Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Jul 13, 1955

113 N.L.R.B. 152 (N.L.R.B. 1955)

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. National Association of Broadcast Engineers and Technicians , CIO, was, on
December 30, 1952, and at all times since has been the exclusive representative within
the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for
the purposes of collective bargaining.
4. By refusing to bargain collectively with National Association of Broadcast En-
gineers and Technicians , CIO, as the exclusive representative of the employees
in the appropriate unit , KTRH Broadcasting Company has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By such refusal - to bargain and by interrogating and threatening its employees
concerning union affiliation and activities , thereby interfering with, restraining, and
coercing its employees in the exercise of 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 (a) (1) of the Act.
6. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Borg-Warner Corporation and International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America, CIO and Local No. 979, of the International Union,
United Automobile Workers of America , AFL, Party to the
Contract . Case No. 13-CA-1685. July 13, 1955
DECISION AND ORDER
On March 22, 1955, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter the Respond-
ent, the Charging Union, hereinafter called the CIO, and the Party
to the Contract, hereinafter called the AFL, each filed exceptions to
the Intermediate Report. The Respondent and the AFL each filed a
brief and the CIO filed a statement in support of the Intermediate
Report, in which it also preserved certain exceptions to rulings of the
Trial Examiner.
The Board 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 exceptions and briefs, and the entire record in
the case, and for the reasons set forth below has decided to dismiss
the complaint in its entirety.'
The Trial Examiner found that the Respondent violated Sections
8 (a) (1) and (2) of the Act by including the prospective employees
of its newly established transmission department in building B within
I The Respondent 's request for oral argument is hereby denied as the record and briefs
adequately present the issues and the positions of the parties.
113 NLRB No. 18.
BORG-WARNER CORPORATION 153
the coverage of its union-security contract with the AFL for the pro-
duction and maintenance employees of Respondent's existing facilities
at a time when no employees had yet been hired for the transmission
department. The Trial Examiner found that the employees of the
transmission department did not constitute an accretion to the existing
unit of production and maintenance employees, but that they could be
represented either as a separate appropriate unit or as part of the
existing unit, and were therefore entitled to a self-determination elec-
tion in which to decide whether they wished to be separately repre-
sented. He concluded that in these circumstances Respondent's execu-
tion of union-security provisions applicable to the employees of the
transmission department before the group came into existence, and
the application of the provisions thereafter, coerced those employees
in their choice of representatives in violation of Section 8 (a) (1).
He further concluded that this conduct violated Section 8 (a) (2)
because the Respondent was aware of the Section 8 (a) (2) charges
previously filed by the CIO with respect to the employees of the trans-
mission department, and therefore had knowledge of a rival union
claim at the time it contracted with the AFL.
Unlike the Trial Examiner, we find that the newly hired employees
of the transmission department constituted an accretion to the estab-
lished production and maintenance unit. The Trial Examiner's find-
ing that they could constitute a separate appropriate unit was based
on "the fact that [the transmission department] was established to
manufacture a new product and housed in a separate building . . . the
absence of bargaining history . . . and the substantial number of
distinct and different job classifications in the new department." How-
ever, we do not agree that the stipulated facts establish that there were
significantly distinct and different job classifications in the new de-
partment. It was stipulated that 21 of the 29 classifications in the
transmission department were substantially the same as classifications
employed in the Respondent's other operations, and that the remaining
8 classifications involved skills which were duplicated "in varying
degrees" in classifications in the Respondent's other operations. It
was also stipulated that manufacturing processes in connection with
transmissions are occasionally performed in the old buildings. These
facts clearly indicate the existence of a considerable degree of simi-
larity between the skills and manufacturing processes required in the
manufacture of transmissions and the Respondent's other products.
In view of the similarity of skills and manufacturing processes re-
quired throughout Respondent's operations, and the additional fac-
tors described in the Intermediate Report, such as the centralized con-
trol of labor relations and hiring, uniformity of wages, hours, and
working conditions, the fact that the new department was staffed with
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a substantial number of transferees from Respondent 's other opera-
tions, and the proximity of the new building B to the other buildings
within the same fenced area, we find that the newly hired employees
of the transmission department constituted an accretion to the exist-
ing production and maintenance unit. As an accretion to an existing
unit, these emplcyees would not, under established Board policy, have
been accorded a self-determination election.2 Accordingly , the Re-
spondent 's extension of its union -security contract with the AFL to
those employees in the circumstances of this case did not violate Sec-
tion 8 ( a) (1) or (2) of the Act . In so finding, we reject the Trial
Examiner 's finding that the filing of the charges by the CIO prior to
the execution of the contract was sufficient standing alone to estab-
lish the CIO as a rival union for representation of the employees in
question . Furthermore , in the factual context of this case , we find
the Trial Examiner's discussion of Zia Company , 108 NLRB 1134, in-
applicable to the determination of the issues herein.
As indicated in the Intermediate Report, the Trial Examiner re-
ceived certain stipulations of fact between the General Counsel, the
Respondent , and the AFL, in which the CIO refused to join. Al-
though the CIO urges adoption of the Trial Examiner 's findings as
they are favorable to its position, it preserves an exception to the use
of those portions of the stipulations in which it did not join as a basis
for findings contrary to those of the Trial Examiner . We find no
merit in this exception . The General Counsel, who is charged with
primary responsibility for prosecuting the case, may properly enter
appropriate stipulations with adverse parties concerning facts rele-
vant to prosecution of the complaint which his investigation discloses,
subject of course , to the right of a charging party to introduce con-
trary evidence , or to adduce additional facts which , in its opinion, are
material. In this case, the record indicates that the CIO was pre-
pared to do neither. Indeed it did not even assert that the stipula-
tions were inaccurate , but merely refused to join in certain portions
which related to the AFL's representative status in the preexisting
unit and certain physical characteristics of the transmission depart-
ment. The Marine Engineers ' Beneficial Association case,3 relied on
by the CIO , does not support its exception , as it deals only with a
charging party's right to a hearing after a complaint has issued in
lieu of a settlement agreement to which it does not consent . We fur-
ther find that the Trial Examiner did not err in denying the CIO a
second continuance in order to subpena officials of the Respondent.
As the Trial Examiner indicates , the CIO had made no effort to sub-
pena any of these witnesses in the 2-month period that elapsed be-
2 Saco-Lowell Shops, 107 NLRB 590, Bulova Research and Development Laboratories,
Inc., 110 NLRB 1036
Marine Engineers' Beneficial Association v n L. R B , 202 F 2d 584 (C. A. 4).
BORG-WARNER CORPORATION 155
tween the issuance of the complaint and the hearing, and had not even
talked with any of these individuals and consequently had no knowl-
edge of what testimony they might give if called as adverse witnesses.
In these circumstances, the CIO's offer of proof was patently inade-
quate and therefore properly rejected. The Trial Examiner's denial
of the CIO's motion for a continuance is therefore affirmed.
On the basis of the foregoing findings and reasons, we shall dismiss
the complaint.
[The Board dismissed the complaint.]
MEMBER LEEDOM took no part in the consideration of the above De-
cision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the Labor Management
Relations Act of 1947, 61 Stat. 136 (herein called the Act), was heard in Decatur,
Illinois, on January 4 and 5, 1955, pursuant to due notice to all the parties. The
complaint , issued on November 2, 1954, by the General Counsel of the National
Labor Relations Board, ' and based on charges duly filed and served , alleged that
the Respondent had engaged in unfair labor practices proscribed by Section 8 (a)
(1) and (2) of the Act. In its answer , duly filed, the Respondent conceded certain
facts with respect to its business operations but denied the commission of the alleged
unfair labor practices.
All parties were represented at the hearing by attorneys. They were afforded
full opportunity to be heard , to examine and cross -examine witnesses , to introduce
relevant evidence , to argue orally , and to file briefs and proposed findings and
conclusions . At the close of the hearing the Respondent and the AFL moved
to dismiss the complaint . This motion was taken under advisement ; it is disposed
of as will appear hereinafter in this report .2 Motions by counsel for the CIO to
continue the hearing until he had an opportunity to seek enforcement of a subpena
and to make an offer of proof were denied ? Oral argument on the merits was
waived by the parties . On or before February 18, 1955 , all parties submitted
briefs which have been fully considered by the Trial Examiner.
The findings herein are based on a series of stipulations of fact entered into by
the General Counsel, the Respondent , and the AFL whereby they agreed that
their stipulations be "accorded full faith , credit and weight , as competent , credible,
wholly substantiated evidence." The CIO joined in most of these stipulations but
declined to do so as to certain particulars set forth therein. On the other hand,
the CIO offered no evidence that would tend to controvert any of the stipulated
matters.
As to those portions of the stipulations to which it did not agree the CIO now
asserts in its brief that it was denied an opportunity to cross-examine witnesses
for the Respondent and, further, that it was foreclosed from calling witnesses of its
own when the Trial Examiner refused to grant its request for a continuance.
Actually, other than to engage in a last minute effort at summoning first 1 and
then 3 of the company officials and supervisors as adverse witnesses , the CIO made
no effort to present any testimony of its own. In view of the argument which
'The General Counsel and the staff attorney appearing for him at the hearing are
referred to herein as the General Counsel and the National Labor Relations Board as the
Board The above -named Company is referred to as the Respondent or Boig -Warner, the
Chaiging Party as the CIO, and the Party to the Contract as the AFL.
0 When this Caine motion was offered at the outset of the hearing it was denied by the
Trial Examiner Prior to the heaiing, Respondent filed a motion to dismiss which was
referred to Trial Examiner Charles W. Schneider who, by older dated December 14, 1954,
granted it in pact and denied it in part This is discussed in section III, B, infra.
3 Pursuant to the request of counsel for the Charging Party, set forth in his brief, the
petition to revoke , the answer thereto , and the ruling thereon, filed in connection with
the subpena in evidence as CIO's Exhibit No. 2, are hereby made part of the record herein.
156 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
the Charging Party now urges, it might be well to set forth the sequence of events
on the last day of the hearing, all of which appears in the record.
Prior to the noon recess, and after the General Counsel rested, counsel for
the CIO asked counsel for Respondent if Mr. B. T. Andrix, vice president and
director of industrial relations for the Company, would be available to testify and
then stated "I propose to call Mr. Andrix as a witness for adverse examination. .. .
I propose to examine Mr. Andrix briefly. . . . I think with that, we will rest."
After the noon recess, counsel for Respondent stated that, pursuant to Mr. Friedman's
request, he had endeavored to contact Mr. Andrix but without success. Mr. Fried-
man then moved to recess the hearing until the following morning in order that
he have an opportunity to serve a subpena on the proposed witness. This motion
was strenuously opposed by Respondent and the AFL. The Trial Examiner over-
ruled their objections and recessed the hearing for approximately 2 hours to
permit the CIO to serve process on its prospective witness. When the hearing
reconvened Mr. Friedman stated that during the recess he had endeavored to
subpena Andrix and two company supervisors but that he had effected service on
only one, Mr. Warren Carter. When the latter did not appear, counsel for the
CIO moved to adjourn the hearing for such time as would be necessary for the
General Counsel to secure an order from a federal district court enforcing the
subpena. This motion was opposed by the General Counsel and all other parties.
After reviewing the fact that the CIO had made no effort to subpena any of these
witnesses in the 2-month period that elapsed between the issuance of the com-
plaint and the opening of the hearing and upon consideration of the additional fact
that counsel conceded that he had not even talked with any of the individuals
concerned so that it was apparent he had no knowledge of what testimony they
might give when called to the stand as adverse witnesses, I denied his motion for
a continuance. The Charging Party, having no other evidence to offer, then rested.
Relying on Marine Engineers' Beneficial Association v. N. L. R B., 202 F. 2d 546
(C. A. 3), the CIO now urges reconsideration of its motion for a continuance.
The cited case plainly holds that once a complaint is issued the Charging Party
is entitled to a hearing. That right, however, was accorded the CIO here. More-
over, after the General Counsel rested, it was afforded an opportunity to present
whatever relevant, material, and competent testimony it had. After offering one
exhibit and then joining in a major portion of the various stipulations to which
the other parties had agreed, the CIO then sought time to engage in a search for
witnesses, a step which adequate preparation and diligent service of subpenas
prior to trial should have obviated. In view of these circumstances and upon
reconsideration of the motion for a continuance, the motion is again denied. St Louis
Stave & Lumber Co. v. United States, 177 F. 178, 180 (C. A. 8); Armour & Co. v.
Kollmeyer, 161 F. 78, 80-81 (C. A. 8); cf. California Apparel Creators v. Wieder of
California, 162 F. 2d 893, 901-902 (C. A. 2), cert. denied 332 U. S. 816.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Borg-Warner, an Illinois corporation, with general offices in Chicago and sub-
sidiaries and divisions which operate plants in various States of the United States
and the Dominion of Canada, is engaged in the business of manufacturing a variety
of automotive, electrical, household-appliance, and other products for distribu-
tion and sale. Only the Marvel-Schebler Products Division of Borg-Warner, located
in Decatur, Illinois, is involved in the instant matter. The latter division annually
sells and ships finished products valued in excess of $1,000,000 per year to points
located outside the State of Illinois Upon the foregoing facts, the Respondent
concedes, and I find, that it is engaged in commerce within the meaning of the
Act.
IT. THE LABOR ORGANIZATIONS INVOLVED
The CIO and AFL are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
The AFL was certified as the collective-bargaining agent of the Respondent's
production and maintenance employees on January 8, 1951, following an election
held pursuant to an agreement for consent election. Borg-Warner Corporation,
BORG-WARNER CORPORATION 157
Case No. 13-RC-1659 ( not reported in printed volumes of Board Decisions and
Orders ). On February 26, 1951, the Respondent and the AFL signed their first
collective-bargaining agreement . One year later they entered into another con-
tract. Early in January 1954, and pursuant to a notice to terminate as contained
in their current contract , the Company and the AFL began negotiations looking to
the execution of a new agreement . After a series of meetings the parties reached
accord on numerous issues but arrived at a stalemate as to other matters. On
March 9, the AFL called a meeting for a strike vote on March 11 . On the latter
date the employees voted to authorize a strike. Two days later , however, the parties
met and resolved their differences . On March 15, a majority of the employees
ratified the proposed contract and on the following day the AFL presented cards
signed by 385 out of 454 employees authorizing it to represent them. That same
day the Company and the AFL signed their third and presently existing con-
tract , which , among other provisions, contains a union-security clause and covers
a 2-year term.
In the meantime , on March 11 , the CIO filed unfair labor practice charges with
the Regional Office of the Board, alleging that the Company had unlawfully as-
sisted the AFL by recognizing it as bargaining agent for employees to be hired in
a new building , then under construction ( referred to by the parties and here-
after as "building B"), and by granting advance seniority and preferential hiring
in the new department to members of the AFL . On March 12 , the CIO notified
the Company that it represented a majority of the production and maintenance em-
ployees in the plant, and requested recognition and a conference to commence col-
lective bargaining on behalf of the employees . Insofar as the record indicates, the
Company made no response to this demand . On the other hand, the CIO did not
follow up its claim to a majority by filing a representation petition with the Board
either within the 10-day period established in General Electric X-Ray Corp., 67
NLRB 997, or at any time thereafter.
B. Contentions of the parties
The General Counsel 's complaint originally alleged that the Company had vio-
lated the Act because ( 1) it had signed the 1954 contract with the AFL not-
withstanding the CIO claim to represent a majority of the employees and (2)
the aforesaid contract covered not only all employees then on the payroll but also
applied, prospectively , to all employees who would be hired to work in building
B, where the Company planned to manufacture automatic transmissions. Prior
to the hearing before the Trial Examiner , the Respondent moved to dismiss the
complaint, citing William D. Gibson Co., et al., 110 NLRB 660. The General
Counsel conceded that the motion should be granted insofar as the complaint al-
leged that the contract violated the Act in its application to those who were
employed by the Company at the time of its execution , and Trial Examiner
Schneider so ruled. There remained for disposition at the hearing before the Trial
Examiner only the issue as to whether it was violative of Section 8 (a)
(1) and ( 2) of the Act for the Company and the AFL to include within the
scope of their contract those employees who would be hired in building B when
work began there. At the outset of the hearing Respondent moved to dismiss this
allegation in the complaint on the ground that the holding in Gibson , supra, left no
issues to be tried and, further, that basically only a question of representation was
involved so that resort should be had to a proceeding under Section 9 rather than
an unfair labor practice case under Section 8 of the Act . This motion was de-
nied.
C. The facts
Prior to 1954 the Company was engaged in the manufacture of carburetors, jet
engine pumps , power brakes , and hydraulic pumps. During 1953 it received an
order from the Ford Motor Company for the production of "Fordomatic" auto-
matic transmissions . At no time previously had the Respondent ever engaged in
the manufacture of this product . As a result of this fact and the size and character
of the order , fulfillment of the contract required the construction of building B
where the necessary manufacturing operations could be performed . For that pur-
pose, in August 1953 the Company acquired additional acreage adjacent to the tract
upon which the then existing buildings were located. Because of the topography
of the land , fire hazards , traffic conditions , and various other problems, building B
was located about 800 feet from the other existing buildings at the plant. Although
the first employees went to work in the new building on March 31, actual produc-
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of automatic transmissions did not begin there until May 1954.4 During
the period from May through September 10, the Company hired 79 new employees
to work there. By September 1954 there were about 160 employees in the trans-
mission department of whom 101 had, at one time or another, worked in the old
buildings.
The job classifications, skills, and operations performed on all of the products
manufactured by the Respondent are substantially the same in 21 of the jobs con-
nected with the production of automatic transmissions in building B and the
manufacture of carburetors, jet engine pumps, power brakes, and hydraulic pumps
in other departments of the plant. There are also 21 other classifications used
in the production of other products but not in the manufacture of automatic trans-
missions. Finally, there are eight classifications used solely in the production of
automatic transmissions and nowhere else in the plant.5
The Company's labor relations are under the direction of one man, Mr. B. T.
Andrix, who is also in charge of the training program for all employees. All of
the plant properties are enclosed by a common fence and there is one common
entrance from the highway to the property. There is one employment office through
which employees for all departments are hired and one payroll section for the
entire plant. All of the different products manufactured by the Company are tested
in one testing and control laboratory which is now located in building B; formerly
this laboratory was in one of the original production buildings. All employees are
covered by the same health and welfare program. The same medical staff renders
medical care and gives physical examinations to all the employees and one nurse
furnishes first aid to an employee injured in any of the departments or buildings
All production and maintenance employees in the various departments in all build-
ings comply with the same safety regulations. There is a common water supply,
sewage system, and electricity for all buildings and one switchboard serves all tele-
phones on the property. The same badge system is used to identify all employees
and all of the guards are under the direction of one captain, who, in turn, reports
to Mr. Andrix. There is one fire brigade and one fire protection system for com-
batting fires in any place on the company premises.
The agreement of March 16, 1954, dealt in detail with the working conditions
of those who would be employed in the transmission department and included sec-
tions on grievance representation, seniority, transfers into and out of the department,
and rates of pay. There is no dispute that the parties intended that the contract apply
to the employees to be hired in building B and that the union-security provisions,6
as well as all others,7 were applied to that department from the time it began opera-
tions and went into production.
The Company contends that there was nothing unusual about the fact that this
contract covered the automatic transmission department before the later began opera-
tions. Insofar as the past practices of the Company and the AFL are concerned
they tend to support this position. Thus, when the Marvel-Schebler Products Divi-
sion was first established in 1950 it manufactured carburetors only. In October of
that year the decision was made to establish the jet engine pump department. Al-
though actual production in the latter did not begin until April 1951, the collective-
bargaining agreement executed by the Company and the AFL on February 26, 1951,
covered both the jet engine and carburetor departments. In November of that same
year the Respondent opened a power brake department and the parties interpreted
4 Prior to March 16, 1954, approximately 41 employees were engaged in the old build-
ings on tooling up and other preparatory work in connection with the manufacture of
the new product.
6 These last 8 classifications, however, utilize skills and operations which, in varying
degrees ale used by 1 or more of the 21 classifications not employed in the production of
transmissions
O The contract provided that old employees who were not members of the AFL 30 days
after the effective date of the agreement would not be requited to become members, but
that all old employees who were members 30 days after the effective date, all new em-
ployees following expiration of a 45-day probationary period, and all old nonmembers
who subsequently joined the AFL, would be requited thereafter to maintain ( or, in the
case of new employees, acquire and maintain), membership in good standing in the AFL
as a condition of continued employment. Further provisions requited that the Company
deduct dues from the v.ages of all those who signed checkoff authorizations. These latter
clauses were likewise applicable to the transmission department
7With the exception of section 15 (b) of the contract which dealt with transfers. This
section specifically provided that it would not be applicable to building B until Septem-
ber 1, 1955.
BORG-WARNER CORPORATION 159
their contract of the preceding February as applicable to the employees hired for this
unit . Similarly, the hydraulic pump department was not established until the
summer of 1952 and did not go into production until the following November.
The parties, however, construed their second contract which they had signed in
February of that year, as covering all the employees subsequently hired for the
hydraulic pump department.
D. Conclusions
The Board has held that a contract executed between an employer and a labor
organization before a new plant or division has commenced operations constitutes
no bar to a representation election sought by a rival union. General Motors Cor-
poration, et al., 111 NLRB 841; Michigan Limestone Division, United States Steel
Corporation, 106 NLRB 1391, footnote 1; Armstrong Cork Company, 106 NLRB
1147, 1148-1149; W. H. Anderson Co., 99 NLRB 820, 821. Further, it has held
the execution of a union-security contract covering such prospective employees to
be an unfair labor practice. Local 404, International Brotherhood of Teamsters,
etc., 100 NLRB 801, 810-811; Chicago Freight Car & Parts Co., 83 NLRB 1163,
1164-1165.
The proviso to Section 8 (a) (3) permits an employer and a labor organization
to execute an agreement which requires membership in the latter, only in the event
" . such labor organization is the representative of the employees as provided
in Section 9 (a), in the appropriate collective bargaining unit covered by such agree-
ment when made." [Emphasis supplied.] The General Counsel and the CIO con-
tend that since there were no production and maintenance employees in building B
on March 16, there were no employees in the new department for the AFL to repre-
sent so that the appropriate unit on that date was limited to those sections of the
plant which were actually in operation at that time. The Respondent and the AFL
rely heavily on William D. Gibson Co., Division of Associated Spring Corporation,
supra, in which the Board upheld the validity of a union-security contract executed
by an employer and an incumbent labor organization during the pendency of a
representation proceeding. In so holding, the Board stated that "stability in industrial
relations . . . requires that continuity in collecive-bargaining agreements be en-
couraged, even though a rival union is seeking to displace an incumbent." Ibid.
Both Respondent and AFL contend that Gibson is applicable to the instant situation
and is authority for upholding the agreement in question. However, as I understand
the decision in that case, it appears that the rule enunciated therein is limited "to
situations where an employer continues normal contractual relations with an incum-
bent union.. . ." General Electric Company, 110 NLRB 1109. [Emphasis supplied.]
That characterization would hardly apply to the AFL with respect to the trans-
mission department at the time in question for the first employees went to work
in building B only on March 31 and production did not begin there until the follow-
ing May. As to a department that was not even staffed on March 16, it does not
appear that the AFL could have been an "incumbent" labor organization. For this
reason , it is my conclusion that the rule announced in Gibson is inapposite here.
This, of course, would not be true if, as the Respondent contends, the transmission
department, instead of being a separate unit within the meaning of Section 9 (a), is,
instead, a mere accretion to the existing plantwide unit. The Budd Company, 107
NLRB 116. In the latter case the Board found that a new operation which increased
the number of employees did not change the character of the unit because the pro-
duction processes were not materially altered, no new skills were introduced, and
less than 1 percent of the job classifications were changed. But that is not the situation
in the instant proceeding, where, in addition to a number of elements which set the
transmission section apart from the rest of the plant such as its separate building and
related factors, a substantial number of distinct and different job classifications were
created for the work in the new department.8 Nor is it material to the issue here that
preceding contracts of the Respondent and AFL were written to cover prospective
employees in new departments that would be set up during the contract term. Al-
8 The AFL urges that the decision in Hess, Goldsmith & Company, Inc., 110 NLRB 1384,
is in point. There the Board held that the mere acquisition of a new plant does not of
itself warrant the establishment of a separate unit. That decision, however, would appear
to he distinguishable from the instant case for in Hess the Board found that the employer
operated the two plants (the new and the old) as a single textile weaving mill, with a
similarity of employee skills, as well as common facilities and products. Apart from be-
ing separated geographically, the two plants involved therein presented none of the
factors which differentiate the transmission department from the rest of the Respondent's
plant in the present case.
Q
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though both of these parties now urge that this established practice tends to support
the validity of the contractual provisions covering the prospective employees in the
transmission department, their argument is without merit. As the Court of Appeals
for the Sixth Circuit has observed, "An employer cannot, by dealing with a union,
constitute it the lawful representative of employees who have not chosen it to repre-
sent them." Ohio Hoist and Mfg. Co. v. N. L. R. B., 217 F. 2d 652, 655 (C. A. 6).
There is much evidence that the transmission department could properly be an
appropriate bargaining unit by itself. Thus, the fact that it was established to manu-
facture a new product and housed in a separate building, as well as the absence of
any bargaining history for the employees therein and the difference in job classifica-
tions referred to above, are all factors which the Board has held to indicate the appro-
priateness of a separate unit. Delta Tank Mfg. Co., 100 NLRB 364, 365; Price Na-
tional Corp., 102 NLRB 1393, 1394-1395; Potlatch Forests, Inc., 94 NLRB 1444,
1445-1448; Armstrong Cork Co., 106 NLRB 1147, 1148-1149; Ware Laboratories,
Inc., 98 NLRB 1141, 1142-1143. On the other hand, the numerous bases for conclud-
ing that the transmission employees have a community of interest with the produc-
tion and maintenance employees in other departments of the plant, such as the cen-
tralized employment office, the common labor relations program, and the similarity
of many job classifications, would tend to support the conclusion that the transmission
department could appropriately be part of the existing plant unit. Delta Tank Mfg.
Co., and cases cited supra. In the foregoing cases, where the factors which would
compel a finding that the new department or operation was appropriately a separate
bargaining unit were in balance with those which would dictate a finding that it was
an accretion to the existing unit, the Board directed Globe-type elections, in order to
"permit employees at the new . operation to decide whether they wish to be
separately represented even though the new operation is in close proximity to the old
one, and has even been partially staffed with old employees." Armstrong Cork Com-
pany (Lancaster Floor Plant), 106 NRLB 1147, at 1149. See also: Columbia Broad-
casting System, Inc., 108 NLRB 1468; Hertner Electric Co., 99 NLRB 567, 569;
Sprague Electric Co., 98 NLRB 533, 535. More significantly, in The Zia Company,
108 NLRB 1134, the Board held that a distinct group of employees, previously outside
the bargaining unit in which they might appropriately be included, should not be
placed in a bargaining unit where they would be a minority without having an oppor-
tunity to express their preference at a Globe election. In so holding the Board de-
clared "adherence to this principle will, in the opinion of the Board, tend to insure
that the wishes of small groups of employees no longer will be thwarted by the
numerical superiority of employee-members of an existing historical unit from which
the former have been excluded. . From these cases it is my conclusion that
here, even after building B was staffed, the unit question could only be decided by a
Board-directed poll of the employees as to the bargaining group which they preferred.
Until such an election was held and the organizational preferences of the employees
therein determined, the Respondent would not be free to contract with a labor organi-
zation as to the transmission department because only then would it be clear as to
what constituted the appropriate collective-bargaining unit.
Section 7 of the Act sets forth as a basic statutory policy that employees be afforded
the "right . . . to bargain collectively through representatives of their own choos-
ing . . . and to . . . refrain from . . . such activities." In accord with this pro-
vision the Board has held that employees in a distinct new group must be afforded
an opportunity to decide by the vote of their own separate majority whether they
care to become part of the established unit. The Zia Company, supra. Further, the
Board has held that it is a violation of the Act for an employer and a labor organiza-
tion to blanket them into the existing unit by the terms of a collective-bargaining
agreement executed before the employees in the new plant or operation have had an
opportunity to express their unit preference. Chicago Freight Car & Parts Co., 83
NLRB 1163, 1164-1165; Local 404, International Brotherhood of Teamsters, etc.,
100 NLRB 801, 810-811. Accordingly, since the transmission department in the
instant case could appropriately be treated as a separate unit or part of the existing
unit but only after the employees therein indicated their preference in this regard, II
conclude and find that it was a violation of Section 8 (a) (1) of the Act for Respond-
ent and the AFL to extend the contract to building B prior to any such manifestation
of the employees' desires and certainly on March 16, when none of the employees
had even been hired for the new department. Ibid.9
9In the Chicago Freight Car case where there were fewer employees at the new plant
than there were at the old, the Board disapproved of the inclusion of the former in an
overall bargaining group without affording the minority an opportunity to indicate their
preference. Counsel for the Respondent, in oral argument and in his brief, represents
BORG-WARNER CORPORATION 161
The Board dismissed an 8 (a ) (2) allegation in the Chicago Freight Car case be-
cause there was no rival union on the scene at the time the employer signed the
agreement in question. That is not the situation here. On March 11, the CIO filed
a charge against the Respondent alleging that it was unlawfully assisting the AFL
by recognizing the latter as a bargaining agent for employees to be hired in building
B and by granting advance seniority therein to members of the AFL, as well as other
favorable terms. The Respondent was aware of these charges at the time it signed
the agreement with the AFL on March 16. The grant of exclusive recognition as
bargaining agent for the prospective employees of the transmission department was
in itself an act of assistance to the AFL; coupled with the compulsory union member-
ship provisions, the agreement gave the AFL a decided advantage over any rival not
similarly favored. Consequently, it is my conclusion, and I find, that by negotiating
those provisions relating to building B and subsequently applying them to the em-
ployees therein, without having satisfied the conditions set forth in Section 8 (a) (3)
(i) of the Act, the Respondent contributed support to the AFL and thereby interfered
with and coerced the employees in the exercise of their organizational rights. In
so doing the Company violated Section 8 (a) (2) of the Act as well as 8 (a) (1).
Harrison Sheet Steel Co. v. N. L. R. B., 194 F. 2d 407, 410 (C. A. 7); and Sunbeam
Corp., 99 NLRB 546, 550-554.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action necessary to effectuate the policies of the Act.
Having found that the agreement between the Respondent and the AFL dated
March 16, 1954, was invalid in its application to the transmission department be-
cause the unit therein provided was not then appropriate, and in order to insure to
the employees of the transmission department the full and free exercise of the rights
guaranteed in Section 7 of the Act, I shall recommend that the Respondent withdraw
and withhold recognition from the AFL as the representative of the employees in said
department for the purpose of collective bargaining until such time as the AFL may
be certified as their representative by the Board. I shall also recommend that the
Respondent cease and desist from giving effect to the agreement of March 16, 1954,
with the AFL, insofar as it applies to the aforesaid department, as well as to any
extension, renewal, modification, or supplement thereof, or to any superseding con-
tract with that labor organization or any affiliate thereof, until such time as that
organization or an affiliate shall have been certified by the Board as the representative
of the employees of the transmission department. Nothing herein, however, shall
be deemed to require the Respondent to vary those wage, hour, seniority, and other
substantive features of its relations with the employees of the transmission department
as the Respondent may have established in performance of the agreement of March
16, 1954, or said contract as extended, renewed, modified, supplemented, or super-
seded.
Having found that the Respondent violated Section 8 (a) (2) and (1) of the Act by
coercing the employees of the transmission department to become and remain mem-
bers of the AFL, thereby compelling the payment of dues to that organization and,
that, ultimately, the number of employees in building B will exceed those in the rest of
the plant From this he argues that the Board need not be concerned, as it was in Chicago
Freight Car, that in the future the new department will he dominated by the employees
in the rest of the plant Counsel's representation was not developed at the hearing, for
the record indicates that at all times material the transmission employees were a minority
group. On the other hand, even assuming that the Respondent plans to enlarge its trans-
mission department to the point where the employees therein eventually become the ma-
jority group, it would appear that the Boaid ruling set forth in the above case and Zia
should apply to the situation presented here with even greater force. To hold otherwise
would be to deny to the employees of building B an opportunity to express their repre-
sentation preferences for the entire term of the 2-year contract with the AFL and dur-
ing that period subject a prospective, or actual, majority to the wishes of a minority.
162 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in fact, checking off such dues from the wages of all who signed authorizations,
I shall recommend that Respondent make whole to such employees the amounts
deducted from their wages for that purpose from the dates when such deductions
were first made, as shown by Respondent's record, to the date of compliance with
the recommendations herein.
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The AFL and the CIO are labor organizations within the meaning of the Act.
2. By entering into the agreement of March 16, 1954, and by requiring the em- -
ployees of the transmission department to become members of the AFL, the Re-
spondent has interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act and has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By engaging in the conduct described in the foregoing paragraph the Respondent
has also rendered unlawful assistance to the AFL and thereby violated Section 8 (a)
(2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Sunnyland Packing Company and Sunnyland Poultry Company I
and United Packinghouse Workers of America, CIO, Petitioner.
Case No. 10RC-3006. July 13,1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Frank E. Hamilton, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. Sunnyland Packing Company, herein called Packing, is engaged
in processing and selling meat and meat products at Thomasville,
Georgia. Sunnyland Poultry Company, herein called Poultry, is en-
gaged in processing and selling chickens in an adjoining building lo-
cated within the same fenced area. The employees of the two Com-
panies use the same entrance and cafeteria, and the gate watchmen of
Packing perform protection duties for both Companies. All of the
chickens processed by Poultry are purchased by Packing. Packing
prepares the payroll for Poultry, which is billed for such service. Al-
though each Company is a separate legal entity with separate books,
hiring, and supervision, they have in common 2 officers, 1 of whom,
the president, is the final authority on: overall labor relations policy.
In these circumstances, and upon the record, we find that Packing and
Poultry constitute a single integrated enterprise and employer?
I Subsequent to the hearing , the Petitioner moved to amend the name of the Employer
to the above form. Absent objection, we grant the motion.
2 Sanitary Mattress Company, Rest Line of California, Inc., 109 NLRB 1010, at' 1011 ;
Marvel Roofing Products Incorporated, of at., 108 NLRB 292, at 293.
113 NLRB No.12.