connection that McKibben had frequently criticized him
for leaving his work on union business. It appears, however, that whenever
Smith did leave his work he did so on proper union business-as permitted under
the contract-of which McKibben was aware at the time. Respecting the
discipline slips, the last such slip was received by Smith in October 1949 and
the only such slips even relating to his qualifications were received in September
1948 and July 1949 for misbilling materials. It appears that other bench
inspectors had also received discipline slips for the same reason and, in any
event, Respondent's Employment Manager Fred Fell stated at one of these
grievance meetings that Smith's discipline slips were "old" and of no significance
on the question of Smith's qualifications. In connection with the claim that
Smith was unable to remember instructions, the Respondent adduced testimony
to the effect that, although bench and salvage inspection require the same
basic skills, the salvage inspector is required to keep in mind many more
specifications and other details of a greater variety of materials and equip-
ment ; and in support of the claim of Smith's alleged weakness in this regard,
the Respondent adduced the testimony of Assistant Foreman Adam Dickey
to the effect that Dickey would give Smith the minimum and maximum tolerances
for certain items only to have Smith ask him sometime later whether Smith
might not depart from the stated specifications. Dickey further testified,
however, that he, Dickey, was sometimes authorized to depart from the
prescribed specifications and that only by inquiring of Dickey could Smith
learn whether the normal specifications might be varied at any given time.
All other inspectors make similar inquiries, and are in fact supposed to do so.
Finally, with respect to the time spent by Smith on union business as au-
thorized under the contract, McKibben had frequently criticized Smith on this
score as already noted. McKibben testified that when he asked whether
Smith would be willing to give up the steward's job he thought he should
have a full-time man on the job. McKibben nevertheless testified that this
factor played no part in his recommendation against Smith's promotion and
that he considered Smith unqualified wholly apart from this factor. Moreover,
various management representatives testified that time properly devoted to
union business during working hours is not material in considering any union
steward or committeeman for promotion. The record also shows that Smith
never devoted more time to union business than was authorized under the
contract.
The General Counsel adduced testimony to the effect that salvage inspection
work, unlike bench inspection which is in effect part of a production-line process,
is permitted to pile up and that when salvage inspectors are absent they need
not be immediately replaced whereas bench inspectors or their replacements
must be on the job constantly. Accordingly, the General Counsel urges that
McKibben's and therefore the Respondent's rejection of Smith's promotion
stemmed from an antipathy to the Union rather than out of consideration for
time spent on union business.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
The various contentions relating to Smith's alleged lack of qualifications which
the Respondent advances here are specious in my opinion. And even were I to
accept McKibben's testimony that he merely inquired whether Smith would
surrender his stewardship in order to be considered for the salvage position,
but without actually offering the position to Smith on such condition, I still
would find and I do find that the Respondent failed to place Smith on the pro-
motion list and consequently to promote him because Smith was unwilling to
give up his union office. Ordinarily, an employer may not penalize an employee
for holding union office or otherwise engaging in union activities. If, there-
fore, the Respondent's conduct respecting Smith was motivated merely by the
fact of Smith's stewardship, the finding of unlawfulness would follow.
But the record shows that another inference may be drawn which, while it
relates to Smith's union stewardship, in fact involves another independent
consideration, namely, that the Respondent may want its employees to devote
all working time to production operations and not to union or other activities,
however authorized these activities are under the contract. The issue of fact
becomes difficult at this point, however, for the Respondent itself does not
claim, and its testimony actually denies, that this other factor was a considera-
tion in Smith's case-it could not state otherwise, I venture to say, lest it admit
a possible violation of its contract with the Union, although I need not and
do not decide such contract violation in this case ; it also denies, of course,
that its conduct was motivated by union animosity. That the Respondent's
opposition was to the Union rather than to stewards devoting working time to
union business, albeit permitted under the contract, is demonstrated in the
opinion of the General Counsel by the aforementioned fact-which the record
establishes-that steward activities are more adaptable to the operations of
salvage inspectors than of bench inspectors.
Perhaps I should explain why, as the promotion was denied because of
Smith's stewardship (a reason which is ordinarily conclusive support for a find-
ing of discrimination), it is necessary in this case to pursue the matter further.
The Act protects the right of employees to join unions and to participate in its
activities and it is therefore unlawful to treat employees disparately because
of such membership and activities. The Respondent, for example, could not
require Smith to give up his union membership as a condition of the promotion ;
nor could it deny such promotion because Smith had been a union steward in
times past. On the other hand, the Act does not give Smith a right to engage
in union activities during working time. Such right, in the present case, arises,
if at all, from the contract. Where, therefore, the union stewardship necessarily
involves taking time out from normal working time for the performance of
union functions it becomes necessary to determine whether the denial of
Smith's promotion was predicated on animosity toward the Union, in which
event I would find discrimination, or whether it stemmed from a desire to
have employees devote all their production time to their work, in which event
I would not find discrimination. That the latter alternative might also tend
to discourage employees from seeking or holding steward positions is not
determinative in this context, I believe, unless it also appear that the Re-
spondent denied promotions because of past union activities during working
time-which then would be tantamount to discrimination on the basis of union
membership alone.
Reference has already been made to the long bargaining relationship between
the parties, and as far as this record is concerned , there is no independent
showing of any antiunion animus either on the part of McKibben or other
COPPERWELD STEEL COMPANY 1229
management representatives . ( I consider , of course, that McKibben 's conduct
is attributable to the Respondent .) McKibben 's statements to Smith and also
to Fisher in 1950 seem to indicate his preoccupation with "full -time" workers,
and the General Counsel 's argument that Smith "could have been more easily
spared for his union duties from salvage, a non-assembly-line process, than
from bench inspection , an assembly line process ," does not necessarily negate
a preference by McKibben that employees in any or all classifications devote
all their time to their work. I am unable to find on the basis of this record
that the evidence preponderantly supports the inference of union animosity
which the General Counsel would establish . I shall accordingly recommend that
the complaint be dismissed.
[Recommendations omitted from publication in this volume.]
COPPERWELD STEEL COMPANY and OFFICE , CLERICAL & SALARIED EM-
PLOYEES OF THE COPPERWELD STEEL COMPANY , PETITIONER. Case
No. 6-RC-1152. February 10, 1953
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William A. McGowan, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Members Houston, Styles, and Peterson],
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of all nonsupervisory salaried em-
ployees at the Employer's plant in Glassport, Pennsylvania, including
office clerical, technical, and professional employees, but excluding
three confidential employees.' The Employer would exclude certain
other employees, discussed below, as confidential employees, or as
both confidential and professional .2 As appears hereafter, the em-
ployees designated by the Employer as professional are either tech
1 The secretaries to the three policy-making executives , I. e., the executive vice president,
treasurer , and secretary, are stipulated to be confidential employees , and we so find.
2 The Employer further contends that the development engineer is a supervisor, and
should be excluded also for that reason. See footnote 13.
102 NLRB No. 119.