Borg-Warner Corp., 152 (1962)

  1. National Association of Broadcast Engineers and Technicians , CIO, was, on December 30, 1952, and at all times since has been the exclusive representative within the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for the purposes of collective bargaining.

  2. By refusing to bargain collectively with National Association of Broadcast Engineers and Technicians, CIO, as the exclusive representative of the employees in the appropriate unit, KTRH Broadcasting Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.

  3. By such refusal - to bargain and by interrogating and threatening its employees concerning union affiliation and activities, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.

  4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act.

    [Recommendations omitted from publication.] Borg-Warner Corporation and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO and Local No. 979, of the International Union,

    United Automobile Workers of America, AFL, Party to the Contract. Case No. 13-CA-1685. July 13, 1955 DECISION AND ORDER

    On March 22, 1955, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent, the Charging Union, hereinafter called the CIO, and the Party to the Contract, hereinafter called the AFL, each filed exceptions to the Intermediate Report. The Respondent and the AFL each filed a brief and the CIO filed a statement in support of the Intermediate Report, in which it also preserved certain exceptions to rulings of the Trial Examiner.

    The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and for the reasons set forth below has decided to dismiss the complaint in its entirety.' The Trial Examiner found that the Respondent violated Sections 8 (a) (1) and (2) of the Act by including the prospective employees of its newly established transmission department in building B within I The Respondent's request for oral argument is hereby denied as the record and briefs adequately present the issues and the positions of the parties.

    113 NLRB No. 18.

    BORG-WARNER CORPORATION 153 the coverage of its union-security contract with the AFL for the production and maintenance employees of Respondent's existing facilities at a time when no employees had yet been hired for the transmission department. The Trial Examiner found that the employees of the transmission department did not constitute an accretion to the existing unit of production and maintenance employees, but that they could be represented either as a separate appropriate unit or as part of the existing unit, and were therefore entitled to a self-determination election in which to decide whether they wished to be separately represented. He concluded that in these circumstances Respondent's execution of union-security provisions applicable to the employees of the transmission department before the group came into existence, and the application of the provisions thereafter, coerced those employees in their choice of representatives in violation of Section 8 (a) (1).

    He further concluded that this conduct violated Section 8 (a) (2) because the Respondent was aware of the Section 8 (a) (2) charges previously filed by the CIO with respect to the employees of the transmission department, and therefore had knowledge of a rival union claim at the time it contracted with the AFL.

    Unlike the Trial Examiner, we find that the newly hired employees of the transmission department constituted an accretion to the established production and maintenance unit. The Trial Examiner's finding that they could constitute a separate appropriate unit was based on 'the fact that [the transmission department] was established to manufacture a new product and housed in a separate building . . . the absence of bargaining history . . . and the substantial number of distinct and different job classifications in the new department.' However, we do not agree that the stipulated facts establish that there were significantly distinct and different job classifications in the new department. It was stipulated that 21 of the 29 classifications in the transmission department were substantially the same as classifications employed in the Respondent's other operations, and that the remaining 8 classifications involved skills which were duplicated 'in varying degrees' in classifications in the Respondent's other operations. It was also stipulated that manufacturing processes in connection with transmissions are occasionally performed in the old buildings. These facts clearly indicate the existence of a considerable degree of similarity between the skills and manufacturing processes required in the manufacture of transmissions and the Respondent's other products.

    In view of the similarity of skills and manufacturing processes required throughout Respondent's operations, and the additional factors described in the Intermediate Report, such as the centralized control of labor relations and hiring, uniformity of wages, hours, and working conditions, the fact that the new department was staffed with a substantial number of transferees from Respondent's other operations, and the proximity of the new building B to the other buildings within the same fenced area, we find that the newly hired employees of the transmission department constituted an accretion to the existing production and maintenance unit. As an accretion to an existing unit, these emplcyees would not, under established Board policy, have been accorded a self-determination election.2 Accordingly, the Respondent's extension of its union-security contract with the AFL to those employees in the circumstances of this case did not violate Section 8 ( a) (1) or (2) of the Act. In so finding, we reject the Trial Examiner's finding that the filing of the charges by the CIO prior to the execution of the contract was sufficient standing alone to establish the CIO as a rival union for representation of the employees in question. Furthermore, in the factual context of this case, we find the Trial Examiner's discussion of Zia Company, 108 NLRB 1134, inapplicable to the determination of the issues herein.

    As indicated in the Intermediate Report, the Trial Examiner received certain stipulations of fact between the General Counsel, the Respondent, and the AFL, in which the CIO refused to join. Although the CIO urges adoption of the Trial Examiner 's findings as they are favorable to its position, it preserves an exception to the use of those portions of the stipulations in which it did not join as a basis for findings contrary to those of the Trial Examiner. We find no merit in this exception. The General Counsel, who is charged with primary responsibility for prosecuting the case, may properly enter appropriate stipulations with adverse parties concerning facts relevant to prosecution of the complaint which his investigation discloses, subject of course, to the right of a charging party to introduce contrary evidence, or to adduce additional facts which, in its opinion, are material. In this case, the record indicates that the CIO was prepared to do neither. Indeed it did not even assert that the stipulations were inaccurate, but merely refused to join in certain portions which related to the AFL's representative status in the preexisting unit and certain physical characteristics of the transmission department. The Marine Engineers' Beneficial Association case,3 relied on by the CIO , does not support its exception , as it deals only with a charging party's right to a hearing after a complaint has issued in lieu of a settlement agreement to which it does not consent. We further find that the Trial Examiner did not err in denying the CIO a second continuance in order to subpena officials of the Respondent.

    As the Trial Examiner indicates , the CIO had made no effort to subpena any of these witnesses in the 2-month period that elapsed be2 Saco-Lowell Shops, 107 NLRB 590, Bulova Research and Development Laboratories,

    Inc., 110 NLRB 1036

    Marine Engineers' Beneficial Association v n L. R B , 202 F 2d 584 (C. A. 4).

    BORG-WARNER CORPORATION 155 tween the issuance of the complaint and the hearing, and had not even talked with any of these individuals and consequently had no knowledge of what testimony they might give if called as adverse witnesses.

    In these circumstances, the CIO's offer of proof was patently inadequate and therefore properly rejected. The Trial Examiner's denial of the CIO's motion for a continuance is therefore affirmed.

    On the basis of the foregoing findings and reasons, we shall dismiss the complaint.

    [The Board dismissed the complaint.] MEMBER LEEDOM took no part in the consideration of the above Decision and Order.

    INTERMEDIATE REPORT

    STATEMENT OF THE CASE

    This proceeding, brought under Section 10 (b) of the Labor Management Relations Act of 1947, 61 Stat. 136 (herein called the Act), was heard in Decatur,

    Illinois, on January 4 and 5, 1955, pursuant to due notice to all the parties. The complaint, issued on November 2, 1954, by the General Counsel of the National Labor Relations Board,'...

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