Borg-Warner Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1955

113 N.L.R.B. 1288 (N.L.R.B. 1955)

1288 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rapt his work at an inopportune moment and assuming that Haley was mistaken
in believing that there was time to do the cleaning without interfering with product
tion, Smith's reliance on his own judgment rather than that of his responsible superior
con'stitutes no'excuse for his twice refusing to obey an order. An employee, no more
than the Board, can dictate to an employer how he should run his business.
Likewise, ,the evidence of Smith's waywardness during his career with the Company
before April 17, apart from the two incidents resulting in warnings, is of no great
relevancy. There seems to be no contention that discharge was due to a culmina-
tion of events the camel's back of which was broken when-Smith refused to clean
the racks. It is unnecessary to consider whether the Company was over-tolerant
in not having penalized him with discharge long before it did. It would be vainly
laborious to conjecture whether Respondent's trial strategy in presenting this evidence
was adopted as a collateral attempt to piece out its defense by prejudicing someone
against the complainant.
In .either event, I do not feel that the emphasis placed upon Respondent's dis-
pleasure with Smith's past conduct supports the theory, urged by the General
Counsel, that Respondent has proffered varied and inconsistent reasons for the
discharge and hence it should be deemed that the grounds advanced are- apocryphal.
Nor do I find persuasive as leading toward the conclusion that Smith was fobbed
off in violation of the Act, the argument of ground shifting from the reason of
refusal to obey an order asserted before the hearing to the reasons of refusal to
obey and obscenity utterance advanced during the hearing. The two are so inter-
locked that an attempted disentanglement would be mere casuistry. Utterance
of the abominable obscenity, infinitely more offensive and indecent than the name
applied to a supervisor, which the court in Boeing-Airplane Co. v. N. L. R. B.9
agreed was justification for dismissal, only serves to intensify the degree of Smith's
inexcusable rebelliousness.
I do not doubt that, Respondent was relieved to see Smith go. And I can readily
believe that it gained comfort through the excision of what it felt was a dolorous
thorn-in-side inflicted in the brush with unionism. But this is not to say that the
General Counsel has satisfied me, as to prevail he must, that Smith's union activity
was the reason for his discharge. On the contrary, upon a preponderance of the
evidence, it is clear to me that this insubordinate and impertinent employee was
discharged for cause unrelated to the Company's opposition to his and the Union's
effort to organize its employees.
Ever to claim full mastery of the truth is audacious. Yet here it may not be
presumptuous to say I do not feel I have wholly missed it.
On the record as a whole, I shall recommend dismissal of the allegation of the
complaint that Respondent discriminated,against Raymond L. Smith in violation of
Section 8 (a) (3) of the Act.
CONCLUSIONS OF LAW
1. The operations of Lily-Tulip Cup Corporation constitute and affect trade,
traffic, and commerce among the several States, within the meaning of Section 2 (5)
of the Act.'
2. International Union, United Automobile Workers of America, AFL, is a labor-
organization within the meaning of Section 2 (5) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act.
[Recommendations omitted from publication.]
9216 F.'2d 369 (C. A. 9) -the expression was "a damned liar."
Wooster Division 'of Borg-Warner Corporation -and International
Union, United Automobile,, Aircraft & Agricultural Implement
Workers of America, CIO. Case No. 8-CA-830. August 6,1955
DECISION AND ORDER
On September 15, 1954, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the.
113 NLRB No. 120. - -
WOOSTER DIVISION, OF BORG-WARNER. CORPORATION 1289
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices- and recommended that those allegations of the complaint be dis-
missed. Thereafter, the Respondent filed exceptions to the Intermedi-
ate Report and a supporting brief, and the General Counsel filed a
brief in support of the *Intermediate Report. At the request of the
Respondent, oral argument was heard before the Board on June 21,
1955. The Respondent, the General Counsel, and the Charging Union
were represented by counsel and participated in the argument.
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 Intermedi-
ate Report, the exceptions, briefs, and arguments of the parties, and
the entire record in the case, and hereby adopts the conclusions and
recommendations of the Trial Examiner, with the following excep-
tions, modifications, and additions as noted below.
1. We agree with the Trial Examiner's finding that the Respond-
ent's- recognition and employee-ballot proposals were not required
bargainable matters and that by insisting on their inclusion in the
agreement, Respondent thereby failed to bargain with the Union, in
violation of Section 8 (a) (5) of the Act.
- It is undisputed that International Union, United Automobile, Air-
craft & Agricultural Implement Workers of America, CIO, herein re-
ferred to as the Union, was certified by the Board on December 8,
1952, as the bargaining representative in a unit of production and
maintenance employees at the Respondent's newly established Woos-
ter, Ohio, plant. As more fully discussed in the Intermediate Re-
port,-on January 23, 1953, the Union submitted its contract proposal.
The • proposed contract provided that both the International and its
Local Union No. 1239, which had been chartered since the Union's
certification, be recognized as the exclusive bargaining agent for the
employees in ' the appropriate unit. The Union also proposed no
strike and union-shop clauses.
On February 9, 1953, the Respondent submitted the noneconomic
part of its counterproposal. As to the items here in dispute, the Re-
spondent's proposals provided in substance that the Respondent rec-
ognizes "Local Union No. 1239, affiliated with the International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America (UAW-CIO) " as the exclusive bargaining agent
for the employees in the unit, and with respect to the employee-ballot
proposal, they provided that on disputed issues not subject to a con-
tractual.provision for arbitration, no strike could be called unless a
1290 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
majority of the employees in the bargaining unit voted by secret bal-
lot whether to accept or reject the Respondent's "last" offer or any suc-
ceeding offer. The employee-ballot clause further specified that the
question of the termination of the agreement shall be one of the issues
subject to the secret ballot.
Upon the submission of the counterproposals, Pappin, International
representative and chief negotiator of the Union, told the Respondent's
representatives that ,the recognition proposal was contrary to the
Board's certification and the Union's constitution and that the Union
would not "under any circumstances" accept the employee-ballot pro-
posal. The Respondent's negotiators took the position that, as plant,
problems were local, they should be settled on a local basis with local
people , and., that therefore emphasis should be on dealing with local
representatives of the Union. With regard to the employee-ballot
proposal, the Respondent stated that it was a means of finding out
whether management was doing a good job, for if a majority of the
employees in the unit opposed any of the Respondent's proposals, then
it was an indication that perhaps management ought to reexamine its,
position, but if a majority did not oppose, then it was a good indica-
tion that management was doing a good job.
In the ensuing meetings neither party retreated from its position,
although it appears that at one stage in the negotiations the Union
proposed that the 'recognition clause read : "International Union,
United Automobile, Aircraft & Agricultural Implement Workers,
Local Union No. 1239" and the Respondent countered with the proposal
that it read : "Local Union No. 1239, International Union, United
Automobile, Aircraft & Agricultural Implement Workers." Adams,
Respondent's principal negotiator, rejected the Union's proposal be-
cause he believed that the Union's proposal contemplated recogni-
tion of the International, whereas, he stated, it was the Company's
thought that the agreement should be with the Local. Blythe, presi-
dent of the Wooster Division, testified that the Respondent's position
at all times during the negotiations was that the agreement should be
only with the Local, and that at no time did the Respondent' s posi-
tion change in that respect.
Negotiations were only temporarily halted by the strike, which the
Union called on March 20, with respect to certain economic demands
not here involved. But the meetings, which resumed on March 31,
did not bring any change in the positions of the parties on either the
recognition or employee-ballot proposal. On the contrary, at the
following meeting on April 17 the Respondent made its employee-
ballot proposal more embracing by adding the questions of the amend-
ment and modification of the agreement as matters which were sub-
ject to the employee ballot. At the next and final meeting on April
21 between the Union and the Respondent, Pappin asked Adams if
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1291
the Respondent would agree to make the International a party to the
agreement and eliminate its position with respect to nonunion em-
ployees if the Union were to concede on all noneconomic proposals
.of the Respondent. Adams replied that the Union should take the
proposals as is and added that he considered them fair. Abandon-
ing further negotiations with the Respondent, the Union on April
25 recommended to the president of the Local that the strikers return
to work. On May 2, a settlement agreement was executed between
local representatives and the Respondent, after the Union's execu-
tive board had apparently approved such settlement agreement. This
agreement was thereafter approved by local membership, and on May
5 a collective-bargaining agreement was entered into between the Local
and the Respondent. The agreement recognized the Local, as the
exclusive bargaining agent and incorporated the disputed employee-
ballot proposal. The Union filed its initial charge on April 7, 1953.
It is abundantly clear to us from the record as a whole that the
Respondent was not merely proposing its recognition and employee-
ballot clauses as matters which the Union could voluntarily accept
or reject. On the contrary, it' appears that the Respondent was
adamantly insisting on the inclusion of these two clauses as a condi-
tion precedent to the execution of any agreement. This conclusion is
well supported by the fact that, notwithstanding the Union's rejec-
tion of these clauses at the outset, the Respondent nevertheless utilized
the bargaining process to require continued bargaining and capitula-
tion as the price for the contract eventually made with the Local.
In this posture of the facts, we, unlike our dissenting colleague, be-
lieve that the Respondent's liability under Section 8 (a) (5) turns not
upon its good faith, but rather upon the legal question of whether the
proposals are obligatory subjects of collective bargaining. For, if the
proposals are permissible statutory demands, the Respondent was
privileged to adamantly insist upon bargaining as to them and the
Union could not refuse to so bargain; on the other hand, if they were
not, the converse is true. While, as indicated below, we respectfully
disagree with the substantive resolution of a similar legal issue by one
court of appeals in the Allis-Chalmers case,' upon which the dissent
relies, it is noted that the court there applied the same legal principle
as we do here. Contrary to the interpretation of our dissenting col-
league, we do not hold that the Respondent "had no right to put these
proposals on the bargaining table." On the contrary, we recognize
that the Respondent could make these proposals or any other proposal
not in conflict with the provisions of the Act. However, we are here
concerned not with what the-parties might do by mutual consent be-
yond the obligatory mandate of the statute, but with what the obliga-
tion to bargain under the Act requires the parties to do. Of course,
1 Allis -Chalmers Manufacturing Company v . N. L. R. B., 213 F . 2d 374 (C. A. 7).
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that obligation encompasses good-faith bargaining, but only with re-
spect to wages, hours, and conditions of employment, as enumerated
in the Act.' Thus, a union might propose that an employer reduce the
salaries of its officers as a means of obtaining wage increases for em=
ployees, and the employer may voluntarily agree, but it does not follow
that the employer is required to bargain about such a matter. Like-
wise, while a union might agree to'any of the following proposals, it
has been, held that an employer cannot require bargaining by a union
with respect to 'organizing competitors,3 posting of performance
bonds,4 complying with State licensing requirements,5 or accepting
oral 6 or members-only contracts." To hold, as our dissenting colleague
suggests, that good faith is the only basis for determining whether or
not a union or employer has fulfilled its obligation to bargain under
Section 8. (a) (5) of the Act, means, in effect, an amendment to, the,
Act's statement of the required subject of collective bargaining and
that they are required under the Act to bargain about matters wholly
unrelated to wages, hours, and other conditions of employment.
The Recognition Clause
Contrary to the implication of our dissenting colleague, the dispute
over the Respondent's proposed recognition clause was not one of se-
mantics but one of substance. The Respondent recognized that the
Local and the International were, in fact, separate entities, but nev-
ertheless insisted upon executing a contract with the Local to the ex-
clusion of the International, the duly certified representative. It is
well settled by numerous Board and court authorities that under the
Act the employer is obligated upon request to accord exclusive and
unequivocal recognition to the statutory representative, to bargain
with it, and to incorporate any agreement reached in a written con-
tract signed by both parties; and that the fulfillment of this duty is
not a subject of obligatory bargaining.8 In rejecting this settled law,
' To support the good-faith test believed by the dissenter to be here controlling , he relies
on the opinion of the Supreme Court in N. L. R B. v. American National Insurance Co ,
343 U. S. 395. However, we do not view that case as apposite The clause in that case
was a statutory bargaining proposal as it involved wages and hours and therefore under
the holding of that case , the legality of the employer' s insistence upon it could be resolved
only by application of the good-faith standard.
' N. L. R. B v. George P. Pulling & Son Co., 119 F. 2d 32 (C. A. 3).
4 Jasper Blackburn Products Corp., 21 NLRB 1240.
'N. L. R. B. v. Dalton Telephone Company, 187 F . 2d 811 ('C: A. 3), cert. denied 342
U. S. 824.
6 H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514.
7McQuay-Norris Manufacturing Co. v. N. L. R. B., 116 F. 2d 748 ( C. A. 7), cert . denied
313 U. S. 565.
' See McQuay-Norris Manufacturing Co., supra , where the Board stated "... the ques-
tion of recognition has long possessed a peculiar significance in labor relations. And we
think it was the intention of the Act to eliminate controversy over issues of this sort by
requiring employers , as part of the 'practice and procedure of' collective bargaining,' to
recognize and deal with the majority representative as exclusive bargaining agent. This
purpose can be achieved only if such recognition is fully and frankly given rather than half
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1293
our dissenting colleague is giving controlling significance to the fact
that the Respondent, during the negotiations, bargained with the
International's representative, and that the recognition clause origi-
nally proposed by the International included the name of the Local as
a separate party, whereas the certification did not do so. However, in
so, doing, he overlooks that part of the bargaining obligation which
requires an employer to recognize and contract with the -named certi-
3fied representative. It is abundantly clear on this record, as stated
above, that the Respondent adamantly refused to sign any agreement
`which even included the certified representative as a party thereto.
Nor did the fact that the International's proposal included the Local
as a coparty to the contract, a not uncommon practice, make the subject
of recognition a matter of obligatory bargaining. Under applicable
legal principles, the Respondent could have accepted the variance in
the certification by the International, but was not required under the
Act to do so. Indeed, the Respondent had the right to refuse to con-
tract with the Local as a corepresentative. But the record shows 'that
the International's initial request for inclusion of the Local as a co-
party to the agreement was not an issue in the case at all. On the con-
trary, it was the Respondent's insistence upon making the Local not
only a party to the agreement but, in complete derogation of the cer-
tificate, the only party empowered to represent the employees. The
designation of representatives pursuant to a Board election is the
function of this Board. This Agency, accordingly, designated and
certified the bargaining agent in this case. A demand that the legal
status thus obtained be bargained away cannot be countenanced if the
purposes of the statute are to be realized. What has been won through
the Board's election processes need not be rewon at the bargaining
table.
Employee-Ballot Proposal
Under the proposal of the Respondent, the Union was prohibited
from calling a strike or from amending, modifying, or terminating the
agreement, unless its action in so doing, in effect, had the approval of
a majority of both union and nonunion employees. The ballot pro-
cedure required a secret ballot among the employees on whether to
accept or reject the Respondent's last offer and on whether the contract
should be amended, modified, or terminated. The record shows, as the
Trial Examiner found, that this proposal was adamantly insisted upon
because of the Respondent's expressed concern that the Union might
not truly represent the wishes of a majority of the employees. Quite
withheld." See also N L. R B. v. Louisville Refining Co, 102 F 2d 678 (C A. 6) ;
N. L. R. B v. Griswold Mfg. Co., 106 F 2d 713 (C. A. 3) ; Aldora Mills, 79 NLRB 1, enfd.
180 F. 2d 580 ( C A. 5) ; Simplicity Pattern Company , Inc., 102 NLRB 1278; Taormina
Company, 94 NLRB 884, Standard Generator Service Company of Missouri., Inc., 90
NLRB 790.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apart from the Respondent's good faith in seeking its objective, we do
not believe that the subject of protecting employees from the specula-
tive arbitrariness of their duly selected exclusive bargaining represen-
tative is an obligatory subject of collective bargaining e
It appears self-evident that a representative system necessarily in-
volves trusting the agent with discretion not subject, to review by those
it represents as to each exercise thereof, particularly at the instance
of an outside party. It is the pattern traditionally followed in the
labor movement in this country and the concept embodied in the Act.
As the Supreme Court-stated, the Act, "has been considered to absorb
and give statutory approval to the philosophy of bargaining as worked
out in the labor movement in the United States." 10 Under the practice
of collective bargaining as thus developed, it is customary to leave the
decision as to demands to be made upon the employer, the sanction
to be resorted to in support of the demands, and the content of the con-
tract ultimately entered into, up to the majority representative leaving
to internal procedures of the union the extent to which these may be
ratified by the membership of the union or employees generally.ll The
legislative history of the Act as it was originally enacted makes it
abundantly clear that Congress was fully aware of all the implications
arising out of writing the majority rule principle into the Act, includ-
ing the fact that those in the minority were not to have an effective
voice in the collective-bargaining negotiations. Indeed, this view of
the intendment of the Act is clearly supported by the Supreme Court's
opinion in the Brooks case 12 where it is stated that "in placing a non-
consenting minority under the bargaining responsibility of an agency
selected by a majority of the workers, Congress has discarded the
common law doctrine of agency."
With due deference to the Court of Appeals for the Seventh Circuit,
we are constrained to disagree with its holding in the Allis-Chalmers
case 1$ that strike-ballot clauses of the type here involved are included
within the- statutory definition of wages, hours, and other terms and
conditions of employment. Concededly, an absolute prohibition of
strikes is an obligatory subject of collective bargaining; and there is
9 Cf. Ray Brooks v N. L. R. B., 348 U. S 96.
'IN L. R B. v American National Insurance Co , 343 U S 395, 408, quoting with ap,
proval from Telegraphers v. Railroad Expi ess Agency, 321 U. S. 343, 346
11 See N L. R B v. Corsicana Cotton Mills; 178 F. 2d 344, 346-347 (C. A. 5). In that
case, the employer sought the inclusion in the collective -bargaining agreement of a clause
providing that "all employees of the Company whether they belong to the Union or not,
shall be given the right to receive notices of union meetings 24 hours in advance and to
attend such union meetings and to vote , and no decision of the Union as bargaining agent
shall be determined except upon a majority vote of all the employees who attend such a
meeting " The court held it outside the power of the company in that case to insist upon
consideration of such a provision, stating "We are not in doubt that Roe [the company
negotiator ] was mistaken in his view that lie had a right to insert in the recognition
paragraph the nonunion voting clause "
13 Ray Brooks, v. N. L. R. B , supra.
13 Allis-Chalmers Manufacturing Company v N L R. B , 213 F. 2d 374.
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1295
some appeal in the argument that a strike-ballot proposal should also
be an obligatory subject, as it is less restrictive than a no-strike clause.
However, as our dissenting colleague implicitly concedes, there is,
in our opinion,' a basic difference in the nature of the two types of
clauses, which removes the strike-ballot clause from the ambit of com-
pulsory bargaining.
A no-strike clause involves the employees' right to strike. By vir-
tue of the designation of a statutory bargaining representative, the ex-
ercise of this right is entrusted to the representative which has the
power to waive it in a contract as a quid pro quo and in the interest of
industrial harmony. However, the strike-ballot clause here, while
incidentally limiting the individual's right to strike, is primarily con-
cerned with the mechanics of testing the statutory representative's
power to call a strike or to terminate or, amend the contract during its
term-a purely internal matter. unrelated to any condition of employ-
ment. Indeed, the strike-ballot clause is in essence a procedure de-
signed to force all employees in the unit, as individuals, to pass upon
the Respondent's last offer. `In our opinion, the requirement that
employees be given an opportunity to vote on the Respondent's last
offer or to terminate or amend the contract, is simply an attempt to
resolve economic differences at the bargaining table between an em-
ployer and the statutory agent by dealing with the employees as in-
dividuals. In principle, there is little, if any, difference between an
employer taking individual proposals directly to the employees and,
an employer requiring that the bargaining representative obtain ap-
proval or disapproval of any economic proposal as a condition prece-
dent to the representative's exercise of statutory powers. Either situ-
ation is in derogation of the status of the statutory representative and
thus violates the exclusive representation concept embodied in the
Act. Indeed, insistence on a strike ballot clause means only that the
union must dilute its authority, diffuse its responsibility, and ultimate-
ly dissipate its strength. This clearly is not the purview or purpose
of the,collective bargaining required by the Act. It is thus apparent
that, contrary to our dissenting colleague's statement, we do not predi-
cate our conclusion on the theory that the continued representative
status of the Union might be lost by a majority vote on any issue bal-
loted upon, but rather on the fact that the requirement of a poll among
the employees consitutes a subversion, of the collective-bargaining
process . It is well established that where, as here, the employees have
selected a statutory representative, an employer may not bypass or
undercut such representative by attempting to deal directly or indi-
rectly with the employees. 14
14 Menlo Photo Supply Corp. v. N. L. R. B , 321 U. S. 678, 683-4; May Dept. Stores Co. v.
N. L. R. B., 326 U. S. 376, 383-4.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We accordingly find, as did the Trial Examiner, that'the Respond-
ent by adamantly insisting upon' the inclusion of its proposed -recog-
nition and employees-vote clauses, as a condition to the execution of
any contract, refused to bargain in violation of Section 8 (a) (5) of
the Act.
2. We agree with the Trial Examiner that the Respondent inter=
fered with, restrained, and coerced employees in violation of Section
8 (a) (1) of the Act by soliciting employees through newspaper and
radio advertising to oppose the Union's "professionals" and to return
to work, thereby tending to undermine the Union; by personally
soliciting the Local's vice president to return to work and urging him
to "forget the International"; and in such pattern of illegal opposi-
tion to the Act, by promising and providing automobile transporta-
tion to the plant as a means of inducing the strikers to abandon the
Union and return to work. Although the Trial Examiner evaluated
the foregoing conduct against a background of an unfair labor 'prac-
tice strike, a finding which the Board does not adopt, -we, neverthe-
less, consider that such conduct is violative of Section 8 (a) (1) be-
cause it was reasonably calculated to undermine the Union and to
demonstrate to the employees that the Respondent sought to bargain
with other than the certified Union.15
We also agree with the Trial Examiner that the Respondent vio-
lated Section 8 (a) (1) by in striking employees through the
medium of newspaper advertisement and individual letters that it
would, and did, regard them as having quit their jobs in'the event of
their failure to return to work by a specified date, thereby attempt-
ing to cause them by unlawful threats of discharge to abandon the
strike.16
3. The Trial Examiner found that the strike was an unfair labor
practice strike based on the Respondent's refusal to bargain. Subse-
quent findings: of 8 (a:) (3) violations for failure to reinstate were
predicated' on this -finding of an unfair labor. practice strike. We; do
not adopt either of these findings. In our opinion, the record does
not establish by a preponderance of evidence that the strike was caused
by the Respondent's insistence on contract proposals found violative
of Section 8 (a) (5) rather than by the failure of the parties to reach
agreement on the economic issues in dispute. The record fails to
establish that the economic strikers were discriminated against with
respect to their reinstatement. Indeed, substantially all of the strik-
ing employees were eventually reinstated in accordance with a detailed
plan worked out between the Respondent and the Local.
'T' The Texas Company, 93 NLRB 1358.
10 Kerrigan Iron Works,,Inc., 108 NLRB 933.
( WOOSTER DIVISION OF BORG-WARNER, CORPORATION 1297
The Remedy ,
• Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action which' we deem necessary to effectuate
-the policies of the Act.
We have found, in agreement with the Trial Examiner, that the Re-
spondent has refused to bargain collectively with the Union as the
exclusive representative of the employees in the appropriate bargain-
ing unit by insisting on bargaining with respect to such matters that
were not appropriate subjects for bargaining. We deem it necessary,
as the only means by which a refusal to bargain can be remedied, that
the Respondent be required, upon request, to bargain collectively with
the Union. 'I
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Wooster• Divi-
sion of Borg-Warner Corporation, Wooster, Ohio, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with'the International Union,
United Automobile, Aircraft & Agricultural Implement Workers of
America, CIO, as the exclusive representative of all its employees in
the appropriate unit with respect to rates of pay, wages, hours of em-
ployment, or. other conditions of employment.
(b) Insisting in collective-bargaining negotiations with the Union,
upon the recognition of a union other than the statutory representative
and employee ballot proposals, or any other proposals not involving
conditions of employment. _
•(c) Soliciting its employees in a manner calculated to undermine
the Union as the employees' collective-bargaining representative and
threatening its employees with loss of employment unless they aban-
don the strike.
(d) In any other manner interfering with, restraining, or coercing
its employees .in the exercise of their rights to self-organization, to
form labor, organizations, to join or assist International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America,
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other mu-
tual aid'or protection, or to refrain from any or all of such activities,
:except to the extent that such right may be affected by an agreement
17 Franks Bros. Company v. N. L. R. B., 321 U. S. 702.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with International Union,
United Automobile, Aircraft & Agricultural Implement Workers of
America, CIO, as the exclusive representative of the employees in the
bargaining unit with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment, and, if an understanding
is reached, embody such understanding in a signed agreement.
(b) Post at its plant in Wooster, Ohio, copies of the notice attached
hereto and marked "Appendix A." 18 Copies of said notice, to be fur-
nished by the Regional Director for the Eighth Region , shall, after
being duly signed by a representative of the Respondent, be posted by
it immediately upon receipt thereof, and maintained by it for sixty
(60) consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent refused to reinstate
any employee in violation of Section 8 (a) (3) and (1),of the Act.
CHAIRMAN FARMER, dissenting :
The issue in this case is a close and difficult one, and I would be
hesitant to disagree with the majority opinion were it not for the im-
portance of the question raised by this case in the administration of
the statute. I feel that I would be remiss in my duty if I did not re-
cord my contrary view. This case gives me concern as well because
I am convinced that it has been presented to the Board on an untena-
ble theory which had already been repudiated by the Supreme Court
before the complaint was issued. Since the Board does not frame the
issues, we must decide the case on the pleadings and the record coming
before us; but I cannot help but say that my appraisal of the case
might have been different had the General Counsel, followed the pro-
nouncement of the Supreme Court in the American National Ins+ar-
ance 19 case and charged the Respondent with bad faith in the bar-
gaining negotiations. But, the General Counsel has specifically dis-
claimed any.allegation of bad faith, and this precludes me from re-
viewing the bargaining in this case in terms of this statutory require-
ment.
19 In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
19 N. L. R. B. v. American National Insurance Co., 343 U. S. 395.
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1299
In order to sustain this complaint and find the Respondent guilty of
an unlawful refusal to bargain, I would have to find, as the majority
appears to do, that it is a per se violation of the Act for one of the
parties to collective-bargaining negotiations seriously to propose that
certain provisions be mutually agreed upon and incorporated in their
voluntary agreement, even though it is conceded that the proposals are
made in good faith and that the parties could agree to make them a
part of their contract without violating this or any other statute. I
do not believe that we have the statutory authority to make such a
finding with respect to the proposals here in question.
I see no need to review the bargaining negotiations in detail; there
is really no dispute about them. I do not, however, agree with the
gloss which the Trial Examiner puts on the record. Nor for that mat-
ter does the majority, for they have rejected his finding that the strike
which occurred during the course of the bargaining negotiations was
caused by the Respondent's "insistence to the point of impasse" on the
two contract proposals which are now in dispute. I am in complete
agreement with my majority colleagues that the strike was called by
the Union to enforce its economic demands and to attempt to attain its
declared objective, consistently adhered to throughout the negotiations,
of securing at the Wooster plant the same contract which it had ne-
gotiated at the Pesco plant of the Respondent.
The two proposals which the majority finds the Respondent had no
right to inject seriously into the bargaining related to (1) how one of
the contracting parties, the Union, should be described in the preamble
to the contract, and (2) the conditions under which the Union might
strike over disputes arising during the term of the agreement , as well as
disputes over contract termination or modification.
On the first, the Union initially proposed that'the contracting union
be described as "International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America and its Local Union No.
1239 UAW-CIO." The Respondent suggested "Local, Union No. 1239,
affiliated with the International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America (UAW-CIO)."
After considerable bargaining, the point was ultimately reached where
the Union proposed "International Union, United Automobile, Air-
craft and Agricultural Implement Workers, Local Union No. 1239"
and the Respondent "Local Union No. 1239, International Union,
United Automobile, Aircraft and Agricultural Implement Workers."
In other words, the Union wanted the Local's name to follow that of the
International and the Respondent desired the Local' s name to precede
the International's. The record does not disclose, and the parties at
the oral-argument before the Board could furnish no clear explanation
of the legal significance, vis-a-vis, the respective rights and obligations
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the parties to the proposed contract, "of this disagreement on con-
tract terminology.
The second proposal of the .Respondent was that the Union should,
not engage in a strike over issues which were arbitrable, and that strikes
over other issues would be permissible only if the majority of the em-
ployees in the bargaining unit authorized strike action in a secret ballot
election. This proposal was made by the Respondent in response to a.
union proposal of a no-strike clause, which the General Counsel con-
ceded at the oral argument was more restrictive than the company pro-
posal which the General Counsel contends was unlawful.
The General Counsel has presented the case to the Board on the
theory that Respondent had the right -to make these two proposals but
could not insist on them, to the point of impasse, although in good
faith. The Trial Examiner accepted this theory, and found that there
was in fact insistence to the point of impasse. The majority of the
Board does not, as I understand their position, agree with the General
Counsel and the Trial Examiner either on the theory or the facts.
Rather, the majority finds, contrary to the Trial Examiner, that the
Respondent's "insistence" on the two proposals did not bring about an
impasse in the bargaining and did not cause the strike. The majority,
nevertheless, finds that the Respondent breached its obligation to bar-
gain by injecting and keeping these two issues in the bargaining
negotiations after the Union had voiced its opposition to them.
This, I think, is tantamount to holding that the Respondent had'no
right to put these proposals on the bargaining table, a position not
espoused by the General Counsel or adopted by the Trial Examiner. I
say this because it seems obvious to me that it is a meaningless play 'on'
words to say that some proposals are "bargainable" but must'be with-
drawn the moment the other party indicates opposition to them. For,
if there are certain proposals which the opposite party can brush off the.
bargaining table at will, it would be an idle gesture to bring them up,
at all. To say that a party has no right to "bargain" about a bargain-
able issue is a contradiction in terms which adds confusion rather'
than clarity to the ground rules of collective bargaining. It would be
better to rule that neither party has the right to inject any issue 'in
bargaining negotiations except those issues which the majority of the
Board judges to be appropriate for proposing and pursuing to the point
of "insistence," whatever may be the meaning of that rather imprecise
term. There would still be continuing uncertainty as to what issues
it was safe to propose, but at least such a standard would make it un-
necessary for the Board to attempt to determine the precise point at
which adherence to a second-class bargaining issue becomes unlawful
"insistence." But the majority has not taken this logical step, and, in-
deed, it would be difficult to rationalize a proscription against a good-
faith proposal of a lawful contract clause. Still, I think it is fair to,
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1301
observe that the practical effect of the majority decision is to establish
two types bf "bargainable" issues and to remove one of 'them from the
area of give-and-take bargaining.
The vice which the majority appears to see in the Respondent's two
proposals is that they *derogate from the status of the Union as the
certified exclusive representative of the employees. The proposal
relating to the description of the Union, the majority views as a
refusal to recognize and bargain with the International Union as op-
posed to its local organization. But the most that I can make out of
Respondent's proposal on this point is that Respondent wished to have
the Local as the primary party to the agreement but was willing to
recognize in the agreement the identification of the Local with the
International. I cannot regard the disagreement of the parties on
this point as fundamental. We can take notice of the fact that unions,
including certified unions, are described in various ways in collective-
bargaining agreements, some by the name of the Local,* some by the
name of the International, and others by both. Frequently, the Inter-
national Union itself pursues a policy of having its subordinate locals
as parties signatory to labor agreements. It would never have occurred
to me before this case arose that this Board would consider this
question a matter of concern in the administration of the statute.
,Moreover, the Union never requested a recognition clause which
followed the wording of the certificate, and the Respondent never
refused to agree to such a clause.20 At the very beginning of negotia-
tions, the Union proposed a recognition clause "which was a material
departure from the form of the certificate. It never thereafter sug-
gested that the certificate be followed in describing the bargaining
representative. It can hardly be contended that Respondent was re-
quired to accept the Union's proposed modification of the certificate.
On the contrary, I think it had the right to assume, as it apparently
did, that the Union was opening up for negotiation the subject of a
recognition clause and that it could, following the lead of the Union,
propose its own version of such a. clause.
It would be quite a different issue if Respondent had refused to
recognize and deal with the designated representatives of the certified
union. This I would regard as a clear violation of Respondent's
obligation to treat with the representative designated and selected by
the employees as their bargaining agent. But that was 'not the case.
The record shows that Respondent at no time questioned the authority
of the union negotiators, who included among their number several
officers ,and agents of the International. Respondent did not at any
time refuse to deal with the International, or insist on dealing only
with officers of the Local. Thus, it is inaccurate as a matter of fact
to say that Respondent sought to dictate who should represent the-
21 Cf. Times Publishing Company, -72 NLRB 575.
1302 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the bargaining sessions . All the Respondent sought to
do was to elicit the agreement of the union negotiators to the Com-
pany's proposal as to how the contract should describe the union party..
The union negotiators were free to reject the proposal , and there was
no way in which the Respondent could have imposed this condition
without the voluntary consent of the Union . The distinction between
unilateral determination of an issue and a good -faith proposal for a
mutual agreement is a basic one which I do not think is recognized
by the majority.
The majority also appear to hold that the strike -vote proposal
was a unilateral denial of the representative status of the Union.
This is apparently on the theory that exclusive bargaining rights of
the certified Union could be placed in jeopardy by a shift in majority
during the certification year. But I am unable to find this import
in Respondent 's proposal . What Respondent proposed was not to
submit to the employees the question of whether or not the Union
should continue to be their exclusive representative under the con-
tract and during the certification year . In essence, the proposal was
simply that the majority sentiment of the employees be sounded out
in a secret ballot poll before being called upon to go out on strike
over certain disputes arising under the contract . I am unable to draw
so sharp a dichotomy between the employees and the Union which
represents them as to conclude that a voluntary agreement made with
the designated representative of the employees to submit the issue
of a strike to a majority vote would be inimical to the collective-bar-
gaining obligation or to the basic purposes of the National Labor
Relations Act. Again , it should be emphasized that the question here
is not whether the Respondent could unilaterally impose a strike-vote
requirement , nor is it a question of the Respondent 's right to conduct
strike votes . The Board has held that it is unlawful for an employer
to deal directly with the employees in this manner in disregard of
the collective -bargaining representative . 21 The issue presented here
is whether it is a per se violation of the collective -bargaining obliga-
tion for the Respondent to seek to secure union agreement to such a
proposal in the course of contract negotiations . I find no h^rsuasive
-authority in the statute or in court precedent for finding that good-
faith advancement of such a contract provision is unlawful.
The majority 's position with respect to the strike-vote clause seems
to me to be based on a fundamental misunderstanding of the nature of
the obligation to bargain created by the Act.
Section 8 ( a) (5) states simply that it is an unfair labor practice
for an employer "to refuse to bargain collectively with the representa-
tive of his employees , subject to the provisions of Section 9 (a)." "To
bargain collectively" means, according to Section 8 (d), the "mutual
21 The Stanley Works, 108 NLRB 734.
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1303
obligation of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with respect to
wages, hours and other terms and conditions of employment . . . but
such obligation does not compel either party to agree to a proposal or
require the making of a concession." According to the Supreme Court,
"the term `bargain collectively' as used in the Act `has been considered
to absorb and give statutory approval to the philosophy of bargain-
ing as worked out in the labor movement of the United States.' " 22
As interpreted by the Board and the courts, an employer must bar-
gain collectively with the representative of his employees concerning
"wages, hours and other terms and conditions of employment." This
is an absolute requirement of the statute.23 An employer cannot
refuse to bargain concerning such matters, and good faith is no de-
fense to such refusal. But so long as the employer meets and con-
fers with the representative of his employees concerning the compul-
sory subjects of collective bargaining, he cannot be held to have vio-
lated Section 8 (a) (5), unless in making proposals and carrying on
negotiations he fails to meet the good-faith test prescribed in Section
8 (d). This seems to me to be the plain meaning of Section 8 (d) and
of the pronouncement of the Supreme Court in the American National
Insurance case, supra. As I read that case, the Supreme Court ex-
pressly repudiated the per se theory of liability relied on by the
majority.
In American National Insurance, the respondent employer insisted
on the incorporation in the agreement of a so-called management
functions clause which reserved to the employer the exclusive right
to determine unilaterally a number of conditions of employment, in-
cluding promotions, discipline, and work scheduling. The Board
held that the employer's insistence on the prerogative clause was in
derogation of the bargaining representative's rights and therefore con-
stituted per se a violation of Section 8 (a) (5). The Supreme Court
rejected this argument of the Board. It said that the Board cannot
sit in judgment upon the substantive terms of collective-bargaining
agreements, and that whether a contract should contain fixed stand-
ards for such matters as work scheduling or should provide more flexi-
ble treatment is an issue for determination across the bargaining
table and not by the Board. It further said (at p. 409) :
The duty to bargain collectively is to be enforced by application
of the good faith bargaining standards of Section 8 (d) to the
facts of each case rather than by prohibiting all employers in
22N. L. R. B. V. American National Insurance Co., 343 U. S. 395 , 408, quoting with
approval from Telegraphera•v. Railway Express Agency, 321 U S. 343, 346. i - '
23 Richfield Oil Corporation, 110 NLRB 356; Inland Steel Company v. N. L. R. B., -170
F. 2d 347 (C. A. 7) ; N. L. R. B. v. J. H. Allison & Co., 165 F. 2d 766 (C. A. 6).
379288-56-vol. 113-83
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
every industry from bargaining for management functions
clauses altogether.
The Court's holding, therefore, is that an employer may lawfully
effectively bargain for a clause which grants to the employer the right
unilaterally to determine certain conditions of employment, provided
only that its overall conduct meets the good-faith test of Section 8
(d). In the present case, Respondent sought less than did the em-
ployer in American National Insurance. It sought more power, not
for itself, but for the employees, the representative's principal.
Relying upon the American National Insurance decision, the Court
of Appeals for the Seventh Circuit in the Allis-Chalmers 24 case refused
to enforce a Board order '21 finding an employer guilty of a refusal to
bargain for insisting to the point of impasse that any contract reached
between the employer and the bargaining representative contain pro-
visions for ratification by the employees before the contract became
effective, and for a strike vote by employees before a strike was called
if the employer and the union were unable to reach agreement. The
Board had held that insistence to the point of impasse on both these
provisions was per se unlawful because they involved depreciation of
the status of the bargaining representative and interference with the
internal affairs of the union. The Board also had argued that the
strike-vote clause was tantamount to an attempt to bypass the union
and to deal directly with the employees. The court of appeals rejected
all these arguments.
The strike-vote clause which was the subject of consideration in the
Allis-Chalmers case and the strike-vote clause in the present case are
very much alike. The arguments used by the majority in this case
are substantially the arguments advanced by the Board in the Allis-
Chalmers case. At the present time, therefore, the only court that
has squarely passed on the issue raised in this case has held that
insistence to the point of impasse on an employee strike-vote clause
is not per se unlawful.
Further, I cannot understand the legal reasoning by which the ma-
jority reach the conclusion that the Respondent's "insistence" on a
strike-vote clause violated Section 8 (a) (5). The Union first pro-
posed a no-strike clause. The Respondent countered with its strike-
vote proposal. Clauses similar to that offered by the Respondent
have been incorporated in bargaining contracts between other com-
panies and labor organizations , including the Union. The General
Counsel concedes that neither the proposal for such a clause nor the
incorporation of it in an agreement is unlawful. Presumably, the
W A1148 -Chalmers Manufacturing Company v . N. L. R. B., 213 F. 2d 347.
25 Allis-Chalmers Manufacturing Company, 106 NLRB 939.
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1305
majority would give effect to such a clause if it was so incorporated.28
There is also no contention that the Respondent used coercion or any
other unlawful method to secure a lawful result. Finally, the General
Counsel concedes that the Respondent acted in good faith throughout.
How then can the use of persuasion and firm but good-faith bargaining
to bring lawful proposal to lawful fruition be denominated per se
illegal?
The majority also considers that the Respondent's conduct was tanta-
mount to an attempt to bypass the Union and to deal instead with the
employees directly. It then draws upon such cases as Medo Photo
Supply Corp." to establish the illegality of such conduct. In Medo,
as in similar cases, the employer ignored the statutory representative
and bargained directly with the employees. The vice in such action
was that the employer went behind the representative's back to deal
directly with the employees, thus undermining the authority of the
representative. But if an employer, with the consent of the represen-
tative, negotiates directly with the employees, he violates no law. To
put the worse possible construction on Respondent's conduct, that is
all that it was trying to do in this case-secure the approval of the
representative for dealing directly with the employees. Respondent
never dealt with employees ; it did not go behind the Union's back.
It negotiated only with employee representatives, and it sought to
persuade the latter to agree to the strike-vote proposal, a concededly
lawful objective. This is emphatically therefore not a Medo type
situation.
This Board has held that it is unlawful to attempt to bargain for
a closed shop or for some other objective which is proscribed by the
provisions of the statute.28 But, in the main, the disposition of the
Board has been to enlarge, rather than restrict, the area of bargaining.
Thus, the Board held several years ago, over strong opposition, that
pension plans are bargainable, 29 and this decision was approved by the
courts. Since that decision, bargaining for pension plans has been
accepted as a routine subject for collective bargaining, although at
the time the attempt by unions to negotiate on this issue was considered
by employers as an unwarranted infringement of their institutional
rights. More recently, the Board held in the Richfield Oil 2° case that
an employer who wished to institute a stock purchase plan for his em-
ployees was under an obligation to bargain about it with the union.
2E In Briggs-Indiana corporation, 63 NLRB 1270, the union agreed that it would not
accept certain employees into membership. Subsequently, in violation of its agreement,
the union filed a representation petition seeking to represent these employees. A majority
of the Board dismissed the petition in view of the still extant, valid agreement
27 Mcdo Photo Supply Corporation v N. L R. B., 321 U. S. 678. Cf. The Fort Indust) y
Company, 77 NLRB 1287, 1300
28 E. g., National Maritime Union of America, 78 NLRB 971, 978, enfd. 175 F. 2d 686
(C A. 2), cert. denied 338 U. S. 954.
29 Inland Steel Company, 77 NLRB 1, enfd 170 F. 2d 247 (C. A. 7)
80 Richfield Oil Corporation, 110 NLRB 356.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here again, employers maintained that this was a subject which fell
outside the area of collective bargaining and that the union was at-
tempting to invade an area traditionally reserved to management.
These decisions, in my opinion, have done no more than keep in step
with the growth and development of the institution of collective bar-
gaining. We have only within the past few weeks witnessed the ne-
gotiation in the automobile industry of a new and different type of
employee benefit which I doubt was within the contemplation of any-
one when the statute was first enacted. In this instance, no question
was raised as to the bargainability of these benefits, but I daresay a
serious dispute might well have developed, leading to a possible strike
or other labor disturbance, if the decisions of the Board and the courts
had not recognized the general trend towards expansion rather than
restriction of the bargaining area.
In perspective then, I fear that it is a retrogressive step to embark,
as the majority is doing, on the hazardous task of sifting out contract
proposals made at the bargaining table, and designating some as prop-
er and others improper, despite the fact that all are subjects for law-
ful agreement. The majority is concerned, I am sure, with the possi-
bility that one party or the other may take unfair advantage, but in
the present -stage of labor relations, I am confident that we can rely
upon the parties to protect their own interests and exercise their un-
doubted right to reject proposals which impinge too deeply upon their
status. I think that the Board will make a greater contribution to
successful collective bargaining by allowing the parties more freedom
to make their own bargains and by permitting the institution of col-
lective bargaining to develop through natural and normal growth.
Any attempt to codify the issues which are bargainable and those
which are not would bring about a premature and artificial crystalli-
zation of labor-management relations, and, moreover, would inject the
Government into the collective-bargaining process to a degree which
would be disruptive of labor-management relationships. In the long
run, it would destroy the freedom which has heretofore been charac-
teristic of the collective-bargaining process.
The adoption of this view does not mean that either party to con-
tract negotiations could disrupt bargaining and forestall agreement
by making and adamantly pressing outrageous demands. Any party
who makes and pursues contract proposals is subject to the overall re-
quirement that he conduct the negotiations in good faith. The good-
faith test of the statute may not be a perfect one, but it is the test
which Congress devised, and which the Supreme Court has said we
must follow. I regard it as preferable by far to a piecemeal, propos-
al-by-proposal policing of an unlimited variety of contract demands
for the purpose of sorting out the good from the bad. I would leave
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1307
that business to the parties themselves, and, so long as the proposals
are appropriate for lawful agreement, I would judge their conduct
by the test of good faith. I do not intend even to imply that I regard
the two employer proposals involved here as reasonable or salutary.
It is not my province to make judgments of this kind; that is a decision
which, in my view, Congress has reserved to the contracting parties.
Since I cannot consider the good faith of the parties in this case, I
would dismiss the complaint.
MEMBER LEEDOM, concurring in dissent :
I dissent from the majority and hold with Chairman Farmer sub-
stantially on the grounds expressed in his dissenting opinion.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL bargain, upon request, with International Union,
United Automobile, Aircraft & Agricultural Implement Workers
of America, CIO, as the exclusive representative of all employees
in the bargaining unit described herein with respect to rates of
pay, wages, hours of employment, or other conditions of employ-
ment, and embody in a signed agreement any understanding
reached. The bargaining unit is :
All production and maintenance employees including plant
clerical employees, stock and tool handlers, excluding all pro-
duction control department employees, industrial and prod-
uct engineering department employees, statistical quality
control department employees, timekeepers, checkers, labora-
tory employees, all office employees and office clerical em-
ployees, nurses, professional employees, guards, watchmen,
and supervisors, as defined in the Act.
WE WILL NOT insist, in collective-bargaining negotiations
with the Union, upon the recognition of a union other than the
statutory representative and employee ballot proposals, or any
other proposal not involving conditions of employment.
WE WILL NOT solicit our employees in a manner calculated to
undermine the Union as the employees' collective-bargaining rep-
resentative, or threaten our employees with loss of employment
unless they abandon the strike.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-organ-
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ization, to form labor organizations, to join or assist Interna-
tional Union, United Automobile, Aircraft & Agricultural Im-
plement Workers of America, CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in other ncncerted activities for the pur-
pose of collective bargaiDuig or other mutual aid or protection,
or to refrain from any or all of such activities, except to the ex-
tent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
All of our employees are free to become, remain, or to refrain from
becoming or remaining members in good standing in International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, CIO, or any other labor organization, except to
the extent that this right may be affected by an agreement in conform-
ity with Section 8 (a) (3) of the Act.
WOOSTER DIVISION OF BORG-WARNER
CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein, as amended at the hearing, alleges that the Company has
violated: (1) Section 8 (a) (5) of the National Labor Relations Act, as amended,
61 Stat. 136, by insisting on a collective-bargaining agreement with the Local 1 only
and to the exclusion of the International; by insisting on a prestrike written ballot
to be conducted on company premises among all employees in the unit on acceptance
of the Company's "last" or any succeeding offer; by insisting on a vote on company
premises among all employees in the unit prior to amendment, modification, or
termination of any agreement reached; by bargaining with and entering into an
agreement with the Local alone; by threatening and urging employees to abandon
a strike; and by promising benefits to, threatening, and urging employees to abandon
the International; (2) Section 8 (a) (3) by refusing, because they had engaged in
concerted activities, to reinstate to their former or substantially equivalent employ-
ment 36 2 employees who had applied for reinstatement or had otherwise indicated
i The Charging Party as designated in the caption is herein referred to as the "Interna-
tional" , the term "Local" will be used to designate Local Union No 1239 of the Internation-
al , and "Union" will refer to the International and the Local jointly. These designations are
here made without implication or indication of any decision concerning the relationship
of the respective entities (or entity) and the effect thereof. Such matters are considered
infra. (My statement at the hearing of intention to employ such designations to distin-
guish among the different entities and the combination met with no better or other sug-
•gestion. ) It should be noted at this point, so that the Company's answer will be under-
stood, that the Company alleges that the International carries on its activities through
this Local and other local unions ; acts of the Local, as indicated in the record, are referred
to in the answer as acts of the International.
a Listed in Schedule A attached hereto The allegations with respect to Geoige D.
Orr and William Dilgard were dismissed on motions by the Company and the General
-Counsel respectively at the close of the latter's case
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1309
that they were available for work after a strike which had been caused by and
prolonged because of the Company's unfair labor practices; and (3) Section 8 (a) (1)
by all of the alleged acts enumerated above.
The answer, as amended at the hearing, denies the allegations of unfair labor
practices , and alleges that the Union has failed and refused to bargain in good
faith; that the employees named returned to work, quit, or otherwise lost their
right to reinstatement; that the Company signed an agreement with the International
and thereby all claims of unfair labor practices were waived and extinguished; that
the International agreed to and did withdraw the unfair labor practice charges
herein and the Board is therefore without jurisdiction; that the question of return
of the alleged discriminatees was covered by the agreement between the Company
-and the International, which the Company has performed, and all claims have thus
been waived or discharged; and that the International has recognized the agreement
and bargained thereunder.
A hearing was held before me at Wooster, Ohio, from May 11 to 18, 1954,
inclusive. Pursuant to leave granted to all parties, briefs were thereafter filed by
the General Counsel and the Company, the time to do so having been extended?
I would commend counsel and the parties on their presentation of the evidence and
submission of the issues. Although the hearing was hard fought, it was without
rancor or bitterness. Issues raised are novel, and examination was skillful; yet
concessions and stipulations were so readily forthcoming that the record and the
time consumed were literally minimized.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT WITH REASONS THEREFOR
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was admitted and I find that Wooster Division, referred to herein as the
Company, is an unincorporated division of Borg-Warner Corporation, an Illinois cor-
poration which owns various divisions which in turn operate plants in various States;
that the Company has been and is engaged at its plant in Wooster, Ohio, in the manu-
facture, sale, and distribution of fuel and hydraulic pumps; that in 1953 it shipped
products valued at more than $100,000 to points outside the State of Ohio; and that
it is engaged in commerce within the meaning of the Act.
Whatever the relation between the International and the Local, I find that each
is a labor organization within the meaning of the Act. The Local occupies such
status if, as claimed by the Company, it is one of a number of local unions
organized by the International, and the local union through which the International
carries on its union activities at the Company. Although one may be part of or
,subsidiary to the other, each is an entity and a labor organization. (In an application
for a temporary injunction, the Company referred to both as "voluntary associations.")
It. THE UNFAIR LABOR EVENTS
A. Outline of events
I shall confine myself to those facts upon which rest the opposing points of
view and the possible findings and conclusions which can be made.
It is admitted that the following employees at the Wooster plant constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9
(b) of the Act:
All production and maintenance employees including plant clerical employees,
stock and tool handlers, excluding all production control department employees,
industrial and product engineering department employees, statistical quality
control department employees, timekeepers, checkers, laboratory employees,
all office employees and office clerical employees, nurses, professional employees,
guards, and watchmen, as defined in the Act.
In a secret ballot election conducted by the Board on December 11, 1952, a ma-
jority of the employees in the said unit who voted in the election voted in favor of
the International as their representative for the purposes of collective bargaining and
on December 18 the International was so certified by the Board. (The Local was
s The record is hereby corrected on proposal in a stipulation between the Company and
the General Counsel.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter chartered.) No question has been raised concerning the Company's obli-
gation to bargain during the period covered by the events which we shall consider:
the issue is whether that obligation has been fulfilled.
After some meetings earlier in the month in connection with grievances the Union,
on January 23, 1953, presented proposals to the Company. Thereafter at a series of
20 meetings between February 2 and April 21, various proposals and counterpro-
posals were discussed. The Union was represented at these meetings by International
representatives and by Local representatives; the Company by its bargaining com-
mittee. Four meetings were held between April 27 and May 5, no International
representatives attending. We need not enter upon a detailed exposition of the nego-
tiations at these meetings . We shall of cours8 confine ourselves to the allegations of
the complaint, the elements cited by the General Counsel in support of those allega-
tions, and any factors in defense referable thereto. For example, it would not be
fair or proper to consider as in bad faith the suggestion in the testimony, but not
alleged, that the company representative proposed that the agreement be in the form
of the Company's agreement covering the Pesco Products plant of the Corporation,
but that when the Union indicated a willingness to accept that, it being pointed out
that in its preamble the other agreement in fact included the International as a party,
the Company refused; this case was not tried on the issue of submission of any such
proposal and subsequent withdrawal thereof as indication of bad faith. That there
was give and take and that the Company bargained in good faith 4 is not questioned
except for certain proposals, referred to herein as the recognition and employee ballot
proposals, and the Company's insistence thereon. The Company is not here charged
with bad faith while merely appearing to bargain in good faith; hidden intent is not
claimed. The allegation here is that the Company made overt unlawful demands,
and that such illegality convicts it of refusal to bargain.
On January 23 and February 2, 1953, the Union submitted to the Company a set
of so-called economic and noneconomic proposals which had been approved by the
members of the Local. On February 9 the Company submitted its noneconomic pro-
posal, which after a statement of intent, provided as follows:
This Agreement is therefore entered into by and between the Wooster Divi-
sion, Borg-Warner Corporation (herein referred to as the Company) and Local
Union 1239, affiliated with the International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America (UAW-CIO).
1. RECOGNITION AND DESCRIPTION OF UNIT
1.1 The Company recognizes the Union as the exclusive bargaining agent for
the employees which it represents in matters pertaining to rates of pay, wages,
hours of work and other conditions of employment , during the term of this
Agreement.
1.2 The certification dated December 18, 1952 of the National Labor Rela-
tions Board provides that the Union represents the following employees: .. .
5. RESPONSIBILITIES OF THE COMPANY AND THE UNION
5.4 It is agreed by both the Company and the Union that it is their mutual
intent to provide peaceful means for the settlement of all disputes that may arise
between them. To assist both parties to carry out this intent in good faith, it is
agreed that it is essential that three basic steps be taken with respect to each
dispute, in order to permit the greatest opportunity for satisfactory settlement:
such steps shall include (1) a clear definition of the issue or issues, officially
made known to all employees in the bargaining unit; (2) a reasonable period
of good faith bargaining on the issues as defined, after such issues have been
made known to all employees in the bargaining unit; and (3) an opportunity
for all employees in the bargaining unit to vote, by secret, impartially supervised,
written ballot, on whether to accept or reject the Company's last offer, and on
any subsequent offers made.
5.5 It-is mutually agreed that the definition of issues referred to in Section 5.4
'wily include the proposals and counter-proposals of each party; that the reason-
able period of good faith bargaining referred to in Section 5.4 shall be at least
30 days, with full discussion of the issue taking place during that period; and
4 While a finding of refusal to bargain may indicate that the negotiations were not con-
duicted in good faith, any appearance of good faith here noted is without reference to such
a finding and is not intended to prejudge the issues to be considered.
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1311
that the secret written ballot referred to in Section 5.4 shall be supervised by a,
representative of the United States Mediation and Conciliation Service, or by
some other party mutually agreed upon by the Company and the Union. The
Company and the Union further agree that such a ballot shall be taken on Com-
pany premises, at reasonable and convenient times, and with proper safeguards,
similar to those observed in NLRB elections, being taken to insure freedom of
choice and a fair election.
5.6 It is further mutually agreed that if a majority of employees in the bar-
gaining unit reject the Company's last offer, and the Company makes a subse-
quent offer within 72 hours from the time the results of the election are known,
another secret, impartially supervised written ballot will be taken within the
following 72 hours.
5.7 It is further mutually agreed that the question of whether or not this
Agreement is to be terminated is one of the issues subject to vote by such a
secret, impartially supervised, written ballot.
5.8 It is further mutually agreed that during the life of this Agreement the
Company will not engage in any form of lockout, and the Union will not cause
or permit the members of the bargaining unit to take part in any sit-down, stay-in,
or slow-down, or any curtailment of work or restriction of production or inter-
ference with production, or take part in any strike or stoppage of any kind, or
picket the plant, on any matter subject to arbitration, and not in any other matter,
until all the bargaining procedure outlined in this Agreement, (including the
Grievance Procedure, where applicable, and in all cases the three steps outlined
in this Article), have been completely fulfilled.
Pappin, an International representative, told the company representatives that the
clause naming the parties "violated the certification of the Board" and the union
constitution, and that the agreement should be with the Local and the International.
As for section 5.4 et seq., he announced, the other union representatives agreeing,
that the Union "wouldn't accept it under any circumstances."
At a meeting of the Local on February 15, Pappin reported on the Company's
noneconomic proposal. The recognition and employee-ballot clauses were objected
to, and a motion was passed giving the local executive board authority to call for a
strike vote under the provisions of the constitution when the board deemed such
vote necessary. At a meeting on the following day the Company was apprised of
that motion. The discussion then appears to have been confined to the recognition
clause, Pappin arguing that it "violated" the Board's certification, while Adams, for
the Company, replied that a leaflet signed by the local union at the Pesco plant and
passed out by the Union at the gates guaranteed autonomy to the Local and that
the agreement would be with the Local. It may here be noted that it is at least
arguable whether the statement in the leaflet, "You will have your own charter, your
own local union, your own contract and seniority and officers elected from your own
plant," excludes a contract between the Company and the International and indi-
cates that the contract would be with the Local only. The Pesco contract, entered
into October 25, 1952, presumably for 3 years, provides as follows:
This Agreement entered into between the Pesco Products Division, Borg-
Warner Corporation of Bedford, Ohio [hereinafter referred to as the Company]
and International Union, United Automobile, Aircraft & Agricultural Imple-
ment Workers of America and its Local 363, UAW-CIO, [hereinafter referred
to as the Union].
In any event, the effect of such statement on the rights of the parties is considered
infra. (Where understanding can be attained of the general position of the parties
without reference to each of the points raised by them, duplication will be avoided
by omission of those points in this chronological recital and by reference to them
only in the later evaluation.)
The Union presented its own counterproposal at the next meeting, on February
18. Like the Union's original proposal, this referred to the International and the
Local jointly, and the discussion did not get beyond the recognition clause. Argu-
ing the point in detail, Pappin noted that Adams had represented management in the
Pesco negotiations, and that it had there been agreed to include both the Internation-
al and the local union; Adams maintained that this was a different situation.
After several more meettings, Pappin reported to the membership of the Local
on February 27 that the Company was maintaining its position with respect to the
recognition and employee-ballot clauses. As a tactic which they were persuaded
would aid negotiations, the members of the Local voted for "strike action" with the
understanding that negotiations would be carried on for 2 weeks, that a Federal
mediator would attend, and that a further report would then be made to the Local, at
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which time a vote would be taken whether to accept the company proposal or to
strike.
There followed more meetings and more discussion , and on March 11 the Com-
pany submitted its economic proposal . On March 12 came the Company's settle-
ment proposal on noneconomic items. It was there declared that "The Union de-
mands that the International be the principal part to the contract." This appears
to indicate that the Company recognized that, whatever the status of the "principal"
party, the Union did not exclude the Local as a party to the contract. The proposal
declared further, referring to and scoring the phrase "your own contract" in the
leaflet referred to supra, that "the local Union should have the right to make its
own agreement" and that "the Company urges that this section be settled by per-
mitting the local Union to sign its own agreement in its own name." It is not clear
from these latter statements whether the Company was here urging that the Local
alone be recognized or that it be named as one of the representatives of the employ-
ees. But the testimony is that on March 4 Pappin had told Adams that the Union
"could not accept an agreement with only the local union as a party to the agree-
ment," and Pappin testified further, by contrast, that Adams said "repeatedly, many
times, that he thought it should be with the local union." (Blythe, the Company's
president and general manager , testified at the hearing: "The position of the Com-
pany was at all times the agreement would be with the local.") Other statements
will be noted infra, prior to a finding in this connection, as showing the respective
positions of the parties. Whatever the Company's position , it was firm: on March
13 Pappin asked whether "the Company [ was] still going to stand on • [ its] position"
on the recognition and ballot clauses, to which Adams replied , "Now, Herb, I don't
want to be misunderstood , the Company is very serious on these important points."
The Union's understanding of the Company's position after 6 weeks of negotiation
is set forth in a list which was distributed at the plant gates on March 14 and which
purported to set forth the differences between the Company's last offer and the agree-
ment entered at the Pesco plant . On the issue of recognition , there is a clear con-
trast between the Company 's offer of an agreement to be entered into between it-
self and the Local, and the Pesco agreement with both the International and the
local union there.
At a meeting of the Local' s executive board and stewards on March 15, the vari-
ous differences were discussed and it was voted to turn down the Company's last
proposal and to give the bargaining committee the right to call a strike on March 20
if a satisfactory contract were not concluded . The matter was later that day placed
before the membership of the Local, who adopted the recommendation . While the
proposition was carried unanimously at the first of these meetings , the vote at the
later one was 83 to 51; the Respondent brought out that the Union's constitution
requires a two-thirds vote.
On March 17 the parties met again . Pappin informed the company representa-
tives that the members of the Local had met and had authorized the bargaining
committee to strike on the issue of the parties to the agreement even if that were
the only issue in dispute . He also "stressed " that a strike would be called on the bal-
loting issue alone.
Other issues were considered during negotiations on March 18. On the follow-
ing day the Union submitted a counterproposal , as did the Company. The latter's
is not material to the issues before us, and beyond its submission was not considered
at the hearing. With respect to parties , the Union 's proposal included the Interna-
tional and Local, making only an insubstantial change by omitting the word "its"
which had appeared before "Local." Continued was the Union's original no-strike
proposal , which was the same as that in the Pesco agreement . The Union also pro-
posed a modified union shop and irrevocable checkoff. In all, 30 points were cov-
ered , but the Company's reply was that the proposal was not satisfactory or was
not worth considering , and that the Union should accept the Company's last pro-
posal . The meeting ended with the Union declaring that a strike would begin at 7
o'clock the next morning, March 20, but that it was willing to continue to meet
with the Company, and the latter stating that the plant would remain in operation.
The strike did commence on March 20, but the parties continued to meet during
its pendency . The first of such meetings was held on March 31. While many of
the pending issues were discussed , Pappin told Adams that the recognition and em-
ployee-ballot questions "were fundamental to the settlement of the dispute." With
respect to the recognition clause, Adams referred to "the first agreement at the
Pesco local union," entered into as of May 15, 1947, which read as follows:
This agreement entered into as of May 15, 1947 between Pesco Products Di-
vision , Borg-Warner Corporation , of Cleveland, Ohio, hereinafter referred to,
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1313
as the company, and International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America, Local Union 363-CIO, herein-
after referred to as the union.
(This clause is-in contrast to that in the later and presumably current Pesco agree-
ment quoted supra.) Adams asked, "Why don't you propose that?" and Pappin re-
plied, "I will give it my consideration." Pappin did not, however, propose such a
provision at that time ; as will be seen , he made such a proposal at the next meeting.
During the course of the meeting on March 31, O'Malley, the International's re-
gional director for that region, declared, "If the company thinks we are going to
sign an agreement with the local union , they are wrong ." The meeting closed after
a company representative said that the Company had made a fair noneconomic and
economic package offer which the Union should accept; and O'Malley said that he
believed that the Company did not want to settle the dispute, that there was no point
in negotiating further, and that he would not negotiate unless the Company advised
that it would make the International a party to the agreement , eliminated its insist-
ance that nonunion employees be included in a prestrike ballot, and alter its posi-
tion on wages.
At the next meeting, on April 17, Pappin again declared that he would not "under
any circumstances" accept the Company's provision concerning parties. (He may
here have been referring to a so-called change which the Company submitted and
which is set forth infra.) There followed a discussion of the legality of the Com-
pany's proposed balloting provisions. Adams stated that the Company was inter-
ested in those two points, which were important to both the Company and the em-
ployees, and that lie had found "six of these agreements in the U. A. W. that were
with Local Unions." Pappin's declared position was that the recognition clause
violated the Union's constitution and the Board's certification, while the ballot pro-
posal violated the Union's constitution and the law. At this same meeting was sub-
mitted a proposed modification by the Company of sections 5.4 through 5.8 of its
noneconomic proposal of February 9. This modification, referred to as sections 5.4
through 5 .9, was as follows:
5.4 The Company will not institute a lockout during the period of this
Agreement.
5.5 (a) The Union agrees that there will be no strike, work stoppage, inter-
ruption , impeding , or slow down , of work , with respect to any matter upon
which an impartial arbitrator has jurisdiction and authority to rule, or with
respect to any other matter until the procedure hereinafter set forth in this
Article has been exhausted. No officer or representative of the Union shall
cause, instigate, aid or condone any such activity. No employee shall partici-
pate in any such activity.
(b) If any employee shall violate the provisions of this Section, he shall be
subject to discipline which may include discharge. The discipline or discharge
of any employee may be the subject of a grievance under the grievance proce-
dure set forth in this Agreement.
5.6 It is agreed by both the Company and the Union that it is their mutual
intent to provide peaceful means for the settlement of all disputes that may
arise between them. To assist both parties to carry out this intent in good
faith, it is agreed that the procedure referred to in Section 5.5 (a), in the case
of a matter on which the impartial arbitrator does not have jurisdiction and
authority to rule, shall consist of four basic steps to be taken with respect to
each dispute, in order to permit the greatest opportunity for satisfactory settle-
ment; such steps shall include (1) exhaustion of the first three steps of the
grievance procedure where the dispute involves a grievance; (2) a clear defini-
tion of the issue or issues, officially made known to all employees in the bar-
gaining unit; (3) a reasonable period of good faith bargaining on the issues
as defined, after such issues have been made known to all employees in the bar-
gaining unit; and (4) an opportunity for all employees in the bargaining unit to
vote, by secret, impartially supervised, written ballot, on whether to accept or
reject the Company's last offer, and on any subsequent offers made.
5.7 It is mutually agreed that the definition of issues referred to in Section
5.6 will include the proposals and counterproposals of each party ; that the
reasonable period of good faith bargaining referred to in Section 5.6 shall be
at least 30 days (less the actual number of days, if any, but not to exceed 15
days, during which the issue or issues in dispute ,were being processed through
the grievance procedure), with full discussion of the issues taking place during
that period ; and that the secret ballot referred to in Section 5.6 shall be super-
vised by a representative of the United States Mediation and Conciliation Serv-
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ice, or by some other party mutually agreed upon by the Company and the
Union. The Company and the Union further agree that such a ballot shall be
taken on Company premises, at reasonable and convenient times, and with proper
safeguards, similar to those observed in NLRB elections, being taken to insure
freedom of choice and a fair election.
5.8 It is further mutually agreed that if a majority of employees in the bar-
gaining unit reject the Company's last offer, and the Company makes a sub-
sequent offer within 72 hours from the time the results of the election are
known, another secret, impartially supervised, written ballot will be taken within
the following 72 hours.
5.9 It is further mutually agreed that the question of whether or not this
Agreement is to be amended, modified or terminated is one of the issues subject
to vote by such a secret, impartially supervised, written ballot.
It will be noted that, like the earlier proposals, this called for a vote on company
premises by secret ballot among all employees in the unit (whether members of the
Union or not, the Company refusing to accede to a union-shop clause) on whether to
accept or reject the Company's "last" offer and on any subsequent offers made. But
whereas the Company had previously proposed that the contract was not to be termi-
nated by the Union or a strike called except after a secret ballot as described, amend-
ment and modification of the agreement were now also brought within the ballot
provision .5
At this meeting of April 17, the Union declared its willingness to consider a secret
ballot vote if the Company would agree to a union shop, the latter to satisfy the ob-
jection to having nonunion employees vote on questions which the Union must con-
sider. But the Company refused, and stood on its secret ballot provision. The Union
did not otherwise insist on a union shop.
In an additional paragraph, the Company at the same time proposed substituting
"of" for "affiliated with" in its recognition provision, so that the provision would
now read:
This Agreement is therefore entered into by and between the Wooster Divi-
sion of Borg-Warner Corporation [herein referred to as the Company] and Local
Union 1239 of United Automobile, Aircraft and Agricultural Implement Work-
ers of America [herein referred to as the Union].
Adams testified that this had been suggested to the Union orally earlier in the week of
the commencement of the strike.
In connection with the issue of parties , and referring to Adams' question at the
meeting of March 31 why Pappin did not propose the language of the first Pesco
agreement, the latter stated, "We now propose that the parties to the agreement,
which would be the International, Local 1239." The witness testified that the Board
certification at the Pesco plant was of "International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America, Local 363, CIO," the 1947
contract was so worded, and, adopting Adams' suggestion, he now proposed the same
language with substitution of 1239 for 363. As noted supra, the case was not tried
on this issue, and no finding of bad faith will be made in connection therewith.
Conversely, I now find, to avoid later reference and repetition, that the Union's willing-
ness to adopt the Company's suggestion of language different from the certification
but patterned after another agreemnt where, as Adams testified, the Preamble re-
ferred to both the International and the local union, did not constitute a waiver of
the Union's right to demand recognition in the form in which it was certified. Nor
would any waiver or loss of right be retroactive so as to exculpate the Company from
any refusal to bargain which may theretofore have occurred.
The Company's refusal to recognize and sign an agreement with the International
was again manifested at the next meeting, on April 21. Pappin called attention to
the Union's proposal at the previous meeting for the language in the earlier Pesco
6 The language of this last item presents an intriguing picture of the Company seeking
amendment or modification of an agreement, but compelled to continue it without change
when it is voted down by the employees ! The provision concerning voting on the Company's
offers prior to any strike, and the facts of business life which in this situation do not
call for expertise, indicate, however, that the Company's right to terminate any agreement
would not depend on an employee vote. One may conclude, therefore, that while the
Company could not compel acceptance of any change which it desired in the contract, it
would not be obliged to continue the contract without the change; the employee-ballot
provision limits only the Union's action with respect to amendment, modification, or ter-
mination, and of course, strike.
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1315
agreement, but Adams' objection was that he "was trying . to interpret into that
language that the agreement was primarily with the International Union." Empha-
sizing the strike issues, Mooney, assistant to a vice president of the International and
director of the Borg-Warner council, pointed out that the Company was preventing
an agreement by excluding the International as a party and requiring that nonunion
employees vote. While, as noted, I am not repeating the various requests as they
were time and again renewed and discussed, an indisputably clear description of the
respective positions is found in the following extract from Pappin's testimony:
I said to Mr. Adams: "I want to ask you this question: If we will concede on
all of the noneconomic proposals that you have previously proposed and to your
position in its entirety on economics, will you agree to make the International a
party to the agreement and to eliminate your position that non-union employes
will vote?"
Mr. Adams stated: "I think you should take it as it is."
Now, Mr. Mooney said • "Why don't you go see Mr. Blythe and have a dis-
cussion with him and have a little recess and see if you can come up' with a'faii•
proposal?"
Mr. Adams said: "We think ours is a fair proposal."
Here was another suggestion by the Union. that it might modify its position as
O'Malley had declared it previously, by omission of insistence on different wage
provisions.
Adams corroborated this testimony but stressed that it was conditional and not
an offer. He testified that immediately before the strike he asked the union repre-
sentatives why it was being called, and that they cited various economic reasons. He
testified further that the first time the Company's proposal was discussed Pappin
told him that the provision concerning parties to the agreement was "unacceptable";
that the Union would not accept the ballot proposal under any conditions; and there-
after, when the Company's second proposal concerning parties and balloting was sub-
mitted, Pappin said ". . . if [the Company] tried to advance the merits of that there
there would be no progress...." Continuing, Adams testified that on March 17 Pap-
pin was opposed to the entire noneconomic proposals submitted by the Company;
that Pappin at various meetings, although Adams could not fix the dates, objected to
and argued against the Company's parties and balloting provisions; that Pappin said
that the Union would file charges if the Company insisted on its ballot proposal
(Adams could not say but would not deny that this was before the strike), but he
said that various items were "strike issues," and similar statements were made after
the strike had started. In general, Adams did not recall and would not deny vari-
ous portions of Pappin's testimony concerning these 2 proposals, but he indicated
that threats to strike were not limited to these 2 but were directed against various
items.e
Pending while this case was being heard was a petition to review and set aside the
Board's order in Allis-Chalmers Manufacturing Company.? The latter case in-
volved a portion of the second main issue now before us: the right of an employer to
insist on employee ballots before the employee representative (there being no question
of identity in that case) may act. The Board had there held an employer's insistence
on a provision that after a contract has ceased to exist, "the Union could not strike
unless a majority of the employees in the unit voted in favor of strike action." On
May 21, 1954, the circuit court 8 denied enforcement, disagreeing with the Board's
e In a newspaper advertisement on April 2 the Company listed as "The Reasons the
Union Gave for Calling the Strike" the two items here cited and the questions of "Wages"
and "Steward's Pay" while investigating grievances. It does not appear from the testi-
mony that the strike was called because of differences over stewards' pay. The same can
be said concerning the item of wages, and the testimony quoted in the preceding paragraph
appears to support this. Other newspaper advertisements by the Company, received in
evidence, stress employee balloting and wages. The Union's advertisements of March 30
and 31 stress wages and refer to "decent wage and security conditions" and "a fair wage
and working agreement" ; that of April 2 refers to the parties and balloting issues as well
as wages. I regard the various advertisements, handbills, and other communications as
public relations or tactical maneuvers and hardly probative in the face of the weightier
evidence present. The greater the attractiveness of and emphasis on any issue, the less
important other issues will appear to be. If expertise means anything, this is a recognition
of fact in this field.
7106 NLRB 939.
8 Allis-Chalmers Manufacturing Company v. N. L. R. B , 213 F. 2d 374 (C. A. 7)
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding that "the strike-vote clause ... imposed an unlawful limitation upon the
-Union's right to act on behalf of the employees."
On April 25 the International and its representatives urged that the strikers return
to work. Butdorff, president of the Local, was reluctant to submit such a proposal
to the men, and it is clear that representatives of the International prompted settle-
ment of the strike although the International did not thereafter directly negotiate or
bargain with the Company. Whatever the legal effect of such action, considered infra,
the facts are as here found. On Butdorff's recommendation at a special meeting of
the Local later in the evening of April 25, the Local's bargaining committee was in-
structed to make contact with the Company on April 27 and get the best offer pos-
sible for settlement of the dispute and return of the strikers. The local committee
broached the matter to the Company on April 27, and on April 30 received from
the Company a proposed memorandum of settlement. This was evidently submit-
ted for approval by the International's executive board, signed by the Company and
the Local on May 2, and approved at a meeting of the Local on May 3. On May 5,
an agreement was entered into between the Company and the Local, effective March
20, 1953. From May 5 to March 20, 1954, International representatives met on
many occasions with representatives of the Company and the Local, discussing and
participating in matters which arose under the agreement. (Intervening claims by
other unions and subsequent actions are not here material.)
B. The alleged violation of Section 8 (a) (5)
1. Recognition
On the issue of recognition of the International or the Local, or both as parties
to an agreement, we can start with the limited proposition that either the Inter-
national or the Local might administer an agreement or fulfill functions as agent
for the other, which would remain as principal, or a complete substitution of one
for the other might be effected .9 But such agency or substitution would be of the
bargaining representative's volition, and it does not follow that an employer may
insist on replacement of one group for another as representative of employees or
as acting agent for such representative. The issue of such insistence must therefore
be considered on its own merits rather than as an established converse. (Distinction
can be noted between an agent informally selected to negotiate on behalf of another,
and the principal in a contract who has been certified by the Board.)
The various factors herein will perhaps more readily be noted if they are separately
enumerated.
1. A certain entity, the International, has been certified.
2. That entity is entitled to recognition as exclusive bargaining representative of
all employees in the unit in the absence of legal disability.
3. Whatever modification or agency might properly be agreed to by both the
Company and the International, the Company may not insist on such modification
or agency designation to the point of refusing to enter into an agreement without
the modification.
4. The Company did insist, as we have seen both from the testimony concerning
the meetings and from Blythe's statement of the Company's position, on substitution
of the Local for the International and recognition of the Local exclusively in any
agreement. The Union on the other hand insisted on inclusion of the International;
it requested but did not insist on inclusion of the Local also, and did in fact propose
as the Company had suggested that the agreement be in a form which included only
the Local while giving prominence to the International. (This was the form men-
tioned on March 31 and April 17.) The testimony suggests that "the Union was
interpreting (the form which mentioned the International first as in the first Pesco
agreement) as being in effect primarily a contract with the International" although,
as I have construed it, "International" is there only as a modifier, and the sole
representative recognized is the Local. Retreating from its position that the Inter-
national be named in addition to the Local, the Union proposed such reference to
the former as would suggest, in the Union's contemplation at least, its status as a
party. The Company argued that such proposal did not differ from its own, and
continued with the latter. The contrast is clear between the Union's interpretation
and the Company's insistence on the Local without even the prominent reference
which the Union sought for the certified representative.
0 Times Publishing Company, 100 NLRB 638, 642-644.
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1317
5. To this point there was a refusal by the Company to bargain within the
meaning of the Act.10
These points have been indicated by the evidence and arguments . Able and
ingenious counsel may raise others, and policy determination may suggest different
consideration . But whatever the argument , the evidence points directly to unlawful
insistence and hence refusal to bargain.
As noted supra, in addition to the various oral statements of the parties during
the negotiations on the question of recognition , and the respective proposals per se,
the Company's proposal of March 12 undertook to explain and argue for its
position . The importance of the question and the involvements here may warrant
further reference and perhaps repetition. The Company maintained (the evidence
shows that its "proposal" was insisted upon although Adams referred to emphasis
as distinguished, from insistence) "that the contract be made between the Local
Union and the Company," while it recognized the Union 's demand as not being
exclusive in its reference to "the principal party." The Company 's argument that
the Union had prior to the election spoken to employees about "(their) own contract"
might be employed to persuade the Union ; it gave the Company no right to insist.
Further, the Company's argument that "the employees should not be deprived
of the right to make and sign their own contract" does not point to the Local as
a party, either alone or jointly with the International. Unless the Company was
arguing that the employees must literally and personally sign the contract (which
argument itself denies the principle of collective bargaining through a recognized
representative), the contract signed by the International would be the employees'
"own" since the International had been certified as their representative.
I have found that, while the Company insisted that any contract be with the Local
only, and the Union requested recognition of both the International and the Local,
the Union's insistence was on the International in the face of the Company's exclusion
of it as a named part to an agreement , or on prominent use of the International's
name if it were not a party. There is no reference in the recital of the negotiations
to any indicated willingness by the Company to enter into an agreement with
the International alone . To say that the Union ( the question of its right to do so,
aside ) also insisted on the Local as a party is to assume something which is not
in evidence and which appears to be contradicted in the Company's proposal of
March 12, with its statement of the Union 's position , repeated in an advertisement
the following month. Whether the Union would have so insisted had the Company
not, we shall not speculate. The Union did not here insist on recognition oT a
,party which was not entitled to recognition. Clearly the Union objected to recogni-
tion of the Local alone, and the Company objected to the International. There was
.no disagreement over recognition of the Local; the disagreement arose over recogni-
tion of the International, which the Company refused. In deference to the arguments
and able presentation of counsel , consideration is herein given to the various facets
of the evidence in this connection in addition to the overall aspect ; and the finding
is made against the Company's position that the Union was itself unwilling to
make a lawful proposal. (The question of the Union's good faith is considered
infra.) The difference here revolved around recognition, not of the Local on
which all were agreed, but of the -International, the certified representative: the
Union sought such recognition, but the Company refused.
. Additional attention - needs to be given to the Company's position in this connection.
Accepting the allegation in the answer as supported by the Union 's constitution that
the International carries on its activities at the plant through the Local , that it receives
members as they become members of the Local , that at least in some cases contracts
have been entered into by the local union without the joinder of the International as
a named party , and that those contracts are recognized by the International , such facts
would not and do not support an insistence that the International must maintain such
a relationship for the duration of any contract with the Company, and further that it
must do so while excluding itself as a party to such contract . Nor is this a bargainable
issue 11 on which a firm . position on one side is set off against an equally firm position
on the other, to an impasse: the identity of the representative, declared by the Board
after an election may of right be maintained as so declared. The Company could
lawfully request, 12 as distinguished from insist on, another representative, or as
counsel would perhaps state it, on the recognition of the local agency through which
'° Ibid.; Taormina Company, 94 NLRB 884, 900, enfd 207 F 2d 251 (C. A. 5).
11 Taormina Company, 94 NLRB 884, 900.
22 Id at 885.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the certified' representative carries on its activities; but such request denied, the Com-
pany was obliged to recognize the International qua International as the other party
to a collective-bargaining agreement. The obligation imposed by the Board certifica-
tion stands.
That obligation was in no wise lessened because Adams and Pappin, the principal
negotiators for the Company and the Union, respectively, did not agree on the mean-
ing or significance of the identification of parties in other agreements. Apparently
there are contracts with international unions, with local unions, and with both inter-
national and local unions; and as noted supra, the Pesco Division of the corporation
-entered into an agreement with the local union of the International in 1947, but with
the International and the local union in 1952, the latter agreement being evidently
for 3 years and in effect during the period here considered. (Aside from any ques-
tion of insistence in connection with either Pesco contract, the Company apparently
having recognized the certified representative, which according to the testimony was
the local in that case, the agreements there show no more than the addition of a party,
not the substitution of another for the certified representative.) The issue is not what
the constitution of the International permits or Pappin's understanding of what it
permits. That similar requests have been acceded to, or have been made, by unions
elsewhere may encourage further reguests and may have influenced the Company in
these negotiations; but again, whatever the circumstances (including form of certifi-
cation, if any) and the agreement elsewhere,13 with whatever concessions or waivers,
the Union's rights in this connection are clear, and the insistence to impasse that they
be waived constitutes a violation of the duty to bargain.
Nor should we overlook the fact that we do not know, in the case of the other
agreements referred to, whether there was prior certification, who was certified, or if
the agreement was not executed in the name of the certified representative, whether
the representative interposed objection.
I do not rely on the International's constitution as a source of evidence that the
Company violated the Act although Pappin so declared in objecting to Company's
proposal. Nor is it clear how alleged shortcomings in that constitution or the Union's
failure to abide by it, as by calling a strike with less than a two-thirds vote, could, any
more than the document's own authority, modify the Company's obligation to bar-
gain.14 (The International having approved the agreement, as the Company points
out, this is not a case of a wildcat strike.) That the Local and the International in a
letter to the Company had mistakenly declared that the Local had been certified and
was the bargaining agent is evident. But such a declaration did not vest any right
in the Company to insist on realization of the erroneous reference and perpetuation
of an incorrect status. Union advertisements during the strike indiscriminately re-
ferred to the International and the Local. Also evident is the heading of the wage
proposals attached to the Union's first proposed agreement: "PROPOSAL OF
LOCAL 1239 UAW-CIO." It has not been suggested that the Company was preju-
diced by any earlier reference to the Local instead of the International. (The Com-
pany's references, in correspondence, to the Local as certified representative were
made on the advice of counsel.) The issue was clear and a correct position was
declared and maintained by the Union at the bargaining meetings. Nor is the Inter-
national's right to recognition as the principal and proper party to the agreement
diminished by employment of local representatives to assist or even to represent the
International or the Local or to prepare the proposals with the advice of the Interna-
tional; nor by the fact that, in the terms of a stipulation noted on the record, the
Union elsewhere alleged that the "International Union has chartered its Local No.
1239 as the Local Union of the said employees, pursuant to its constitution"; admit-
ting that the International had been certified, the Company there denied knowledge
that it had chartered the Local as such.
If it be urged in the form of the answer that the International and the Local are
the same or that the same entity encompasses both, it is clear that the identification
is of the whole and one of its parts; the Company's insistence was on bargaining with
the part to the exclusion of the rest of the whole. Despite Adams' claim that the
preamble in the Company's proposals referred to both the Local and the International
"in just the words that the union itself had made its proposal," the reference in the
one is to the Local as part of the International while in the other it is to both the
International and the Local.
12 Aside from relevance, the validity of comparison is considered infra in connection
with the analysis of "history and current practice."
11 N. L. R. B. v. Deena Artware, Inc., 198 F. 2d 645, 652 (C. A. 6).
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1319
That there must be a willingness to embody in a written contract any agreement
reached in collective bargaining is no longer open to question.15 It is fundamental
that a contract must be between defined parties, and it follows from the certifica-
tion process that the parties are in the first instance to be those who have been
defined and recognized as such in the certification. If an employer may not select
those who are to sit on the opposite side of the bargaining table,16 a fortiori it may
not select the party to be recognized which in turn selects its negotiators. What-
ever the bargaining "with respect to wages, hours, and other terms and conditions
of employment," these elements do not include the identity of the parties to be
recognized. Such identity having been fixed by the certification, the bargaining
should proceed to the substantive terms of an agreement. To insist on modifica-
tion or substitution of parties is to fail in the statutory obligation to bargain with
the proper party. If, as the court held in N. L. R. B. v. Corsicana Cotton Mills,17
an employer's insistence on limitation of a union's conduct of its internal affairs is
an attempt to withhold "recognition from the union as bargaining agent," then
surely to insist that the contract be with another entity is to withhold recognition.
If I understand correctly, the Company denies that its proposals sought to avoid
in any way the certified representative. It suggests a triune entity, i. e., that the
bargaining agent manifests itself in three different forms which are yet all one:
the International apart from its locals, the Local as a separately functioning person,
and the International with its locals jointly. Thus, for example, the Company in
its answer refers to the agreement which it entered into with the Local alone on
May 5, 1953, as an agreement with the International. This is no attempt by the
Company to mislead or to misstate a fact; it is but the identification of the respec-
tive entities as one, and alone supports the argument that "the employer and the
union . ultimately reached agreement"; and the reference to the contract as
being "between the Company and the UAW-CIO." (Further, after distinguishing
between "international representatives" and "local representatives of the UAW-
CIO," the Company in its brief refers to the latter without distinction as "the UAW-
CIO representatives" in connection with the agreement which was entered into on
May 5.) I cannot accept such identification. Nor can I believe that the Com-
pany insisted, to the point of a strike, on what was to it "a distinction without a
difference." If this was "but one union" acting in different ways, and the Company
so regarded it, there is no reason for the Company's insistence on one form of rec-
ognition rather than another in the face of the Union's claim of distinction. But the
Company's contention of "but one union" appears to have been founded only on
the references loosely made by the Union in various communications, as noted
supra. As we note the Company's arguments for dealing with the Local rather
than with the International, it will be clear that the Company did not regard the
International and the Local as a single entity. This may be another instance "of
the endless bickering and jockeying which has theretofore been characteristic of
union demands and employer reaction. ." 18 It may be significant that, when
the picketing issue was settled in connection with a then pending restraining order,
the Company recognized the International and the Local as separate parties. Dis-
tinction is further recognized in the Company's brief where, despite the insistence
that "there was just one union," recognition is given to "the local administrative
division," itself a labor organization. In any event, the bargaining representative
may insist on recognition in the terms of the certification, as we have seen; and
the certified bargaining representative here is the International, not one of its local
administrative divisions.
Neither does the fact that other agreements have been signed by both interna-
tional and local representatives when one or the other was not a named party to
u H. J. Heinz Compawij V. N. L. R. B., 311 U. S. 514, 525. The several approaches are
here made because one cannot tell at this time which will meet with favor from reviewing
authority, nor which approaches will be adopted by counsel. A later declaration, based on
agreement with the conclusions herein, that it is unnecessary to "pass upon the legality of"
any findings here made is a small but possibly necessary price for consideration of the differ-
ent facets of the case. Cf. Kingston Cake Company, Inc, 97 NLRB 1445.
1e N. L. R B. v. Jones A Laughlin Steel Corp , 301 U. S 1, 34.
17178 F. 2d 344, 347 (C. A. 5). The court in the Allis-Chalmers case (footnote 8, supra)
cited and accepted this holding. It did not agree that the earlier Fifth Circuit ruling
supported the Board on the issue of employee balloting, and I shall therefore not cite it
in the latter connection.
18 Whitin Machine Works, 108 NLRB 1537, concurring opinion of Chairman Farmer.
379288-56-vol 113-84
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the agreements indicate that international and local were there identified as one.
There can well be recognition of their efforts in negotiation without recognition or
acceptance of their status and authority as parties. Whatever the facts and specu-
lation concerning the other agreements, the fact is that here, while the Company
was willing to negotiate with the International's representatives both before and
after the agreement was executed, it refused to recognize the International as a
party to the agreement; and the International is not and does not consider itself to
be identical with the Local.
That the Company "thought that the major emphasis ought to be on a contract with
the local representatives"; that the wages and working conditions at this plant are not
comparable with those in larger cities and therefore should not be governed by other
than local considerations; and, as Adams put it, that the Company felt since the people
involved lived and worked locally and that is where problems ought to be settled, that
"the primary emphasis" 19 should be put on the local representatives-these facts and
feelings do not lessen the offense in refusing to execute an agreement with the certi-
fied collective-bargaining representative. The effect of strictly local conditions may
be weighed by the parties to a collective-bargaining agreement proposed or in esse;
such conditions do not exclude a rightful party 20
Further, the argument being directed against the influence of "outsiders" on a
local agreement, consistency would suggest the exclusion of such outsiders from the
negotiations. But this further wrong was not committed, and they were not so
excluded, the exclusion sought being rather of them as a party to the agreement.
The point that the Local is better acquainted with the needs and desires of the em-
ployees than is the International must further fall where representatives of both
partake in negotiations. There is no dispute that both were represented in the
negotiations through April 21, and that they have administered the agreement which
was entered into on May 5. The issue is not whether they were accepted as negoti-
ators acquainted with local conditions, but whether the International was recognized as
a party.
In any event, as noted infra, good reasons and fine intent do not warrant action which
is itself violative of the Act. Thus an employer does not have the right to anticipate
that a union will improperly deal with employees; should a union in fact fail to repre-
sent them, the employees themselves may seek a remedy, and for unlawful action there
are other remedies. An employer may not insist on saving employees from them-
selves or from their duly certified collective-bargaining representative. I would not
here suggest what Thomas Jefferson called an "elective despotism": the inalienable
rights of employees remain. But the employer is neither the guarantor nor the pro-
tector of those rights.
2. Employee balloting
Refusal to bargain having been found in connection with the recognition clause, it is
still necessary to consider the proposed employee-ballot provisions, both because I
cannot now foresee what the reaction will be on review,21 and in order to suggest the
proper course to be followed in future negotiations between the parties.
Going beyond the "emphasis" on local representatives, the Company now sought
assurance of expression from the employees themselves. Blythe explained that, right
or wrong, the Company "would be in trouble all the time, if [it] did not correct"
the situation "if the time ever came when 50 percent of the people employed had a
different opinion than what the management had." 22 (Despite this reference to the
total number employed rather than to the number voting, there is no issue here in that
respect.) As the court declared in the Hudson Motor Car Company case,23 "When it is
once made to appear from the primary facts that the employer has violated the express
1e The Company's reference to "emphasis" on local representatives is consonant with
'and explains its exclusion of the International. there could be no such emphasis in, the
matter of recognition if the International were named either the sole or joint representative
of the employees; and the Company clearly excluded it as such. This is in marked contrast
to the position of the Union, there being no evidence that it ever insisted on the Local
In the face of the Company's emphasis on the Local, as noted supra, the Union called
for recognition of, and later only prominent reference to, the International
20 Aldora Mills, 79 NLRB 1, 2, cf. Times Publishing Company, 100 NLRB 638, 640, 644
n Cf. Kingston Cake Company, Inc., footnote 15, supra.
22 That a laudable motive does not justify any and all means or method adopted is clear
if we realize that the reason here cited could be urged to variant a prestrike poll by an
employer. But despite any such reason, such a poll is unlawful (The Stanley IVorks, 108
NLRB 734.)
23 N. L. R. B. v. Hudson Motor Car Company, 128 F 2d 528, 532-533 (C A. 6).
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1321
provisions of the Act, we may not inquire into his motives." We are thus concerned
with the acts committed and the methods adopted , to the extent that they may be un-
lawful , and not with the motivating purpose.
We must not , of course , lose sight of the purposes of the Act ; we should indeed stand
ready to consider whether a given attitude or action "be disruptive rather than foster-
ing in its effect upon collective bargaining ." 24 But in such consideration we may not
depart from the provisions of the Act and the applicable interpretation thereof. To
stress purpose or end at the expense of specific provision and interpretation to the con-
trary is to engage in judicial or administrative legislation ; as we seek to enforce and
implement the statute we must act within its framework. Noninterference with the
internal workings of unions would appear to be too clearly established to be upset by
an alleged laudatory motive. As ". . . an employer 's protestation that he did not
intend to encourage or discourage must be unavailing where a natural consequence of
his action was such encouragement or discouragement ," 25 so a proper or even
praiseworthy motive must be unavailing where a natural consequence of the position
insisted upon is interference with the organizational activities of employees and the
free internal working of their representative.
The Company here anticipated the Union's failure to represent the employees, and
with such anticipation took unto itself the privilege of preventing or remedying such
failure. In the recent Midland Rubber case,26 a majority of the union membership
approved an agreement negotiated with the employer , but before the agreement was
signed a majority of the employees in the unit signed a petition opposing execution of
the contract . The contract was thereafter executed although 3 of the Union's 6-
member negotiating committee refused to sign , all of this occurring within 6 months
after the Union's certification. The Board there declared:
In these circumstances , we see no warrant . . . for inquiring into the disagree-
ments among the employees as to the precise economic demands that should be
made upon the Employer by the duly selected majority representative or by
the regularly chosen officers of the Union .4 Indeed , the manner in which em-
ployees resolve disagreements caused by conflicting interests within the limits of
any appropriate bargaining unit are beyond the scope of the Board 's authority .5
4 Cf. Queensbrook News Co., Inc., 98 NLRB 84.
s Lewittes and Sons, 96 NLRB 775
The difficulty there was quite real , not merely anticipated . It would seem , then, that
the Company's emphasis here on "the mechanics for settlement " of possible disputes
as declared in its letter of February 9, 1953, which accompanied its counterproposal,
"within the limits of [the] appropriate bargaining unit" ( in the language of Midland
Rubber, and as distinguished from disputes between the bargaining unit and the
Company) is beyond the lawful scope of the Company 's insistence.
The court's learned opinion in the Allis-Chaltners 27 case and the keen presentation
by counsel in the instant case suggest a different conclusion here and demand careful
analysis.
That proposed amendatory legislation to require prestrike ballots has recently
failed of passage casts little if any light on the issue before us. It is clear, of course,
that there is no declaration that public policy requires such ballots . But neither is
the failure of adoption equivalent to a clear statement of illegality; this factor con-
sidered alone is quite compatible with recognition of the issue as one which is fully
bargainable . We must therefore look elsewhere for further assistance on this point.
The plan of the Act, and its purpose, are to give to a representative of the majority
of the employees in an appropriate unit the exclusive bargaining authority for all in
the unit . Unless we undertake to rewrite the Act or to ignore its purposes , we must
recognize the bargaining agent 's right to act as representative without interference or
modification of its authority. If an employer may insist on a no-strike clause, that is
an item which it gains in negotiation with the employees ' representative; how the
latter reaches its own decision to agree to a no-strike clause is not a problem for the
employer . Even were the item here sought only a prestrike vote among all em-
ployees, whether members of the bargaining agent or not , the difference is clear:
for agreement on action vis-a-vis the employer (no strike), has been substituted a
matter of procedure by the bargaining representative among the employees before
it determines on such action , and in fact an insistence that the bargaining representa-
24.7. H. Allison and Company, 165 F. 2d 766, 768 (C. A 6).
2 Radio Officers ' Union, etc . v. N. L. R. B., 347 U. S. 17, 45.
Midland Rubber Corporation , 108 NLRB 930.
Footnote 8, supra.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive make its decisions only after following a certain procedure . The difference
between such procedural regulation and a no-strike ' clause, and the inapplicability of
any rule concerning insistence on the latter are evident from the fact that adoption of
the procedure does not exclude the right to strike ! That the procedure here insisted
on includes voting by nonmember employees merely points up the limitation on the
bargaining representative.
The Union's representative authority would here be confined to the ministerial
duty of conducting elections as required by the Company and transmitting notice of
the result; further, balloting would be diluted 28 by inclusion of nonmember employees.
Insistence on such conditions is denial pro tanto of the Union's authority as bargaining
representative.
The fundamental difference in relationship and the parties and principles involved
in a no-strike clause on the one hand and a prestrike ballot on the other is overlooked
when it is argued that the latter is a lesser limitation . The question to be answered is,
Where is the limitation placed? In one case it may be lawful; in the other not so.
Calling a strike , with possible consequent effect on production does not merely affect
the employer-employee relationship ; it is part of that relationship . On the other
hand , and whatever its effect , the procedure to be followed in deciding whether or
not to strike is not a part of the employer's relationship with his employees . As well
accord an employer the right to insist that, whenever a strike go into effect, it may
be voted on only on a certain day of the month and that every voting employee must
first listen to employer urging. (This last is not far removed from the plan of con-
sideration by employees of the employer's last offer.) Whatever the merit of such
procedure , it is not indicated by the policy of the Act, but is contrary to indicated
policy. Accord the employer the right to insist on details of union administration
("internal affairs" so-called), and there is no limit to the conditions which he may
impose on union proceedings.
While the Company referred to such items as part of "the mechanics for settle-
ment," its emphasis on "settlement" cannot hide the fact that it was here dealing with
the Union's "mechanics."
The door opened, all sorts of limitations could be insisted upon; and why not,
indeed ? The difference might be one of frequency or degree, but it would not be a
difference in kind . Here we find restriction on union procedure after the agreement
has gone into effect : during its term and with respect to termination or modification.
If this be proper, there is no valid basis for denying to employers the right to insist on
conditions precedent to adoption of a contract; conditions which could effectively fur-
ther restrict the statutory rights of collective-bargaining representatives . Does the
representative refuse to accept a provision insisted upon by the employer for a pro-
posed contract? Then the latter can insist that the issue be presented to the employees
for determination ! But such insistence , whether before or after the adoption of an
agreement , makes a mockery of the provision of the Act that the designated agent be
the exclusive representative .29 The provision that employees may themselves present
grievances to the employer and have them adjusted would no longer be the exception.
Of greater import and significance , a voting majority could at any time during the
certification period and in direct dealings with the employer (if the latter insisted
on such a position ) overrule the "exclusive" representative.
If there may be insistence on a no-strike clause it is not because a strike is a condi-
tion of employment (as distinguished from a condition for employment) and there-
fore bargainable , but because a strike waiver is an item which public policy recog-
nizes as a proper quid pro quo in negotiations . But whatever the basis for permitting
insistence on a no-strike clause, the method by which a bargaining representative
comes to a decision is neither a condition of employment nor a proper subject for
trade and insistence by an employer.
28 If the Company would say, "Fortified ," concededly the authority of the bargaining
representative would be thus circumscribed.
29 Section 9 (a) of the Act provides as follows :
Representatives designated or selected for the purposes of collective bargaining by
the majority of the employees in a unit appropriate for such purposes , shall be the
exclusive representatives of all the employees in such unit for the purposes of collec-
tive bargaining in respect to rates of pay, wages , hours of employment, or other con-
ditions of employment : Provided, That any individual employees or a group of em-
ployees shall have the right at any time to present grievances to their employer and
to have such grievances adjusted, without the intervention of the bargaining repre-
sentative, as long as the adjustment is not inconsistent with the terms of a collective-
bargaining contract or agreement then in effect: Provided fuithei, That the bargain-
ing representative has been given opportunity to be present at such adjustment.
WOOS'ER DIVISION OF BORG-WARNER CORPORATION 1323
- Pursuing the point further, the statutory limitation on the exception concerning,
grievances would itself become meaningless. An employer need only insist on a pro-
vision which would make all other terms of the agreement subject to any future ad-
justment of grievances, and such adjustments would no longer be "inconsistent."
Thus, regardless of their exclusive bargaining representative, individual employees
could grieve and, with the employer, agree to any terms and conditions concerning
which their representative could or may have agreed.
In the instant case the Company maintained a consistent position and demanded a
vote not only before a strike but even before the contract itself could be terminated.
Here is an attempt by one party to limit the other's right to terminate any agree-
ment at its indicated termination date while the right of the former to terminate is in
no way diminished. (We need only mention the point that by making successive
"last" offers and "any subsequent offers," the Company could, at its option, perpetu-
ally prevent strike action or termination of any agreement.)
Labor peace is indeed a desideratum. But there is no warrant for adoption of an
unlawful method to achieve so-called peace. I do not believe that the Company or
its counsel will argue the last stated proposition: they will maintain only that their
method is not unlawful. But emphasis on the goal suggests a willingness to overlook
"methods" for the goal to be attained; yet there may be a measure of agreement that
we should not seek that labor "peace" which might be obtained by pointing a gun at
one who threatens to strike. (Citing an extreme situation, I do not suggest that the
Company here pointed a gun.)
This issue can be broken down into two items, each of which indicates a violation.
For the reasons noted, the Company must be found to have refused to bargain if its
insistence was (1) on a ballot before the Union acted, or (2) that any ballot taken
must be among all employees in the unit, whether or not members of the Union so
The insistence here was on both. Nor, as on the question of recognition, does it
matter whether Pappin could cite a section of the Union's constitution which forbids
the balloting which the Company demanded, or even whether the constitution con-
tains any such provision. His opposition to the balloting clause in the agreement and
the Company's insistence on it were further indicated during the colloquy concerning
the union constitution in this connection; and the insistence was unlawful. With re-
spect to the Union's proposal on April 17 for a union shop, the illegality of company
insistence on a secret ballot is not less such because the Union was willing to accede
in return for what it considered a protective measure.
The court in Allis-Chalmers, apparently considering this point as there raised by
the General Counsel, referred to the difference between the right to strike "during the
duration of the contract" and the right "after the contract termination." I can only
conclude that the issue there considered was different from that here noted. The
objection which I have indicated would obtain even if insistence were on a clause dur-
ing the life of the contract provided that the clause demanded by the employer, in-
stead of merely prohibiting a strike, set forth the manner in which the bargaining
agent must proceed in its consultation of or other dealings with employees. This
latter is a strictly "internal procedure" over which the employer may not claim
control. As for the period "after the contract termination," the Company here, as
noted, attempted to avoid that alternative by provisions delaying or preventing termi-
nation; it insisted on a strike bar when, but for its urging of unilateral power to con-
tinue the contract, such contract would be terminated.
Considering the argument that all employees should have a voice, the court in
Allis-Chalmers declared:
To hold otherwise means that non-Union members for whom the Union has been
certified as the bargaining agent are always without right to express their desires
concerning matters of vital importance to them.
The duration of that "always" is of course limited by statutory provisions concerning
representation and the employees' choice thereunder. But in any event the policy and
express language of the Act provide for expression of desire in a representation elec-
tion. No more than voters vis a vis the legislature are employees given the right to
limit the action of their representative as such. (Here that right is being demanded
for them by the employer.) The Act does not provide for "referendum" as a limita-
tion on the activities of the collective-bargaining representative; a right to "recall"
is provided. Under the circumstances, with true and sincere respect for the court
and its decision, I must confess my own inability to see that to deny the employer's
80 An employer's right to anticipate a representative's failure to consult or act on behalf
of employees has been referred to supra and will he further in the analysis of the Allis-
Chalmers decision.
1324- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demand is to cast nonunion employees "into oblivion ," or that - the reason for the de-
nial is a "pretext" which justified such demand.
Aside from any question of relative desirability or policy , the right here claimed
for the employer is one of bargaining not for its own benefit except indirectly, but
for the alleged benefit of employees . Such a claim is outside the statutory and recog-
nized scope of collective bargaining . To the extent that it undertakes to argue for
the welfare of any employees as distinguished from its own welfare, the employer
assumes an anomalous position , replacing the statutory representative of all employees
in the unit and attempting to sit on both sides of the bargaining table. (I am no more'
sympathetic to a "round table" discussion under such circumstances than I was to a
proposal for such discussion in connection with Korean affairs a few months ago.
In both cases the parties involved , without comparing them, are partisan , whatever
hope may be for the future.)
This is certainly not a subject for insistence . Nor did the Company herein limit.
its insistence on employee ballots to ratification of company offers and strike decisions.
As noted , termination by the Union of any agreement was also to be subject to a,
ballot without such limitation on the Company's freedom of action , and a later pro-
posal made such procedure applicable also to modification or amendment. I can-
not equate the Board 's authority to police certain elections with the rights here sought
by the Company , if relevancy be claimed for stipulations noted on the record con-
cerning Board practice.
I endorse the analysis by the court in Allis-Chalmers of the Board 's theory as more
plausible in the American National Insurance Co. case : 31 the proposal in the latter,
as described in Allis-Chalmers , "included matters concerning which the Union had a
statutory right to bargain.. . Further, "any impairment involved [here as in
Allis-Chalmers ] relates to a right which the Act preserves to the employees." But
while "the proposed clause here does not impair any right delegated [emphasis sup-
plied] to the Union by the Act," the Act clearly indicates, and the cases recognize,
the right of the Union to reach its own decisions free from employer dictation (dis-
tinguishing this from any obligation on the employer to abide by such decisions); and
the right preserved to employees is to engage in union or other concerted activities
free from employer interference and through their bargaining representative. Under
the Act, employees may refrain from engaging in concerted activities . But having
selected an exclusive bargaining representative , they thereafter express themselves in
bargaining matters, whether by action or waiver of action , through that representa-
tive exclusively . They may indeed , as the court declared in Allis-Chalmers , "waive
such right"-in a proceeding between themselves and their representative, and over
which the employer may claim no right of insistence . This seems to me to be con-
sistent with the terms and policy of the Act. It permits insistence on a no -strike
clause, but not on any plan which undertakes to outline union-employ procedure.
In the Allis-Chalmers case the court noted the Trial Examiner 's conclusion that
the strike clause there considered "has been accepted by large international unions,
and represents negotiated policies." It also noted that "the examiner had pointed
out that the Company had a right to bargain with the Union regarding the dis-
puted clauses and to attempt to persuade the Union to accept them ," but that he had"concluded that the bargaining history did not establish that the proposed clauses
`represent conditions of employment bargainable to the point of impasse.' " The
court then declared: "The pronounced history (reviewed by the examiner), however,
appears to have been cast aside by the examiner on . speculative reasoning."
The court found it "more reasonable" to adopt another alternative which "perhaps
is also speculative."
To refer to so-called "history and current practices" and to draw any conclusion
therefrom is unwarranted. There is no comparison with the number of cases in
which no such request was made or, having been made and refused , was not pursued
further ; so that there is no basis on which to recognize this as in line with "history
and current practice ." Nor, as noted , do we know whether in this history requests
were met with refusals but were persisted in to acquiescence; the question before us
is whether there was unlawful insistence, not a mere request, and the references to
other cases shed no light on that. In simple language, the fact that in other cases
a given point was agreed upon does not prove at all that the point was insisted
upon or that, if there was insistence, such insistence was by the agreement made law-
ful. No more than in the matter of recognition do other contracts establish the
Company's right to insist on employee ballots as it did here.
As indicated , the analysis which I have undertaken relies on no "speculative rea-
soning" concerning the acceptance of employee ballot proposals . In this context I
31 N. L. It. B. v. American National Insurance Co., 343 U. S. 395.
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1325
would not say that "History and current practices are strong, sometimes conclusive,
evidence as to what are appropriate subjects of negotiation ." Acceptance of the
conclusion that such proposals may not be insisted upon although they may be
submitted and adopted if assented to permits us to regard "history and current prac-
tices" as indicative only of some instances of such assent under the circumstances
there existing. What may be wrong (and we do not even have evidence that wrong
was committed in the other cases mentioned since we have no evidence of insistence
there) does not become right because accepted or permitted elsewhere; if it be
claimed that insistence in another case was right or lawful, a demand for proof takes
us back to the point which we have passed in the instant case. Aside from the ab-
sence of sufficient evidence in that connection, the argument from history and cur-
rent practice seeks to avoid the question of right and wrong in favor of a so-called
realism which, like realism generally, denies fundamental truth or natural law and
urges what appears at the moment to be advantageous and expedient: The question
then remains , Whose claim for advantage is to be furthered?
With respect to both of the Company's proposals which we have considered, it can
be said: "Ain't no harm in askin'; but there sure is in persistin'." With this the Com-
pany's counsel appears to agree conditionally. At the risk of stressing the obvious,
I point out that submission of the Company' s proposals did not violate the Act; in-
sistence thereon did, in my view that these were not "bargainable issues" on which
under American National Insurance Co.32 both sides could in good faith maintain
and insist on their respective positions33 When the Company, maintaining its po-
sition , bargained and entered into an agreement with the Local alone, it further de-
faulted in its obligation to bargain within the meaning of the Act. (While there
are suggestions to the contrary in the testimony received, Blythe testified and the
preponderance of the evidence indicates that the Company adopted and maintained
its position under advice. Of course, it may test the law; but there should be no
question concerning the facts and the position taken.)
3. The Union's good faith, waiver, and laches
Although, in an attempt to meet the allegation that it wrongfully sought to enter
into an agreement with the Local alone, the Company set up a to quoque claim that
the Union itself deviated from the certification and sought recognition of the Local,
the evidence indicates. as I have found, that the Union never reached the point of
insistence on the Local as a party. The testimony is only that the Union "went
along," agreeing to the Local as a party. The Company, insisting on the Local,
did not object to the inclusion of the Local in the Union's proposals; the objection
was only by the Union to exclusion of the Interntaional by the Company.
Pointing to various statements by the Union and its representatives, the Company
charges that the Union did not itself bargain in good faith as its position during
the negotiations differed from those other statements. We have noted references
to local autonomy under the earlier Pesco agreement, and a failure to distinguish
adequately between the International and the Local in various communications.
But no more unchanging and to be relied upon than propaganda references to higher
rates of pay and other terms obtained and promises of further gains to be achieved
are boastful assertions of local union autonomy. What the result may be in either
case as far as disillusioned union members are concerned is not our present inquiry.
But an assurance of autonomy made in handbills distributed among and calculated
to persuade employees (or such a statement made anywhere to employees) is no
more part of the bargaining process vis a vis the employer than is an assurance of
better working conditions. As for any attempt to confuse the Company, we have
seen that the separate identity of the International and the Local was clearly and
consistently insisted upon by the Union when that issue was considered. Concessions
made elsewhere could not constitute a waiver of rights here. Nor is bad faith to'
be found because the Union would not make such a concession.. (Again it should
be noted that, with respect to recognition, there is an assumption here of what is not
in evidence ; that the circumstances in the other cases mentioned were similar to those
in the instant case.)
Nor do strike authorization and reference thereto during negotiations imply bad
faith on the part of a union so long as strike action is considered a legitimate means
m Supra.
83 Cf. Fehr Baking Company, 104 NLRB 240, where the employer, negotiating, declared
only that it was not waiving whatever rights it had stemming from certain exceptions
which it had filed and which were then pending before the Board. This is a far cry from
insistence.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for obtaining concessions. Preparation may be necessary, and warning proper. Fur-
thermore, such activities are considered as "tactical maneuvers."
My own opinion of such so-called tactical maneuvers, whether by a union in
promises to employees at meetings or in advertisements, by an employer in discharge
letters which are not discharge letters, or by either at the bargaining table is not
here relevant. Whether we like it or not, various preliminaries generally mark the
bargaining process. Negotiators have developed their own "courtship dance." As-
suming extreme positions, they follow a pattern of not so coy approach until there
is a meeting (of the minds). Failure to follow this routine marks the exceptional
case. In fact, to ignore it is to risk being branded as inexperienced. The validity
of these observations will be recognized by all who have experience as negotiators
or who have studied the work of negotiators. In view of this accepted reticence
and delay in "laying the cards on the table," and considering the relationship between
the parties herein, I find no bad faith in the methods here followed.
Again, lack of good faith is charged because Pappin said that the International's
Regional Director would not approve the Company's proposals, and elsewhere that
the constitution does not permit such proposals. These are not mutually exclusive
statements, and if provisions of the constitution do not support the witness' position,
his statement of position does not prove bad faith. Any error which he made in
this connection is quite understandable; to me, at least, the only clear thing about
some of the provisions of the constitution is that they are not clear.34 At all
times, Pappin's and the Union's attitude was clear: the International must be a
party to the contract. Pappin's good faith does not depend on the accuracy of his
reasons in the absence of evidence of bad faith in stating those reasons.
We must next consider whether by the contract of May 5 between the Company
and the Local the Union waived 35 any claim of violation of the Act by the Company.
If, as found herein, the Company did not bargain in good faith, termination of
the negotiations by the Union could have given rise, in the language of the Allis-
Chalmers opinion, to the "contention that . . . the . .. proposals were not urged to
the extent of affording the Union a valid reason for terminating its negotiations with
the Company." Here the negotiations were not "abruptly terminated" by the Union.
It maintained its position concerning the Company's unlawful insistence but the
Company, adhering to its stand on recognition of the Local alone, entered into a
contract with the latter. (As stated supra, the International prompted settlement
of the strike and approved the settlement agreement between the Company and the
Local, which ended the strike and led to the contract. The International also
helped to administer the contract.) Acceptance of this alternative by the Union,
with avoidance of the Allis-Chalmers situation, is now met with the contention'
that the Union thereby waived its rights! On the one hand, it is not to be urged
that insistence is less such because the other party submits. Nor, on the other, does
submission under these circumstances indicate that the earlier stand was not taken
in good faith.36
Included in the settlement memorandum of May 2 between the Company and-
the Local was the following provision:
13. The Union will request the National Labor Relations Board to withdraw
and the Union will not hereafter revive or press, the unfair labor practice
charges filed against the Company and now pending in Case No. 8-CA-830.
The Union has delivered to the Company and executed form for this purpose
and authorizes the Company to deliver it to the Board.
84 For example, a question was raised concerning article 49, section 1, which provides
for a meeting and vote among all members "Whenever any difficulty arises . . . between
its members and any employer . . . or whenever any Local Union desires to secure for its
members an increase . . . " The Company has suggested that since the Union represents
all employees, a question may arise concerning nonmembers and in such a case the issue is
not limited to members . Again, while article 6, section 14, provides that "The International
Union and the Local Union to which the member belongs shall be his exclusive represent-
ative for the purpose of collective bargaining . . . and for the negotiation and execution
of contracts . " article 19, section 1, recognizes contracts "between Local Unions
[alone] and employers."
sa As noted infra, where the strikers ' rights are considered, there is no estoppel here.
se I have noted the Company's argument "not that there was bargaining to an impasse on
the subject, but, rather, that there was bargaining to an agreement." To an agreement,
one may add, with other than the certified representative.
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1327
The memorandum was signed on behalf of the Local, i. e., on behalf of "Local 1239,
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-CIO."
Aside from the fact that the Local, not the certified union, entered into the
memorandum agreement and the contract, as was said by the court in another
context, "The most that can be inferred from the union's action [in entering into
a contract] is that the advantages of a contract in hand outweigh those which the
union might later obtain.. " 37 As for any waiver by the International as it urged
the Local to get the men back to work and sign a contract, submission after an
unsuccessful strike is hardly an ironing out of differences or a waiver of either
statutory rights or of violation of those rights. Nor, as we shall soon see, should
the Board, which retains the power to direct that any unfair labor practices be
remedied, refuse in such a situation to exercise such power even if sufficient
request were made for the withdrawal of the charge. Here withdrawal of the charge
was agreed to by representatives of the Local who were known to the Company to
be without authority so to act (the charge was filed by the International), and who
acted after their president's specific disclaimer of such authority.
Entry into an agreement does not exculpate the Company from its violation of
the Act. Aside from the indicated lack of authority by the Local to waive the
International's rights, the Board's process is not to be thwarted by any waiver even
if without an element of compulsion or necessity. The Board has recently held
again that an agreement between the parties does not render a case moot or affect
the Board's power, in its discretion to issue a remedial order.38 If under some
circumstances the Board might hold that it should withhold action or remedy as a
matter of public policy, there was here no such connivance by the Union or mis-
leading of the Company as warrant such a step by the Board. . `The statutory
requirement of good faith bargaining is not subject to waiver through action or
inaction of parties to a labor controversy,' for the Board's duty to enforce the
public policy underlying the Act transcends private rights and ordinary principles of
contract law." 39
The suggestion of lathes inherent in a defense that the contract was maintained
until March 20, 1954, is met by the fact that the charges were timely filed and that,
no explanation sought or offered for the delay, the General Counsel issued the com-
plaint and notice of hearing 11 months after the original charge and 9 months after
the amended charge. There is no evidence of delay by the International.40 If
unfair labor practices were committed, the International received and accepted
only part of what was its due and right under the statute while itself waiting for
action and relief which it had sought.
4. Loss of majority
The answer denies that the Union represented a majority of the employees after
March 20, 1953, when the strike was called. Evidence was received of inter-
vening claims by other unions between April and December 1953. The Company
also offered to show that in July the International expelled 26 former members.
Whether these or any of them helped constitute the Union's majority we could only
speculate , as we would also be compelled to do were we to base representation
on the number of checkoff authorizations. The sum total of various possibilities
and speculations 41 is not proof of loss of majority, nor if there be such loss, can
it be relied on, as we shall note, by an employer which has refused to bargain. We
need not consider whether there were "unusual circumstances" 42 such as would
relieve the Company of the obligation to bargain through the certification year.
It has been found that the Company failed and refused to bargain in good faith
when it was admittedly obliged to do so.
That the Company may not assert and act on alleged loss of majority has been
reiterated as follows:
The respondent asserts that the union no longer represents a majority of
respondent's fabricating shop employees, having lost its majority status since
°N. L. R. B v. Yawman & Erbe Manufacturing Company, 187 F. 2d 947, 949 (C. A. 2).
38 The Stanley Works, 108 NLRB 734.
°°N. L. R. B. v. Southeastern Rubber Manufacturing Co., Inc., 213 F. 2d 11 (C. A. 5).
10 Cf. Arkport Dairies, Inc., 95 NLRB 1342, 1344.
41 The uncertainty in this connection is indicated on the record during a colloquy with
the Company's attorney.
42 Henry Heide, Inc, 107 NLRB 1160.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the election. But this does not excuse the respondent from its duty to bargain
with the duly certified representative. The respondent cannot decide for itself
whether a duly certified union has lost its bargaining status by reason of a
failure to retain a majority representation, and deciding that it has, refuse
to deal with it further. A bargaining relationship once rightfully established
must be permitted to function for a reasonable period, after which the Board,
in recognition of changed conditions, may take steps to change it. Until the
Board acts, however, the existing certified representative must be dealt with as
such 43
The certified representative must be given the opportunity to function as such, and
the remedy is not to be denied it because of passage of time during which the Com-
pany refused to bargain with it. Nor can we separate an existing interunion con-
tradiction or confusion, if any, from the earlier refusal to bargain. The prompt-
ness, on April 30, 1953, of a conflicting claim to negotiate on behalf of the employees
emphasizes the connection between refusal to bargain and a possible loss of majority.
That refusal to bargain may lead to loss of membership has been recognized, as
has the remedy that the employer thereafter recognize the Union as collective-bargain-
ing representative.44 Such remedy provides the Union with the recognition for a
term which the employees are deemed to have indicated and which it has been
denied. (This point will be considered but will not be repeated in connection with
the remedy, infra.)
C. The alleged independent violation of Section 8 (a) (1)
Between March 31 and April 22, 1953, the Company inserted some dozen advertise-
ments in the local daily (there were similar radio advertisements) urging, among
other things, that the strikers return. The presentation therein with the arguments
made concerning the items in dispute was an appeal over the Union's head during
the pendency of an unfair labor practice strike, and setting the employees off against
the union "Professionals" tended to undermine the Union, all in violation of Sec-
tion 8 (a) (1) of the Act 45 Similar violation can be found in the visit to the home
of employee and local vice president, Patterson, by McCune, a supervisor, and
Hunt, toolroom foreman, the request that he return despite the strike, and the sug-
gestion that the Local "forget the International." Such violation is not minimized
by the fact that a projected meeting between the Company and the Local alone was
not held and the additional fact that there was further bargaining with both the
Local and the International (as we have seen, the Local did later meet with the
Company): ". . the test is whether, under all the circumstances, the [act com-
mitted] reasonably tends to restrain or interfere with the employees in the exercise
of rights guaranteed by the Act." 46 (My own emphasis here is on the phrase "rea-
sonably tends.")
Further, both by advertisement and letter to the employees, the Company
promised to provide, as it thereupon did provide, automobile transportation to the
plant. There is no evidence that such provision was necessary to protect against
unlawful conduct any employees who wanted to work. It appears only to have
been a convenience and inducement offered the employees, whose own problem
it is to get to the job; and as a convenience so offered it constituted unlawful
persuasion to return to work. If a promise to provide transportation is unlawful
in a pattern of illegal opposition to the purposes of the Act,47 then the promise and
actual performance thereof are certainly so.
In several of the advertisements the strikers were notified that their jobs would re-
main open until April 20, when the Company would start to hire replacements. The
advertisement of April 22 was addressed "To the former employees of Wooster
Division who have vacated their jobs because of the strike," and it advised that they
could return if their jobs had not been filled. Similarly in individual letters to those
who had not returned, the Company on April 15 reminded that the job was open
until April 20, and concluded as follows: "If you do not return [the reference being
"N. L. R. B. v. White Construction & Engineering Co , Inc., 204 F. 2d 950, 953 (C. A. 5).
44 Franks Bros. Company v. N. L R. B., 321 U. S. 702
ss N. L. R. B. v. Clearfield Cheese Company, Inc., 213 F. 2d 70, 73 (C. A. 3) ; The Texas
Company, 93 NLRB 1358, 1361; City Packing Company, 98 NLRB 1261, 1273.
4e Blue Flash Express, Inc., 109 NLRB 591. See also N. L. R. B. v. Link-Belt Company,
311 U. S. 584, 588.
47 Clearfield Cheese Company, Inc., 106 NLRB 417.
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1329
to 'return by Monday, April 20'], I wish you the best of success in your new job
whatever or wherever it may be." These letters were followed by others on April
22, addressed "To Those who Chose to Give up their Jobs at Wooster Division,"
and declaring inter alia, "When you did not report for work on April 20, it became
apparent that you had decided to give up your job here." (The Company's letter
of May 4 and subsequent events will be considered infra in connection with the
alleged violation of Section 8 (a) (3).) These advertisements and letters constituted
unlawful threats of discharge to coerce employees to abandon the strike, in viola-
tion of Section 8 (a) (1) of the Act. 48 (They have not been alleged as separate
violations of Section 8 -(a) (3).) As for a finding of violation of Section 8 (a) (5)
in this connection, where the Company is under an obligation to bargain, 49 the situ-
ation appears to be governed by the Board's decision in Efco Manufacturing, Inc., 50
where it was found that the interference did not indicate an intent by the employer
to seek individual rather than collective bargaining.
One employee, Read, testified that Blythe would generally `come around, and
[they] would visit, and it was about one thing or another"; that once, almost a month
before the strike, Blythe told him he thought that they "could get along and iron
the thing out without any trouble" if Pappin were out of the negotiations. Read could
not recall how these remarks "came up." Blythe denied making any such remark.
Whether, if made, it was an expression of opinion and a natural reply to other state-
ments, we can only conjecture. I find no violation here. Nor will I base any finding
on hearsay references during the negotiations to alleged violative remarks which, to
quote the General Counsel's brief, "the company representatives for the most part
did not deny."
D. The alleged violation of Section 8 (a) (3)
Having found that the Company failed to bargain in good faith, I find further
that the strike was called in protest against such violation of the Act and was there-
fore an unfair labor practice strike. It is clear from the evidence concerning the
.negotiations before and after the strike that the sine qua non of any settlement and
contract with the Union was agreement on the issues of recognition and balloting;
and that failure to agree on these issues prompted the strike. In making this finding, I
have noted that Adams' references to the fact that many points were in issue were less
certain and specific than was the testimony that the main contentions were in fact
over these two points, and I resolve the issue of credibility in favor of the latter testi-
mony. Further, and regardless of the extent of the differences, the testimony, as
outlined supra, stands uncontradicted that strike action was decided upon at the
meetings of employees because of the Company's refusal to bargain, and that the
Company was so advised. 51
Aside from this uncontradicted testimony, and even if other considerations were
also present , an unfair labor practice strike would not thereby lose its character as
such. As the court declared in N. L. R. B. v. Stilley Plywood Company, Inc.; 52
As said by Judge Goodrich in Berkshire Knitting Mills v. N. L. R. B., 3 Cir., 139
F. 2d 134, 137: "Where the causes contributing to a strike consist of unfair labor
practices and employee desires for wage betterments, the latter should not excuse
the employer from the legal consequences that flow from its conduct which trans-
cends the permissible legal bounds under the National Labor Relations Act."
Further, "where the refusal to bargain is one of the causes of a strike, the burden
rests upon the employer, so refusing to bargain, to show that the strike would have
taken place even if he had not refused to bargain." 53
The findings hereinafter made with reference to violation of Section 8 (a) (3) of the
Act are based on the finding that this was an unfair labor practice strike. (Even
18 Kerrigan Iron Works, Inc, 108 NLRB 933 Distinction is noted in Consolidated West-
ern Steel Corporation, et at., 108 NLRB 1041, where it was held that distribution of termi-
nation slips to strikers may be only a "tactical maneuver," but not where they are in
fact discharged
'" Cf. Ame7scan Rubber Pioduot8 Corp., 106 NLRB 73.
68 108 NLRB 245.
61 The history of the negotiations and this uncontradicted testimony persuade me that this
was an unfair labor practice ab enitao . The remedy would be the same, except for Brettin,
Juchum, Kauffman, and Tinkey, infra, if it was an economic strike originally and converted
to an unfair labor practice strike on April 21.
® 199 F 2d 319, 320-321.
51 N. L. It. B. V. Barrett Co ., 139 F. 2d 959, 961-962 ( C. A 7).
1330 DECISIONS.OF NATIONAL LABOR RELATIONS BOARD
were this an economic strike, reinstatement could be denied only where it appears that
the employee had failed to seek to return, had been replaced, or his job eliminated.)
It was stipulated that various employees "ceased work along with other employees on
March 20, 1953." I find that all of such employees were strikers. (Beyond the
formal terms of the answer, which left the legal conclusion to be drawn, no issue has
been raised in this connection. In the Company's brief, these employees are referred
to as strikers.)
As noted supra, the Company's statements by advertisement and letter are not
alleged to have violated Section 8 (a) (3).54 Such violation is alleged to have
occurred when the employees applied for reinstatement on or about May 4.
Before considering such applications and the action taken thereon, it may be
advisable to note again the defense waiver and the further defense that the settlement
between the Company and the Local governs the return of the alleged discriminatees.
The rights of strikers survive 55 any attempt to modify or waive them by a group other
than their certified representative. It is one of the purposes of the Act to protect such
rights absent the elements of estoppel or abuse of Board process; there has been no
claim that these latter elements are here present.
The right of unfair labor practice strikers to reinstatement on request is not limited
to unfilled jobs where there has been replacement by new employees. Further, the
burden being on the Company to justify failure to reinstate unfair labor practice strik-
ers on application, and since replacement is not justification, the settlement agreement
procedure of listing "employees who have been replaced or whose jobs have been
eliminated [emphasis supplied]" does not meet such burden.
Testimony that jobs were eliminated as unnecessary is limited to five benchhand
jobs in the toolroom. Therefore, and in the absence of explanation to the contrary
and of evidence that other jobs were lawfully and for economic reasons eliminated, we
must regard all other jobs as available to the returning strikers, considering their right
to reinstatement. Aside from absence of proof that other jobs were not available,
the Company's announcements and its action on rehiring some of the strikers later in
the year indicate that it failed to recognize fully its obligation to recall strikers after
they sought to return.
Received in evidence was a letter from the Company to employees who had not
yet returned to work: the employee is to report within 3 days if he wishes to return to
work for the Company; jobs are not available for all, but those so reporting and not put
to work will be placed on a list for a job (until July 31, 1953, according to the agree-
ment with the Local). Since as noted we are interested in this connection in the ac-
tion taken by the Company after employees reported, and not with the statements
issued by the Company, we need not concern ourselves with the 3-day deadline set or
nor with the later one of July 31. It does not appear that any employees were denied
jobs because of those deadlines. Those cases where seniority rights were denied will
be considered infra. In effect, we can look beyond the Company's letters as we
evaluate the action taken and the evidence with respect to each employee. Nor shall
we here rely on the Company's reference to "a job" as distinguished from the job
previously held.
Neither did the employees sleep on their rights: the International promptly filed an
amended charge which alleged discrimination against the employees. In all of this
the Company was not injured; it had been and remained under obligation to rein-
state the strikers. The question thus persists as alleged, whether any employees were
unlawfully refused reinstatement.
Let us here note the obvious: unfair labor practice strikers are entitled to restoration
to their jobs. It should be equally obvious that, having adopted methods of self-
help, the strikers must apply for reinstatement.56 Having rejected the Company's
claim that its agreement with the Local fulfilled its obligation to bargain, we cannot
consistently accept a portion of that agreement as recognition of applications to return
by the employees; to do that would smack of entrapment of the Company. The
agreements of May 2-5 stand or fall as one.
As we weigh the evidence concerning the various employees allegedly discriminated
against, we shall note those who returned to work, quit, or failed to report. There is
no evidence against any employee to warrant a finding that he engaged in illegal mass
picketing.
ss Cf N. L R B. v Clearfield Cheese Company, Inc., 213 F. 2d 70, 74 (C. A. 3).
55 Cf supra, at footnote 37.
as Such a situation is readily distinguishable from that of discriminatory discharge,
where the burden is on the employer to offer reinstatement. See footnote 60, infra.
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1331
1. Kauffman, Tinkey, Brettin, and Juchum
Kauffman was a B operator, benchhand, in the toolroom on the first shift at $1.75
per hour. When he reported on May 4, he was told that the Company was doing away
with some benchhand jobs. Questioned about other jobs, he said he was not in-
terested because of the lower rate which they paid. Substantially the same thing oc-
curred when Kauffman called 2 or 3 weeks later. Although he testified that "the
tool grinding job was offered" to him on this second visit, it appears from his testimony
rather that he was told that tool grinders would be needed and the jobs posted, and
that he would be called if needed. On July 24 the Company called him, but again
did not offer reinstatement to his former or equivalent employment. Although he
testified that he was not "offered any specific work" until July 24, it is clear that he
was not "interested" in lesser paying jobs and that he had so stated on May 4. Unless
his job or an equivalent was not in law available, the Company's duty to offer rein-
statement was not here met.
Tinkey was an A operator, benchhand, in the toolroom on the second shift at
$1.90. He reported on May 4 and was told his shift had been discontinued; also
that his job had been filled when he failed to return on April 20. When he reapplied
about the middle of May and asked for a tool grinding job, he was told that there
were no openings. He was called in during the last week in July and offered a
lower paying job on the drill press, which he refused, saying first that he did not
want a production job, and later that he would not accept the cut in pay; he was
told that no other job was open. Except for the question of elimination of his
job, we must find discrimination against Tinkey.
Brettin was a toolroom benchhand operator on the first shift at $1.90. Receiving
a letter and thinking that the strike was over, he worked 1 day during the strike.
When he reported on May 4, he saw his name on the replacement list. He saw
Barker, the personnel manager, on May 6, but was not offered any job until the
last week in July. On the latter occasion he was told that he "would never get
back in the toolroom," so he accepted a milling machine job which paid less, on
the second shift. He was assigned to 3 different kinds of work in 3 days, during
which he was unjustly criticized; on the fourth day he was "jumped on" by the
foreman, who threatened to put him back to grade B, at a lower rate. (He had
never before done the, type of work now being assigned to him.) He then decided
that before he "got beat down [he] better leave"; he picked his tools up the next
day. Later he testified that he had picked up his tools before this last short period
of employment, actually about the middle of May, when he learned that he no
longer had a toolroom job. Brettin's admitted inexperience on these new jobs
rules out constructive discharge, the question of reinstatement to his former job
aside. But that question remains, and the Company did not meet its obligation under
the Act.
Juchum was an A operator, benchhand, in the toolroom on the first shift at $1.90.
He reported on May 6, but was told that there was no job for him and that "the
chances were slim for his getting a job." On May 14 he said he would get another
job if the Company could not use him. This is not to be considered a resigna-
tion, nor did the Company so regard it, for on July 24 it called and asked him to
come in for other and lesser paying jobs. To this Juchum replied that he had a
higher paying job and "was not interested in coming back" to the Company.
Although Seymour, works manager at the time of the strike, testified that it was
decided to eliminate 5 of the 12 benchhand jobs,57 the exhibits received indicate
that 5 of the strikers returned to these jobs during the strike and 3 returned on May 4,
for a total of 8. The latter three were senior to all of the others. Next in order
of seniority had been Brettin, Juchum, and Kauffman, who were followed by two
who had returned during the strike, Wertenberger and Bates. Tinkey followed,
and then three who had returned during the strike.
In addition to the settlement and contract references to seniority, we have Sey-
mour's testimony that the jobs open on May 4 were filled according to seniority;
there is no issue about recognition of seniority and its use in determining employees'
relative rights. Seymour also testified that those who had remained during the
strike were retained despite their relative lack of seniority, only those jobs which
returning strikers had not `yet filled being regarded as open.
67 Seymour grouped these jobs without distinction although there were differences in
rates paid. The General Counsel has likewise referred to them by type only. I adopt that
pattern, and shall consider them as benchhand jobs without distinction.
1332 DECISIa S O ' NATIONAL LABOR RELATIONS BOARD
Brettin , Juchum , and Kauffman were entitled to the places filled by the three
at the bottom of the seniority ladder, and in fact had priority over Wertenberger
and Bates . The violation here is clear since those returning during the strike were
not entitled by that fact alone to priority over strikers who reported at the termina-
tion of the strike. Prior to Juchum's withdrawal on July 24, Tinkey alone of the
benchhand claimants had not been discriminated against , the need for elimination of
some of these jobs not being in issue There is no evidence of transferability be-
tween departments. There was thus no obligation on the Company to offer Tinkey
a job elsewhere regardless of his experience and qualifications. But he was the eighth
benchhand in order of seniority after Juchum's withdrawal on July 24, and the
failure to offer him other than another and lesser paying job during the last week
in July was discriminatory. In view of the testimony that there were only 6 or 7
such jobs at the time of the hearing, reinstatement of Tinkey will not be recom-
mended. He should be made whole for any loss suffered after July 24, 1953, and
until elimination of a job would have warranted his discharge
2. Bahn, Brady, Gisinger, Snyder, and Westfall
Bahn, Brady, Gisinger, and Snyder reported for work on May 4, and Westfall
on May 6; but they were never offered reemployment. In the absence of evidence
that their jobs were eliminated, we can consider only the defense that these employees
were replaced. But, as noted supra, that defense is insufficient.
3. Jeffries and Cadmus
Jeffries and Cadmus reported for work on May 4, but were not then or later
reemployed until August 31, 1953, and December 3, respectively, when they were
hired as new employees without seniority. It does not appear that they were
assigned to different work than that which they had done before the strike, but
as new employees they did not receive the 15-cent pay increase which they would .
otherwise have received. The remedy of reinstatement in their case will include,
as the equivalent of their former employment, full seniority together with payment
of the increase in their hourly rate.
4. Bittner, Daly, Ross, and Moutoux
Bittner, Daly, Ross, and Moutoux reported on May 4, but did not get back on
the job until June 3, 18, 22, and 29, respectively. No explanation was offered
for the delay.58
5. Boyes
Boyes was an advance learner, at $1.45. He reported on May 4 and resumed
work on June 29 as a B operator, drill press, at $1.55. There is no evidence that
his new job is less desirable than or not substantially equivalent to the former except
for the difference of 5 cents per hour including the general wage increase. Boyes
should therefore be reinstated at the higher rate in addition to being made whole
for any loss suffered between May 4 and June 29 and,, because of the lower rate,
thereafter.
6. Fittler
Fittler reported on May 4 and resumed his former job with full seniority on May
11 but on the second shift , whereas he had been employed on the first shift prior to
the strike. He returned to the first shift on September 28. While it appears that
he is entitled to be made whole for any loss suffered between May 4 and 11, and I
shall so recommend , General Counsel in his brief states that Fittler was rehired on
May 4 . If the latter statement be correct and the stipulation on the record in error,
no remedy is here applicable , the shift change having been corrected; the finding of
discrimination shall stand.
7. McKee
McKee resumed his former job on May 4 and his full seniority was recognized on
May 11 . He was assigned to the second shift , however, instead of to the first, where
68 Cf. Universal Food Service, Inc., 104 NLRB 1, 16.
WOOSTER DIVIbION OF BORG-WARNER CORPORATION 1333
he had worked prior to the strike. Although the discrimination is found, McKee
lost his right to reinstatement to the first shift when he quit on June 10. In the ab-
sence of evidence that he quit because of the discrimination in shift, I shall make no
recommendation for relief in McKee's case.
8. Ostrom
Ostrom resumed work on May 4 but at a different job and at the rate which he
had previously received, which did not include the 15-cent general increase. He was
restored to his original job at the full rate on October 26, thus losing only 15 cents
per hour between May 4 and October 26.
9. Patterson
Patterson was a leadman on the first shift at $1.55. He reported on May 4 and re-
turned to work on July 15, being hired as an A operator on the second shift, although
he worked on the first shift for the first week on that job. He then accepted a trans-
fer to leadman on the second shift on condition that it would not "interfere in any
way with [his] getting on days." In November, with his elevation to the presidency
of the Local, he requested transfer to the first shift and, told that no leadman posi-
tion was available, requested and received work as an operator. As an A operator,
during both the earlier and later periods, Patterson received 15 cents per hour less
than he would have as leadman. He is entitled to reinstatement at the higher rate
and to be made whole for loss suffered between May 4 and June 15 and, because of-
the lower rate, thereafter.
10. Poulson
Poulson, a setup man, returned to work on May 4 as an A operator at 15 cents
an hour less than his former job now paid. His loss is measured by the change ins
classification and the wage difference.
11. Totten
Totten was an advance learner at $1.45. He reported on May 4 and resumed..
work on June 29 as a B operator, drill press, at $1.55. He should be made whole for--
any loss suffered between May 4 and June 29 and, because of the lower rate, there-
after until July 13, 1953. It was stipulated that he quit on the latter date. The_
reason for such quitting not being shown, whatever right he may have had to restora-
tion to his former classification was then terminated.
12. Treece
Treece was a B operator at $1.50 per hour. He reported on May 4 and returned
to work as a sweeper on July 27 at $1.35. He is entitled to restoration to his former-=
classification, and to be made whole for any loss of pay suffered between May 4 and
July 27 and, because of the lower rate, thereafter.
13. Baird
Baird was an advance learner, grinder, on the first shift at $1 . 35 per hour. When
he reported on May 4 he was told that nothing was available for him. On July 11
the Company called and offered him his old job, but on the second shift, and he ex-
plained that he was "not interested in employment on the second shift as he had a
boys' baseball team he was interested in during the early evening hours, and also
went to prayer meeting every Wednesday night." That relative seniority was con-
sidered by departmental groups and was therefor not affected by a change in shift,
as noted by the Company in this connection, does not obliterate the fact of the
shift difference . 60 Baird was never offered that reinstatement to which he was en-
titled.
14. Burnett
Burnett was a chucker, A operator, on turret lathes, first shift, at $1.65. When he
reported on May 4 he was told that there was no work for him and that he would be .
called if there were an opening before July 31. The Company called him on July
19 Htilley Plywood Company, Inc., 94 NLRB 932, 934.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13, and offered a different job on the second shift . Burnett explained that "he
could not work nights as his wife worked nights, and he had to stay home with the
children." Here again was no offer of reinstatement.
15. Crisco
Crisco was an advance learner , turret lathes , on the first shift at $ 1.40. He re-
ported on May 4 and was told that no work was then available for him. The Com-
pany called him on July 2; he reported on July 6, when he was offered an apparently
acceptable job at a proper rate, but on the second shift. He refused to work on that
shift. He applied again in September, and on October 1 was hired for his old job,
first shift, at full pay but as a new employee without seniority. "Some time later"
he was transferred to the night shift at his own request. As in Baird's case, the
Company argues that the job offered Crisco was "substantially equivalent employ-
ment"; this is emphasized here by Crisco 's later request for transfer to the second
shift. Again I find that the offer earlier made to him was not of a substantially
equivalent job. Nor is there evidence that in July Crisco regarded it as equivalent
and capriciously refused it . Reinstatement in Crisco 's case will include full senior-
ity, and he is entitled to be made whole for any loss of pay suffered between May 4
and October 1.
16. Frease
When he reported on May 4, Frease was told that there was no opening for him.
The Company called him on or about July 24 and offered him another job at a lower
rate and on the second shift. (His former job had been on the first shift.) He ex-
plained that his wife did not want him to work nights. As in the case of Burnett,
definite and sufficient objection for one reason does not imply waiver or acceptance
.of other conditions, i. e., different job and lower rate.
17. Lance
Lance reported on May 8 and was told that he had been replaced. Asked whether
he would take a different job at a lower rate, he replied that he wanted only an elec-
trician's job. (He was an A operator, electrician.) On or about July 24 the Com-
pany called and offered him several lower paying production jobs, which he again
refused for the previously stated reason. None of these offers was of substantially
equivalent employment.
18. Haidet
Haidet reported on May 4, and was told that he had been replaced. The Company
called him on July 10, and he went in on July 11, when he was offered a different job
on the second shift, but at his former rate plus 15 cents and the shift differential. He
explained that he was working elsewhere and asked for a few days to think it over.
When he returned, he said that he would not accept the job, that when he told Crater
Motors of the Respondent 's offer , Crater Motors gave him a guaranteed weekly salary
plus commissions and that he did not want to work nights. He asked Mr . Barker
"if there was any chance of getting on days later in his old department . . ." State-
ment of two possible reasons, one of attractive terms elsewhere , and the other of an
undesirable condition on reinstatement , opens the door to argument concerning the
reason for rejection of the Company's offer. Under such circumstances I would not,
ignoring the reference to the other employment, find that the Company's offer was
rejected because of the shift condition. But the additional query concerning the possi-
bility of day work would indicate that the rejection was in fact based on the shift
.element. The uncertainty is underscored by the General Counsel's statement that he
does not know whether Haidet would have accepted a job on the day shift despite the
salary guarantee elsewhere. (Haidet did not testify. As with most of the other alleged
-discriminatees, the evidence here was received by stipulation.) Under the circum-
stances, as I stated on the record , I will not find that the offer to Haidet was inade-
quate. His period of loss, if any, was thus terminated on July 11, 1953.
19. Jordan
Jordan moved from Wooster about March 30, 1953 , not notifying either the Com-
pany or the post office of his new address . It was stipulated that he received some
letters from the Company , and we can only speculate that they "may have been for-
,warded to him from Wooster in some way ." It was further stipulated that he knew of
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1335
the strike termination, but has never reported back to the plant. The Company on
MayA sent him a registered letter, addressed to him in Wooster at the last address
shown on the company records, advising him of the termination of the strike and re-
questing him to return; this letter was returned as undeliverable. Even if a reinstate-
ment letter is not an "offer" if not delivered,60 the burden of offer, as noted supra,
was not on the Company. As did other strikers, Jordan should have reported for
work after the strike; his failure to do so constituted an abandonment. I find no
discrimination here.
20. Myers
Myers reported on May 4 and was told that his job had been eliminated; there
might be an opening later. The Company called him on July 27 and offered another
job at a lower rate. Myers "said he thought he would stay at Koontz' Nursery, where
he was then working, and which he liked very much." Whether the attractiveness
of the new employment was based on the lower rate now offered him, we will not
speculate . I find no discrimination against Myers after June 27.
21. McHenry
On May 4, McHenry was told that his job had been eliminated. On July 24 the
Company advised him that several lesser paying production jobs were open, but he
replied that he was not interested in them, declining to come to the plant to discuss
them. No offer of substantially equivalent employment was made to McHenry.
22. Snoddy
When he reported on May 4, Snoddy was told that there were no openings for him
at that time. About July 24, the Company called and suggested another and lower
rate job. Snoddy replied that he was interested only in his old job at the old rate plus
the increases. When he inquired concerning second shift (he had worked on the first
shift) openings and rates, Barker told him to come in. Snoddy came in at 8 a. m. on
July 25, was told that Barker would be in soon , and was asked to wait. He refused
to wait, explaining that he was helping his father to farm and that he did not see any
point in waiting. It is clear that Snoddy's farming activities did not at that time make
him unavailable for employment; he had inquired the day before and had come in.
(Subsequent availability can be considered in connection with compliance.) As for
whether or not there was "any point" in waiting, resort to fundamentals will indicate
where obligation lay. Snoddy on May 4 met the requirement that he report for work.
The Company's offer of July 24 did not fulfill its responsibility. Nor was the sug-
gestion that Snoddy come in on July 25 an offer.61 Asking him to wait neither con-
stituted an offer nor obliged him further to remain in the hope that one might be
forthcoming. If on May 4, July 24, or thereafter the Company had available a job
suitable for proper offer, it was incumbent on it to make such offer. Failing to do so,
whether or not a job was available under the circumstances herein, the Company
continued in its liability.
23. Stanford
On May 4, Stanford was told that Company had nothing for him. He again in-
quired about June 5, and Barker told him that he did not know whether he would be
called back or when. Stanford "thereupon quit his job and delivered a signed quit
slip to Mr. Barker." We need not grope for Stanford's motive or his purpose in quit-
ting. By that act, he relieved the Company of obligation to him beyond June 5.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section II, above, occurring in connec-
tion with the operations 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 commerce and the free flow of
commerce.
IV. THE REMEDY
Since it has been found that the Company has engaged in and is engaging in cer-
tain unfair labor practices affecting commerce, I shall recommend that it cease and
60 Jay Company , Inc., 103 NLRB 1645.
61 Arrow Photo Service, Inc., 108 NLRB 1424.
379288-56-vol. 113-85
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desist therefrom and take certain affirmative action in order to, effectuate the policies
of the Act.
It has been found that the Company refused to bargain collectively with the In-
ternational thereby interfering with, restraining, and coercing its employees. I shall
therefore recommend that the Company cease and desist therefrom and also, upon
request, bargain collectively with the International with respect to wages, hours, and-
other terms and conditions of employment and embody in a signed 'contract any
understanding reached.
It has been further found that the Company, by refusing to reinstate McKee and
the employees hereinafter named, discriminated against them in respect to their
hire and tenure of employment in violation of Section 8 (a) (3) of the Act. I shall
therefore recommend that the Company offer to Kauffman, Brettin, Bahn, Brady,
Gisinger, Snyder, Westfall, Jeffries, Cadmus, Bdyes, Patterson, Poulson, Treece,
Baird, Burnett, Crisco, Frease, Lance, McHenry, and Snoddy immediate reinstate-
ment to their former or substantially equivalent positions,62 without prejudice to
their seniority and other rights and privileges, dismissing if that be necessary any
replacements hired; if, because of a change in the Company's operations, there are
insufficient positions remaining for all these employees, the available positions should
be distributed among them without discrimination because of their union member-
ship or activity, following such system of seniority or other nondiscriminatory prac-
tice as heretofore has been applied in the conduct of the Company's business. Those
for whom no employment is available after such distribution should be placed on a
preferential hiring list for all jobs for which they are qualified, with priority deter-
mined among them by such system of seniority or other nondiscriminatory practice
as heretofore has been applied in the conduct of the Company's business, and there-
after in accordance with such list should be offered reinstatement as positions be-
come available and before any other persons are hired for such work.63 The Com-
pany shall also make whole 64 the employees so named for any loss of pay they may
have' suffered by reason of the discriminatory action aforementioned by payment to
each of them of a sum of money equal to that which he would normally have earned
less his net earnings 65 which sum shall be computed 66 on a quarterly basis during
the period from the discriminatory refusal 67 to reinstate to the date of a proper
offer of reinstatement. The Company shall further make the following employees
whole for any loss of pay so suffered during the respective periods: Bittner, Daly,
Ross, Moutoux, Fittler, Ostrom, Totten, Haidet, Myers, and Stanford from May 4,
`1953, to June 3, 18, 22, and 29, May 11, October 26, July 13 and 11, and June 27
and 5, 1953; Juchum from May 6 to July 24, 1953, and Tinkey from July 25, 1953,
to the date of elimination of his'job as explained supra. It is also recommended
that the Board order the Company to make available to it upon request payroll and
other records to facilitate the checking of the amount of back pay due.68
It has been further found that the Company, by solicitation of employees to aban-
don the strike and by threat of loss of employment unless they abandoned the strike,
interfered with, restrained, and coerced its employees in violation of Section 8 (a)
(1) of the Act. I shall therefore further recommend that the Company cease and
desist therefrom.
The unfair labor practices found herein indicate a purpose to limit the lawful
concerted activities of the Company's employees. Such purpose is related to other
unfair labor practices, and it is found that the danger of their commission is rea-
sonably to be apprehended. I shall therefore recommend a broad cease and desist
order, prohibiting infringement in any manner upon the rights guaranteed in Section
7 of the Act.
62 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827. Reinstatement of Jeffries, Cadmus, Boyes, and Patterson shall include
grant of a rate of pay which will at least equal their respective rates immediately prior
to the strike plus the general 15-cent increase.
62 Central Kentucky Broadcasting Company, 93 NLRB 1298, 1299, 1309
ss This term shall include payment of the 15-cent general wage increase and, where ap-
plicable, the 6-cent shift differential.
Oi Crossett Lumber Company, 8 NLRB 4440. See also Republic Steel Corporation i.
N. L. R. B., 311 U. S. 7.
w F. W. Woolworth Company, 90 NLRB 289, 291-294.
07 May 4, 1953, is the date of refusal in each of these cases except Westfall's and Lance's,
which are May 6 and 8, respectively. Crisco's reinstatement covers seniority only, and his
loss of pay ended on October 1, 1953
° F. W. Woolworth Company, supra, at 294.
WOOSTER DIVISION OF BORG-WARNER CORPORATION 1337
For the reasons stated in the subsection entitled "The alleged violation of Section
8 (a) (3)," 1 shall recommend that the complaint be dismissed insofar as it alleges
the discriminatory refusal to reinstate Jordan.
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. International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, CIO, and Local Union No. 1239, International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America, CIO, are sev-
erally labor organizations within the meaning of Section 2 (5) of the Act
2 All production and maintenance employees at the Company's Wooster, Ohio,
plant, including plant clerical employees, stock and tool handlers, excluding all pro-
duction control department employees, industrial and product engineering depart-
ment employees, statistical quality control department employees, timekeepers,
checkers, laboratory employees, all office employees and office clerical employees,
nurses, professional employees, guards, and watchmen as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
3. International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, CIO, was on December 18, 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 International Union, United Automo-
bile, Aircraft & Agricultural Implement Workers of America, CIO, as the exclusive
representative of the employees in the appropriate unit, Wooster Division of Borg-
Warner Corporation has engaged in and is engaging in unfair labor practices with-
in the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Mildred
Bahn, Peter Baird, Ola Bittner, Henry Boyes, Rosanna Brady, George Brettin, Don-
ald Burnett, Helen Cadmus, Clinton Crisco, Bernadine Daly, Harry Fittler, Dorrance
Frease, Margaret Gisinger, Paul Haidet, Helen Jeffries, Michael Juchum, David
Kauffman, Henry Lance, Richard McHenry, Harold A. McKee, Merrill Moutoux,
Charles Myers, Robert Ostrom, Wayne W. Patterson, Albert Poulson, Robert Ross,
Wesley Snoddy, Dorothy Snyder, Clifford Stanford, John Tinkey, Wallace Totten,
Emmett Treece, and Clara Westfall, thereby discouraging membership in a labor
organization, the Company has engaged in and is engaging in unfair. labor practices
within the meaning of Section 8 (a) (3) of the Act.
6. By such refusal to bargain and discrimination and by soliciting its employees to
abandon a lawful strike and threatening loss of employment unless they abandoned
the strike, thereby interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
7. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
8. The Company has not engaged in unfair labor practices within the meaning
of the Act by failing to reinstate Warne E. Jordan.
[Recommendations omitted from publication.]
SCHEDULE A
Mildred Bahn Dorrance Frease George D. Orr
Peter Baird Margaret Gisinger Robert Ostrom
Ola Bittner Paul Haidet Wayne W. Patterson
Henry Boyes Helen Jeffries Albert Poulson
Rosanna Brady Warne E. Jordan Robert Ross
George Brettin Michael Juchum Wesley Snoddy
Donald Burnett David Kauffman Dorothy Snyder
Helen Cadmus Henry Lance Clifford Stanford
Clinton Criso Richard McHenry John Tinkey
William Dilgard Harold A. McKee Wallace Totten
Bernadine Daly Merrill Moutoux Emmett Treece
Harry Fittler Charles Myers Clara Westfall