INTERNATIONAL UNION, ETC. v. National Labor Rel. Bd., 11562.

• Decision Date: 11 April 1956
• Docket Number: No. 11562.,11562.
• Citation: 231 F.2d 237
• Parties: INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

231 F.2d 237 (1956)

INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 11562.

United States Court of Appeals Seventh Circuit.

March 20, 1956.

Rehearing Denied April 11, 1956.

Harold A. Katz, Chicago, Ill., Irving M. Friedman, Jerome Schur, Katz & Friedman, Chicago, Ill., Harold A. Cranefield, Detroit, Mich., of counsel, for petitioner.

David P. Findling, Associate General Counsel, John Francis Lawless, Attorney, National Labor Relations Board, Washington, D. C., Theophil C. Kammholz, General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Samuel M. Singer, Attorneys, National Labor Relations Board, Washington, D. C., for respondent.

Carl R. Miller, Decatur, Ill., Saul Cooper, Milwaukee, Wis., LeForgee, Samuels & Miller, Decatur, Ill., Seyfarth, Shaw & Fairweather, Chicago, Ill., of counsel, for intervening respondent.

Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO (herein referred to as petitioner or the CIO), has filed in this court a petition to review and set aside an order of the National Labor Relations Board (herein referred to as the Board or the respondent), dismissing a complaint issued upon a charge filed by petitioner against the Borg-Warner Corporation (herein referred to as the Company), following the usual proceedings under § 10(c) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., herein called the Act.¹ In the proceedings before the Board, the Company was the respondent, and Local 979 of the International Union, United Automobile Workers of America, A. F. L., herein also referred to as the AFL, intervened and appeared as a party to an allegedly unlawful contract with the Company. Marvel-Schebler Products Division, Borg-Warner Corporation intervened as respondent.

On March 11, 1954, the CIO filed a charge with the Board alleging the commission of unfair labor practices by the Company. On November 2, 1954, the general counsel of the Board issued a complaint and notice of hearing, charging the Company with violations of sections 8(a) (1) and 8(a) (2) of the Act. The CIO was named in the caption of the complaint, as was the Company, and AFL was named in the caption, as party to an allegedly illegal contract.

The complaint alleged in substance that the Company had unlawfully recognized and entered into a collective bargaining contract with the AFL as bargaining agent for the Company's employees in a new transmission plant, although at the time of the making of the contract no employees had yet been hired, and the new plant was not yet in operation. Further, it alleged that the contract unlawfully required that all new employees to be hired in the new plant become members of the AFL, and that any employees who were previously members of the AFL would be required to remain members, as a condition of employment. The complaint further charged that the Company entered into the contract with the AFL on March 16, 1954, after the Company knew that the CIO claimed to represent the Company's employees; that notice of the filing of the CIO's charge, and a direct communication from the CIO had previously been received by the Company. The same contract between the Company and the AFL covered employees already employed in an existing carburetor plant of the Company, and the alleged illegal provisions had been extended to cover also the employees who in the future would be hired in the new plant, and was by its terms effective for a period of two years. The complaint further alleged that the Company, by granting compulsory union membership to the AFL in this contract, along with full recognition as bargaining agent, for employees not yet hired, in a plant still under construction, interfered with, restrained and coerced its employees in the exercise of their rights under the Act, and constituted unlawful assistance to the AFL. An answer was filed by the respondents denying the commission of unfair labor practices.

Certain pertinent facts are based on stipulations entered into between the general counsel, the Company and the AFL.² They are summarized below.

In 1951, following a Board-conducted election, the AFL was certified by the Board to be the statutory collective bargaining representative for all production and maintenance employees at the Marvel-Schebler Division, Borg-Warner Corporation plant, Decatur, Illinois. Thereafter the Company and the AFL entered into three successive bargaining contracts which were made applicable to all of the Marvel-Schebler Division's production employees, the last of which was signed on March 16, 1954. It renewed the union-security clause. The entire contract by mutual agreement was made applicable to employees subsequently hired in a new building (called Building B) which was to house a new automatic transmission department.

The application of the collective bargaining agreement to the new department conformed with the prior practice of the Company and the AFL. Thus, when Marvel-Schebler Products Division was first established in 1950 it manufactured carburetors only. In October of that year a decision was made to establish a jet-engine pump department. Although actual pump production did not begin until April 1951, the collective bargaining agreement executed by the Company and the AFL in February 1951 was treated as covering employees later hired in the jet pump department. In November of that year, the Company also opened a power brake department, and the parties interpreted their contract of the preceding February as applicable to the employees hired for this department. Similarly, employees in the hydraulic pump department, first established in the summer of 1952, were deemed to be covered by the existing contract which the Company and the AFL had signed the previous February.

The transmission department in Building B is located on a tract contiguous to the land on which the other departments are located. Because of the topography of the land, fire hazards and traffic conditions the building was located 800 feet from the other existing buildings. All of the plant properties are enclosed by a common fence and there is one common entrance from the highway to the property.

By September 1954, there were about 160 employees in the transmission department of whom 101 had at one time or another worked in the old buildings. Thus, prior to March 16, 1954, when the contract in question was signed, approximately 41 employees were engaged in the old buildings in tooling up and other preparatory work in connection with transmission manufacturing. The first employees went to work in Building B on March 31, but actual production did not begin there until May of 1954. During the period from May through September 10 the Company hired 79 employees to work in the new building.

The skills employed in the making of the automotive components already in production readily lent themselves to the manufacture of the new automatic transmissions. One man was in charge of training both groups of employees. Of the 29 jobs connected with transmission production, 21 are substantially the same as those found in the manufacture of carburetors, jet engine pumps, power brakes, or hydraulic pumps in the other departments of the plant. The remaining 8 involve operations which to varying lesser degrees are also duplicated in the older departments.

The Company's labor relations are under the direction of one man. There is one employment office through which employees for all departments are hired and one payroll section for the entire plant. All of the different products manufactured by the Company are tested in one laboratory which is now located in the new building; formerly this laboratory was in one of the original production buildings. All employees are covered by the same health and welfare program. The same medical staff renders medical care and gives physical examinations to all the employees and one nurse furnishes first aid to an employee injured in any of the departments or buildings. The same safety rules and regulations apply to all production and maintenance employees in all departments in all buildings. There is a common water supply, sewage system and electricity system for all buildings and one switchboard serves all telephones on the property. The same badge system is used to identify all employees and all of the guards are under the direction of one captain. There is one fire brigade and one fire protection system for combatting fires in any place on the company premises.³

By an order dated November 12, 1954, the hearing which was originally scheduled for November 22, 1954, was set down for January 4, 1955.

In an off-the-record discussion held on the first day of the hearing (January 4), the parties including the general counsel, counsel for the company, and the attorneys for the AFL and the CIO, discussed the possibility of stipulating to certain facts in lieu of adducing testimony of witnesses. According to the representative of the general counsel during these negotiations he stated that if agreement could be reached on the proposed stipulations of fact, the general counsel's case in chief would be complete and would be rested. Mr. Friedman, counsel for the CIO indicated, however, possible disagreement with some of the stipulations offered by the general counsel.

At the hearing held the next morning (January 5), the general counsel offered in evidence a series of stipulations signed by counsel for the Company and the AFL. Counsel for the CIO agreed to only...