Lancaster Foundry Corp.

National Labor Relations Board - Board Decisions

Nov 20, 1947

75 N.L.R.B. 255 (N.L.R.B. 1947)

In the Matter of LANCASTER FOUNDRY CORPORATION and INTERNA-
TIONAL MOULDERS AND FOUNDRY WORKERS UNION OP NORTH AMER-
ICA, A. F. L.
Case No. 9-C-0239.-Decided November 00, 1947
1M1r. Allen Sinsheimer, Jr., for the Board.
Burr, Porter, Stanley and Tressinyer, 1^y Mr. Ralph E. Weaver, of
Columbus, Ohio, for the respondent.
Mr. Louis D. Kah, of Columbus, Ohio, for the Union.
DECISION
AND
ORDER
On October 10, 1946, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
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. Thereafter, the Board's attorney
and the Union, but not the respondent, filel exceptions to the Inter-
mediate Report and supporting briefs. On February 25, 1947, the
Board heard oral argument at Washington, D. C. The respondent
and the Union appeared and participated in the oral argument.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, for the following reasons:
1. The Trial Examiner found, on the basis of certain credibility
determinations, that the employees listed in "Appendix B" attached
to his Intermediate Report either had been lawfully discharged or
had voluntarily quit their employment. Both the Board's attorney
and the Union have excepted to this finding, primarily on the ground
that the Trial Examiner incorrectly resolved questions of credibility.
75 N L. R. B., No. 33
255
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A Trial Examiner has the opportunity of observing the demeanor
of witnesses who are testifying; the Board has not. The Board there-
fore attaches great weight to the credibility findings of a Trial Exam-
iner and will not overrule them unless they clearly appear to be
unreasonable., We are satisfied that the credibility findings of the
Trial Examiner herein are not unreasonable; they are therefore
affirmed. Inasmuch as the Trial Examiner's finding that the em-
ployees listed in "Appendix B" had not been discriminatorily dis-
charged correctly follows from his resolutions of credibility, we also
affirm his finding. Accordingly, we shall dismiss the complaint, inso-
far as it alleges that these employees were discriminatorily discharged.
2. The Trial Examiner found that the respondent had unlawfully
refused to bargain with the Union on January 17, 1946,2 and had dis-
criminatorily discharged Mort Allen; he recommended that the re-
spondent be required to bargain collectively with the Union and to
reinstate Allen and make him whole for any loss of earnings. The
respondent has not excepted to these findings and recommendations.
In view of the fact that no exceptions have been filed to these findings
and recommendations, we adopt them without further comment.
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, Lancaster Foundry
Corporation, Lancaster, Ohio, and its officers, agents, successors, and
assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Moulders
and Foundry Workers Union of North America, A. F. L., as the ex-
clusive representative of all production and maintenance employees
at its Lancaster, Ohio, plant, excluding the superintendent and all
guards and supervisors, as defined in the Act; 3
(b) In any manner interfering with the efforts of International
Moulders and Foundry Workers Union of North America, A. F. L.,
to bargain collectively with it, as the exclusive representative of its
employees in the appropriate unit described above.
i Matter of Robbins Tire and Rubber Company , 69 N. L R B. 440 , Matter of American
Gear d Mfg Co , 69 N. L. R B. 663
' The Trial Examiner eironeously found that the refusal occurred on January 16, 1946
The respondent ' s amended answer admits that the refusal occurred on January 17, 1946,
and the Trial Examiner mentions this date in other parts of his Intermediate Report.
Trial Examiner's finding is corrected accordingly
The
'This is essentially the same unit found appropriate by the Trial Examiner . The de-
scription has been changed to conform to the amended Act.
LANCASTER FOUNDRY CORPORATION 257
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Moulders
and Foundry Workers Union of North America, A. F. L., as the ex-
clusive representative of all its employees in the aforesaid appropriate
unit, with respect to rates of pay, wages, hours of employment, and
other conditions of employment, and if an agreement is reached, em-
body such agreement in a signed contract;
(b) Offer Mort Allen immediate and full reinstatement to his former
or a substantially equivalent position, without prejudice to his seniority
and other rights and privileges;
(c) Make whole Mort Allen for any loss of pay he may have suffered
by reason of the respondent's discrimination against him, by payment
to him of a sum of money equal to the amount which he normally would
have earned as wages during the period from the date of his discharge
to the date of the respondent' s offer of reinstatement , less his net
earnings during such period;
(d) Post at its plant in Lancaster, Ohio, copies of the notice at-
tached to the Intermediate Report, marked "Appendix A." 4 Copies
of said notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being duly signed by the respondent's representa-
tive, be posted by the respondent 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 the said notices are not altered, defaced, or covered by
any other material;
(e) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the respondent discriminatorily
discharged the employees listed in "Appendix B" attached to the
Intermediate Report.
MEMBERS MURDOCIZ and GRAY took no part in the consideration of the
above Decision and Order.
' Said notice , however, shall be, and it hereby is, amended by striking from the first para-
graph thereof the words " The Recommendations of a Trial Examiner " and substituting
in lieu thereof the words "A Decision and Order " In the event this Order is enforced by
decree of a Circuit Court of Appeals , there shall be inserted before the words "A Decision
and Ordei " the words "A Decree of the United States Circuit Court of Appeals Enforcing "
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Allen Sansheimer, Jr., for the Board.
Mr. Ralph E. Weaver, of Burr, Porter, Stanley and Tresstnger, of Columbus,
Ohio, for the Respondent.
Mr. Loris D. Kale, of Columbus, Ohio, for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed January 24, 1946, by International Moulders and Penn-
dry Workers Union of North America, A F. L, herein called the Union, the
National Labor Relations Board, herein called the Board, by its Regional Director
for the Ninth Region (Cincinnati, Ohio), issued its complaint, dated July 2, 1946,
against Lancaster Foundry Corporation, Lancaster, Ohio, herein called the Re-
spondent, alleging that the Respondent had engaged and was engaging in unfair
labor practices within the meaning of Section S (1), (3), and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and notice of hearing were duly served upon the Respond-
ent and the Union.
With respect to the unfair labor practices the complaint alleged in substance :
(a) that the Respondent on January 16, 1946, discharged and thereafter refused
to reinstate 22 employees because of their membership in and activities on behalf
of the Union; (b) that on and after January 16, 1946, the Respondent refused to
bargain with the Union as the exclusive representative of its employees within
an appropriate unit; (c) that by the foregoing conduct the Respondent inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and more particularly within the meaning of
Section 8 (1), (3), and (5) of the Act.
On July 12, 1946, the Respondent filed an answer in which it denied that it had
engaged in any of the unfair practices alleged in the complaint; admitted that it
discharged its employees and refused to bargain with the Union but averred that
it did so for the reason that the Union breached its contract with the Respondent
and thereafter the Respondent abrogated the contract
Pursuant to notice a hearing was held at Lancaster, Ohio, on July 16, 17, and
18, 1946, before Louis Plost, the undersigned Trial Examiner, duly designated by
the Chief Trial Examiner. The Board and the Respondent were represented by
counsel and the Union by a representative. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties. The undersigned granted motions to amend
both the complaint and the answer. At the close of the hearing the undersigned
granted motion to conform the formal documents to the evidence as to variances
in names, spelling, dates and similar matters not substantive. An opportunity was
afforded all the parties to argue orally on the record and to file briefs with the
undersigned. Counsel for the Board and the Respondent argued orally A brief
has been received from the Respondent.
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, Lancaster Foundry Corporation, is an Ohio corporation having
its principal place of business at Lancaster, Ohio. The Respondent is engaged in
LANCASTER FOUNDRY CORPORATION 259
the manufacture of castings and related products. For use in the manufacture
of its products the Respondent in 1945 purchased raw materials consisting of
coke, pig iron and sand valued at approximately $37,000 of which 20 percent was
obtained from States other than Ohio. During the same period of time the Re-
spondent manufactured finished products valued at approximately $143,000. The
parties stipulated that almost all of the manufactured products of the Respond-
ent are delivered to the Hocking Valley Manufacturing Company of Lancaster,
Ohio, and used by this company in the manufacture of its product, and actually
becomes it part of such products, and that the Board in Case No. 9-R-2042 found
the Hocking Valley Manufacturing Company to be engaged in commerce within the
meaning of the Act.
II THE ORGANIZATION INVOLVED
International Moulders and Foundry Workers Union of North America, affil-
iated with the American Federation of Labor, is a labor organization admitting
employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACIICPS
A. Introduction
On January 16, 1946, while the Union and the Respondent were under con-
tract, certain of the Respondent's employees struck in violation of the terms of
the contract and were discharged. Thereafter before any of the discharged em-
ployees were replaced and while the plant.was in operation with employees not
participating in the strike and who were represented by the Union, the Respond-
ent refused to bargain with the Union,, contending that the breach of the contract
by its employees relieved it of any further obligation to recognize the Union.
B. The alleged discraninatoi p discharges
Some time prior to June 1, 1942, the Respondent recognized the Union as the
bargaining representative of all its production and maintenance employees exclu-
sive of supervisory employees, and on June 1, 1942, the Respondent and the Union
entered into a contract which was renewed troni year to year, the last renewal
to remain in effect until May 31, 1946.
The contract provides for a union shop, sets up grievance procedure, and pro
vides that pending the adjustment of any gtievance, complaint, or dispute be-
tween the parties neither party shall discontinue operations
The contract further provides :
The Union agrees the employer shall have the right to hire employees
who are not, members of the Union, provided such employees shall pay twenty
five percent (25%) of their wages to the Union, until either initiation or
reinstatement fee has been paid
In practice an employee who was delinquent in any payment to^ the Union
called at the Respondent's ollice together with the Union shop committee and
authorized the Respondent in writing to withhold the amount of the indebted-
i.ess to the Union from his pay There is uncontradicted evidence in the record
that at one time or another fully 75 percent of the Respondent's employees had
.inthotized such withholdings to cover delinquent Union dues
The Union is composed of employees of the Respondent and another local
foundry During the time material herein none of the einplovees of the Re-
spondent were Union officers Tile relationship between the Union and the
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had been harmonious and prior to the incidents hereinafter discussed
no serious difficulty had even arisen between them.
Ray Hines, chairman of the Union shop committee, testified that at 6: 30 a. m.
of January 16, 1946, he observed one Charles Ayers beginning work. Ayers
was a member of the Union who had been previously employed by the Respond-
ent, and Hines knew Ayers to be delinquent in dues. Hines then called Carl
Whitlatch, a committeeman,' and the two men went over to Ayres, whom Hines
asked if he had a union card. Ayers replied he did not. Hines then asked for
Ayers dues book and was told that Ayers had it at home Upon receiving this
information, according to Hines, he then told Ayers, "Well you better go and get
it and see how much you owe so we can get you in good standing this morning
hadn't you?" At this point Will Reynolds, the working foreman in charge of
the shop, and who was himself a member and a former president of the Union,
suggested to Hines, that Ayers be permitted to work until the arrival of Arthur
Lucas, the plant superintendent. This Hines agreed to do and he and Whitlatch
returned to their work. Hines testified that when Lucas arrived, "I walked up
to Art [Lucas] and I asked him what about Charles Ayers, getting the man
straightened out and getting him in good standing. I said he was delinquent
and we would like to have him straightened out. He says . .. Art says,
"Well" he says, "I had orders yesterday not to cooperate with no union or a
committee any more." Hines thereupon told Lucas that the matter must be
settled within 10 minutes or he would call a strike. Lucas asked for more time
which Hines agreed to grant and Lucas, according to Hines, left to find out
if Eugene R. Simon, the Respondent's general manager, had "changed his mind
[regarding recognition of the committee] since yesterday."
Sometime later Lucas returned and informed Hines that he had been unable
to see Simon and on Hines' assurance that, "We will keep on working until you
come back," left to make another attempt to do so. While Lucas was gone on
his second trip to contact Simon, a stranger who was identified in the record
as an organizer for a rival union entered the shop and spoke to several of the
men at their work. The evidence is clear that this individual's presence dis-
iupted the working of the shop. Eventually all of the employees left their
work and gathered about the organizer who attempted to address them, entered
into arguments with the men and finally left. During the time the organizer
was engaged in the above-related activities Hines quit working.
After the organizer left the plant, the employees who had apparently all quit
their work asked Hines, "Are we going back to work?" Hines testified that he
replied, "I ain't until we get Charlie Ayers straightened out, until Art comes
back. We kind of separated there. I suppose it was ten minutes after he
[the organizer] left before Art came back. Part of us was in the back end of
the shop around . . . I don't know what they are called-a tin drum with
a fire built in them, and some of them around the gas fire, some of them up
in front around one of those drums " Lucas came into the shop and upon
observing that the men were not at work asked Hines, "Did you strike, quit or
what?" Hines replied that it was not a strike but that they had quit work until
Ayers was "straightened out." According to Hines, Lucas then informed the
men, "You either go back to work or ring your cards out, you are all discharged "
The men thereupon rang out their cards and left the plant As they were
leaving Lucas was asked when the employees would be paid off and he replied,
1 Whitlatch became a member of the committee on January 14.
LANCASTER FOUNDRY CORPORATION 261
"I will get your checks " After the men left the plant, Lucas came out and
told them they would be paid at 11: 30.
Hines ' testimony shows that he first spoke to Ayers and Reynolds at about
6: 30 a. m ., that Lucas arrived at the plant at 7: 30 a. in., and that the employees
left the plant at either 9 : 45 a. in or 10:15 a. in
Time cards were introduced which show that the employees rang out between
9:41 and 9:45 a in.
Will Reynolds , the working foreman in charge of the shop on the morning of
January 16 , corroborated Hines ' testimony to the effect that Hines asked that
Ayers not be permitted to work until he paid his delinquent Union dues and
that it was agreed to await the arrival of Lucas until any further action was
taken. Reynolds further testified that he overheard the committee talking to
Ayers and that he heard Ayers say that he was willing to pay provided he was
given a chance but that at the moment he had no money . Reynolds also testified
that he permitted the organizer of the rival union to disrupt the working of
the plant because , "I just wanted to see how many traitors we had in the A. F. L.
Union , Local 384" Reynolds rang out and l eft the plant together with the
other employees The following clay he was recalled to work by the Respondent
but refused to work while the dispute was current.
Arthur K. Lucas, the Respondent ' s plant superintendent , testified that on
January 16 he was a member of the Union ; had been its president and was one
of the Union ' s signers to the original contract , having been at that time a rank
and file employee . Lucas testified that he arrived at the plant on January 16
at 7:30 a in. and was told by Ayers that the Union committee wanted him to
leave because his dues were not paid . Lucas told Ayers to continue working until
further orders . At approximately S a. in. Hines and the other committee
members came to Lucas and told him that Ayers was delinquent and that the
delinquent amount would have to be paid that morning The committee did
not know the amount of Ayer 's indebtedness to the Union. Lucas asked why
the committee would not wait until Ayers received a full pay as was customary.
The committee replied they "were tired of fooling " Lucas then suggested that
the committee wait until 10 a in., at which time a meeting was scheduled
between the Union and the Respondent , at which Louis D Kah, the Union 's Inter-
national Vice-President , was to be present . Hines denied that Lucas made
any reference to this meeting, but admitted that he ( Hines) knew at the time
that the meeting was to be held. Kah testified that he had informed the committee
of the meeting.
Lucas testified that: Hines then told him that the matter must be disposed of
to the committee ' s satisfaction within 10 minutes or he would call a strike and
Lucas replied that:
As far as I was concerned I was going to work the man but rather than see
them strike the shop I would take it up with higher officials of the Company,
and abide by their decision on the matter.
Hines then agreed to let Lucas have as much time as he required and stated that
the men would keep working until Lucas returned with an answer . Upon Lucas'
return he noted that some of the employees had ceased work and thereupon first
informed Hines and Whitlatch that he had been unable to see Superintendent
Simon ; and then asked that the committee keep the employees at work until he
was able to do so. Hines and Whitlatch agreed to see that the men remained at
work and Lucas then left . Lucas was able to see Simon and returned to the shop
766972-4S-vol 75-18
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where he discovered that all the employees had ceased work Lucas was not in
the shop during the time the rival union's organizer disrupted its operation and
testified lie had no knowledge of it until after its occurrence. Lucas asked the
committee if the employees were on strike and was told by Hines that the men
had ceased working until Ayers was out of the shop Lucas then told the em-
ployees that "they would either have to go back on their jobs and I would give
them ten minutes to do so ; or else they would have to ring out their time cards
and leave the factory." He then left, remaining away about 15 minutes in order
to give the men ample time and returned only to find that none of the employees
had returned to work Lucas testified that thereupon, "I informed the men
that there was a job there for all of them, with plenty of work for them if they
wanted to work, but if they refused to work they would have to leave They
then proceeded to ring their time cards out and leave the shop." Lucas also
testified that he told the employees if they returned to work "they wouldn't be
docked for any time lost."
The accounts of the work stoppage and subsequent mass discharges as given
by Hines and Lucas vary little in their general outline but there are important
variations in some of the particulars.
Thus, Hines testified that at the time lie lust talked to Lucas regarding Ayers.
Lucas made the statement that he had received orders not to recognize the
Union or the committee.
Whitlatch testified that otter Lucas returned from his first attempt to see
Simon he said that he had received orders not to recognize the Union or com-
mittee. Whitlatch also testified that it was on the preceding day that he heard
from "some one" in the plant that Lucas had told "some one" he had orders not
to recognize the committee and that Lucas repeated the statement to the com-
mittee after he returned from seeing Simon.
Charlie Sheets: testified that after Lucas returned the second time, lie made
the statement that he would not recognize the Union
Orval B Lavey testified that Lucas made the statement that he would not
recognize the Union at the time the men were already ringing out their cards
Lavey's testimony regarding the incident was vague On direct examination lie
testified :
Q. What did Art Lucas say?
A Well Art told us if we didn't go back to work, that we was fired, for us
to ring our cards out and get off the ground and the checks would be ready
before long
Q Did he say anything else)
A No, I never just exactly heard him right then, but it seemed to me like
when lie walked around the cupola I heard him talking to Ray, him and Ray
was talking there for a while, and I believe I heard hum say-told Ray he had
orders not to have anything to do with the committee or recognize the union
or anything like that I wouldn't say for sure, I believe I caught that much
He never just told us fellows that. He was talking to Ray Hines and him and
Ray was talking.
Paul Theodore Hawkins testified that after Lucas told the employees they were
discharged he said that "Simon told him not to recognize any union"
Lucas denied having made any statement to the effect that he would not recog-
nize the Union of the committee at any time on January 16 He testified that on
January 3, 1946, he told the Union committee that the Respondent could not reopen
2 Sheets had been a nieniber of the committee less than one week
LANCASTER FOUNDRY CORPORATION 263
Its contract with the Union 3 as had been requested by the committee for the reason
that a petition for representation had been filed by a rival union Such a petition
had been filed and was later withdrawn.
From the entire record in the case the undersigned finds that Lucas did not at
any time on January 10, tell Hines, the Union committee, or the Respondent's
employees that he had orders not to recognize, or would not recognize the Union
or the Union's committee
This finding is strongly buttressed by the fact that following the discharges the
Union, represented by its International Vice President, Kah, and the shop com-
mittee which included Hines, had four meetings with the respondent in an effort
to return the men to work The first meeting took place at 3 p m of the day the
discharges were made, the last on January 21 None of the witnesses testifying
regarding the meetings stated that Lucas' alleged statement regarding his refusal
to recognize the Union, was mentioned. Kah, who testified in great detail regard-
ing the meetings, stated that at the first meeting :
We pointed out that the contract had been previously violated by the manage-
ment in refusing to bargain collectively with the Committee The act ion that
morning of Mr. Lucas taking all arbitrary stand in regards to the deduction
of dues was not collective bargaining in the intent of the law, and the com-
pany had violated the agreement in that respect, and we considered that the
men were discharged
It is evident from the record that Hines was the instigator of the entire affair;
that he acted without authority of the Union.
Whitlatch testified that when Hines first talked to Ayers in Whitlatch's pres-
ence. Hines told Ayei s to bi rnq in his book at noon; that Hines told Ayers that the
Union and the Company would arrange to take 25 percent of his pay to cover Ayers
delinquent dues and Ayers replied "all right."
Whitlatch's testimony is at variance with that of Hines. From his observa-
tion of both witnesses the undersigned accepts Whitlatch's version of the above-
related incidents and credits his testimony.
Lavey testified that at approximately 8 a in. (of January 16) while he was
at his work in the core room, which is separated from the plant proper, Hines
came to his place of work and informed him that Ayers was not in good standing
and that Lucas had gone to talk to Simon. After importing this information
Hines left and returned in about one-half hour and that then:
Well, he told us they couldn't get any decision from him, from Art, that he
didn't know what we ought to do, whether we ought to quit work, cease
work for a while and find out whether be was going to get in good standing,
Charlie Ayers, or not.
The employees in the core room thereupon quit their work and followed Hines
to the main plant Lavey testified that this incident occurred before the rival
organizer entered the plant. It was therefore before Lucas returned from his
second trip to see Simon, which was made after Hines had assured Lucas that
the Union's committee would keep the men at work during his absence.
Robert Lohnes 4 testified that Hines came to him at about 7. 30 a. in. and told
him that "Art Lucas told him they refused to bargain with the committee and
the Union ; they said they wouldn't recognize no union, and that Mr. Kah was
Supposed to be down that clay " 1-Tunes also told Lohnes that Ayers was delinquent
The contract did not expire until May 31, 1946.
Lohnes had been a member of the committee for the period of one week.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in dues and that Lucas had gone to see Simon "about this man Ayers, and they
didn't know whether he would pay up his dues or not."
Hines also testified, as follows :
Q. How long after you left the foundry that day before you took this
matter up or spoke of this matter to your Union officers?
A. What matter?
Q The matter of the incidents that occurred on the morning of January
16, in the foundry?
A. I didn't never mention anything to them about it.
Concluding findings
The contract in effect on January 16, 1946, contained a valid "no strike"
clause in that it provided that pending the settlement of any "grievance, com-
plaint or dispute" neither party should discontinue operations.
The contract also set up a grievance procedure, which provided that: "Any
grievance or dispute that may arise shall be taken up at once by the manage-
ment and the committee. If not adjusted satisfactorily shall then be taken up
by the management and the officers of the Union."
On the request of the Union the Respondent was obligated to withhold up to
25 percent of an employee's pay, in order to cover delinquencies to the Union. In
practice the delinquent employee authorized the deduction in writing. Such de-
ductions were common and had previously been handled in an amiable manner.
The record shows that two of the Respondent's employees were not yet members
of the Union and that one other than Ayers was not in good standing It is clear
that Lucas did not refuse to make arrangements for the collection of Ayers' de-
linquent dues. True he refused to discharge him, but he and the committee
agreed that Lucas should take the matter up with the Respondent's manager and
that pending an answer work would continue. Lucas was clearly carrying out
the established grievance procedure but Hines did not permit the procedure to
be carried to its final stage. He broke his agreement to keep the men at work
and although he admittedly knew that a meeting was scheduled between the
Union and the Respondent at 10 a. in., he advised the employees both directly
and by his action that they quit their work. The employees did so, and declared
their intention to abstain from work until the Ayers matter was settled. Clearly
the employees engaged in a strike in so quitting their work
Lucas testified, and the undersigned credits his testimony, that he told the
men there was a job for all ; ordered them to return to work ; and gave them
ample opportunity to do so before he discharged them.
The employees being engaged in a strike in direct violation of their contract,
the Respondent had a legal right to discharge them. Such discharges are final.'
The undersigned finds that the Respondent's afore-mentioned conduct in dis-
charging its employees was not violative of the Act
C. The discharge of James Nichols, Jr.
Nichols did not testify. The parties stipulated that on January 16, James
Nichols, Jr , was not at work and did not participate in the strike, nor was he
6 See N L R B v Sands Manufacturing Company, 306 U. S 332. See Scullin Steel
Company and American Federation of Labor and its A ffi liated International Unions, et al ,
65 N. L R. B. 1294.
LANCASTER FOUNDRY CORPORATION 265
discharged by the Respondent. He did not return to work, nor ask for rein-
statement. The parties stipulated that Nichols did not return to work because
"as a good union man he would not return to work under these circumstances
and would not work with non-union men." The Union did not mention Nichols
when it asked reinstatement of the men who had engaged in the work stoppage.
On the basis of the record, the undersigned finds that on January 17, 1946,
James Nichols, Jr., voluntarily quit his employment with the Respondent and
that the Respondent has not discriminated against him.
D The discharge of Edward Lee Jenkins
Edward Lee Jenkins testified that on January 16, Lucas discharged him in-
dividually. Jenkins took part in the work stoppage. He testified on direct exami-
nation as follows :
Q. Did he [Lucas] tell that to you alone [that Jenkins was fired] or were
you in a group at the time?
A. Well I think he told me that alone. I started to go back to one of my
fires ; lie said, "You are fired "
Q. After the District 50 man came in, you were standing around, is that
right?
A. That's right.
Jenkins further testified that after Lucas made his final talk to the men "Well, I
figured the Union could take care of me, they had been. I was getting ready to
go back to work " Jenkins also testified that Lucas asked him where he was going
and that he told Lucas, "Going back to get a sweater," or something and he
[Lucas] said, `You are fired."
The undersigned does not believe Jenkins' testimony to be consistent. He par-
ticipated in the shut-down. After Lucas gave the men their final opportunity to
go back to work, Lucas left for 15 minutes and apparently after his return
Jenkins, who "figured" the Union could take care of him, started to go back to one
of the fires. He told Lucas he was going for "a sweater or something." The men
were then ringing out their time cards and leaving, and in view of Jenkins' testi-
mony that he believed the Union could "take care" of him, the undersigned is not
persuaded that Jenkins' intention was anything other than to leave. He did not
tell Lucas he intended to return to work and the undersigned finds that Jenkins did
not intend to return.
The undersigned finds that Jenkins was lawfully discharged.
E. The discriminatory discharge of Mort Allen
Mort Allen testified that on January 16 he was working outside the building
at the cupola. He did not participate in the strike nor in any of the events
which immediately preceded the discharges as hereinbefore found. Allen testi-
fied :
I was in the cupola and somebody hollered up there at me and I went
down, a bunch standing around, see? I got down there about the time Art,
he walked in, and he said, "You are all fired," to ring out, he would pay us in
an hour.
So in an hour he paid us up in full, I had two checks coming.
Allen's testimony was not denied.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concba1in9 finding on discrinrinatory discharge of Allen
It is apparent that Allen was discharged by the Respondent on account of the
Respondent's belief that he was engaged in the work stoppage. The Respondent
was mistaken and the Respondent's mistake cannot create a valid reason for the
discharge.° Accordingly, the undersigned finds that on January 16, 1946, the
Respondent discharged Mort Allen because of his membership in the Union.
The Respondent by discharging Mort Allen and thereafter refusing to reinstate
him has discriminated in regard to his hire and tenure of employment, thereby
discouraging membership in the Union and interfering with, restraining and coerc-
ing its employees in the exercise of the rights guaranteed in Section 7 of the Act.
F The refusal to bargain collectively
1 The appropriate unit
The complaint alleges that all production and maintenance employees at the
Respondent's Lancaster, Ohio, plant, excluding the superintendent, and any
other supervisory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees or effectively recommend
such action, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act The Respondent's answer
admits the appropriateness of this unit The Respondent and the Union were
under contract since June 1, 1942 Under the contract the parties bargained
for a unit of employees as above described
The undersigned finds that the above-described unit at all times material
herein constituted and now constitutes a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
2 Representation by the Union of a majority in the appropriate unit
As hereinbefore found the Union and the Respondent entered into a sole bar-
gaining contract on June 1, 1942 The contract was renewed from year to year
and its last renewal made the contract effective until May 31, 1946 The con-
tract required that the Respondent operate with members of the Union and
under it the Respondent recognized as appropriate and the Union bargained for
the unit hereinabove found to be appropriate
As herein found on January 16, 1946, the Respondent had a total of 35 pro-
duction and maintenance employees On that day the Respondent legally dis-
charged 20 of these employees Also on January 16, 19-16, the Union met
with the Respondent in an effort to return the discharged employees to work.
The Respondent refused to rehire the men At the time of this conference none
of the discharged men had been replaced and the Respondent had then in its
employ 15 production and maintenance employees, 13 of whom were members of
the Union.
The undersigned finds that on January 16, 1946, the Union was the duly desig-
nated representative of the majority of the Respondent's employees in the afore-
mentioned appropriate unit and that at all times thereafter has been the exclu-
sive representative of such employees within the meaning of Section 9 (a) of the
Act.
6 See Hatter of 117i1-Continent Petroleum Corporation , 54 N L R B 912
LANCASTER FOUNDRY CORPORATION 267
3. The refusal to bargain
The Respondent avers in its answer :
that after January 16. 1946,' at 2: 00 o'clock p ni , the Respondent refused
and it now refuses to bargain collectively with the Union as alleged in para-
graph 7 of the complaint because of their repudiation of the contract as
herembefore described, their conduct as set forth in paragraph 4 herein," and
for the reason that Respondent is wholly without knowledge with respect to
the present status of said Union in Respondent's plant.
The Respondent by its answer aclniits that it refused to bargain with the
Union on and alter Januiiy 17, and pleads that it was under no obligation to
do so because the contract had been abrogated by the illegal strike The un-
dersigned finds no meat in this contention.
The authority of the Union to bargain for the Respondent's employees stems
from its status as their representative in a unit appropriate for the purposes
of collective bargaining The right is statutory, created by and dependent on
the fact that the Union represents a majority of the employees in the appro-
priate unit
In the instant matter, the appiopuate unit has been found to be all of
the Respondent's production and maintenance employees excluding the super-
intendent and other supervisory employees.
The Union and the Respondent were under contract. Inasmuch as a sole
bargaining contract between a union and an employer rests on the Union's
representative status, in that such a contract cannot be legally entered into un-
less the Union has such majority status, the contract between the Union and
the Respondent was secondary to the Union's statutory right of representation.
It has long been the established policy of the Board and the courts to miti-
gate and eliminate obstructions to the free flow of commerce by encouraging
the practices and procedure of collective bargaining and it has been held that
the mere execution of a collective bargaining contract does not end the process
of collective bargaining As the Court stated in Newnik Aloinninq Ledges Co v.
N. L. R B' "the right of collective bargaining . . . is a continuing right
. . . it is not a detached or isolated procedure, which once reflected in a
written agreement becomes a final and permanent result " it is likewise clear
that the expiration or cancellation of a valid bargaining contract does not re-
lieve the employer party thereto of the obligation to bargain with the Union
party thereto provided the Union continues to represent a majority of employees
in an appropriate unit as the Union's right to bargain is not dependent on the
existence of a contract but stems from the statute. That the light to represent
employees and to bargain for them ieinains even after a contract embodying
the terms and conditions of bargaining has been broken, has been pointed out
in N. L R B v Highland Shoe, Inc., '0 wherein the Court said:
Furthermore unless the statutory right to bargain collectively is held to
remain in force even after a labor contract previously made is broken, the
purpose of the Act to promote industrial peace through collective bargain-
ing will be attained in small measure.
This date was amended at the healing to be January 17, 1946
Refers to the employees' breach of the contract.
0120 F (2d) 262 (C C A 3)
1 0 119 F (2d) 21S (C C A 1).
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 17, the Respondent refused to bargain with the Union, relying
on the breach of contract and its abrogation of the breached agreement
Assuming arguendo that the contract was abrogated, still the abrogation of
the contract could not in any way affect the Union's right to bargain for the
Respondent's employees if in fact it represented them. On January 16, the
Union sought to bargain with the Respondent, and the Respondent refused to
bargain. At that time none of the discharged employees had been replaced
While it is true that a complement of 15 employees could not operate the
Respondent's plant effectively and as the Respondent argues, it replaced the
discharged employees with non-union workers as rapidly as it could," it cannot
be denied, nor is it denied, that at the time of the Respondent's refusal to
bargain with the Union, the Union did in fact represent a majority of the
employees the Respondent then had A reduction in the size of the unit, where
the character of the work remains the same, does not affect the status of the
bargaining agency, for if this were so any day to day change in employment
could be used as a reason to compel a new demonstration of majority status
and lead only to utter chaos in labor relations.
In the undersigned's opinion this matter is clearly distinguishable from the
Sands case" in that although the Sands case holds that, "The Act does not
prohibit an effective discharge for repudiation by the employee of his agreement,"
in the Sands case the plant was closed by the official act of the Union which with-
drew its members from their employment and further when the Union sought
again to bargain the Court found that-
The Respondent [Sands] had lawfully secured others to fill the places of the
former employees and recognized a new union, which so far as appears repre-
sented a majority of its employees, the old union and the shop committee
were no longer in a position on September 4th to demand collective bar-
gaining on behalf of the Company's employees.
Likewise, in the Columbian Enameling" case, the Court found that the Union
had failed to request that the Company bargain with it before its striking
members had been replaced.
By its refusal to bargain with the Union on January 17, the Respondent was
enabled to replace the discharged Union members with non-union employees and
now argues that by so doing it has destroyed the Union's majority status. If
this argument is given weight the Respondent would be permitted to take advan-
tage of its own wrongful act, which it cannot do under any rule of law and as
stated in N. L. R. B. v. Bradford Dyeing Association: "
The unfair labor practices of the respondent cannot operate to change the
bargaining representative previously selected by the untrammelled will of
the majority.
As the Board held in a recent case" "a no-strike clause is designed to keep
disputes from interrupting the respondent's operations but, as the case under
consideration amply demonstrates, it constitutes no guarantee that such inter-
ruptions will not occur. Unless the statutory duty to bargain collectively is held
to remain in force even after a labor contract previously made has been broken,
"On Januaiy 22, 1946, all the discharged employees had been replaced
12 N L. It B v. Sands Manufacturing Co., 306 U. S. 332
12 See N L R B v Colombian Enameling & Stamping Company , 306 U. S. 292.
13 310 U S. 318, 60 S Ct. 918-929-84 L. Ed. 1226.
15 See Timken Roller Beating Company and United Steelwoakers of America , (C. L 0.),
70 N. L R B . 500, footnote 9
LANCASTER FOUNDRY CORPORATION 269
the purpose of the Act to promote industrial peace through collective bargaining
will be attained only in small measure "
The undersigned finds that on January 16, 1946, and at all times thereafter, the
Respondent has refused to bargain collectively with the Union as the exclusive
representative of certain of its employees in an appropriate unit, and thereby has
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF TUE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent's business 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.
V. TIIE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to eftectuate the policies of the Act.
Having found that the Respondent on January 16, 1946 and all times there-
after, refused to bargain collectively with the Union as the exclusive representa-
tive of its employees in an appropriate unit, the undersigned will recommend that
the Respondent, upon request, bargain collectively with the Union.
Since it has also been found that the Respondent discriminated in regard to
the hire and tenure of employment of Mort Allen, it will be recommended that
the Respondent reinstate Allen to his former or substantially equivalent position;
without prejudice to his seniority or other rights and privileges It will be further
recommended that the Respondent make whole Allen for any loss of pay he may
have suftered by reason of such discrimination, by payment to him of a sum of
money equal to the amount he normally would have earned as wages from the
date of the discharge against hint to the date of the Respondent's offer of rein-
statement, less his net earnings" during such period.
Inasmuch as the record shows that prior to January 16, 1946, the relationship
between the Union and the Respondent was harmonious and as there appears
to be no evidence that danger of other unfair labor practices is to be anticipated
from the Respondent's conduct, the undersigned will not recommend that the
Respondent cease and desist from the commission of any other unfair labor
practices" However, in order to effectuate the policies of the Act, the under-
signed will recommend that the Respondent cease and desist from the unfair
161n accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, but if such position is no longer in existence, then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N. L R. B. 827
14 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company, 8 N L. R B. 440. Monies received for work performed
upon Federal, State, county, municipal, or other work-relief projects shall be considered
as earnings. See Republic Steel Corporation v N L. R. B , 311 U. S. 7.
11 See N L. R B. v. Ea-press Publishing Company, 312 U S 426.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices found and from in any manner interfering with the efforts of
the Union to bargain collectively with it
Upon the basis of the above findings of fact and upon the entire record, the
undersigned makes the following :
CONCLUSIONS or LAW
1 International Moulders and Foundry Workers Union of North America.
A. F L., is a labor organization within the meaning of Section 2 (5) of the
Act.
2 All production and maintenance employees employed by Lancaster Foundry
Corporation at its Lancaster , Ohio, plant, excluding the superintendent , and all
other supervisory employees with authority to hire, promote , discharge , discipline,
or otherwise effect changes in the status of employees , or effectively recommend
such action, constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3 The Union was at all times material herein , and now is, the exclusive repre-
sentative of all the employees in such unit for the purposes of collective bargain-
ing within the meaning of Section 9 (a) of the Act.
4 By refusing to bargain collectively with the Union as the exclusive repre-
sentative of the employees in the above-stated unit , the Respondent has engaged
in and is engaging m unfair labor practices, within the meaning of Sections (5)
of the Act.
5 By discriminating in regard to the hire and tenure of Mon t Allen and thereby
discouraging membership in International Moulders and Foundry Workers Union
of North America , A F. L., the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section S (3) of the Act.
6 By interfering with , restraining , and coercing its employees in the exercise
of the 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 (1)
of the Act.
7. The Respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (3) of the Act by discharging its employees who engaged in a
strike in violation of their agreement on January 16, 1946
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned teconnnends that the Respondent,
Lancaster Foundry Corporation, Lancaster, Ohio, its officers, agents, successors,
and assigns shall :
1 Cease and desist from :
(a) Refusing to bargain collectively with International Moulders and Foundry
Workers Union, A F. L, as the exclusive representative of all its production and
maintenance employees at its Lancaster, Ohio, plant excluding the superintend-
ent, and all other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action :
(b) In any manner interfering with the efforts of the Union to bargain col-
lectively with it, for the unit above found to be appropriate.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
LANCASTER FOUNDRY CORPORATION 271
(a) Upon request bargain with the Union as the exclusive representative
of the employees in the appropriate unit hereinabove described ;
(b) Offer Mort Allen immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other
rights and privileges ;
(c) Make whole Mort Allen for any loss of pay he may have suffered by
reason of the Respondent's discrimination in regard to his hire and tenure, by
payment to him of a stun of money equal to that which he normally would
have earned as wages from the date of his discharge to the date of the Re-
spondent's offer of reinstatement, less his net earnings,' during such period;
(d) Post at its plant in Lancaster, Ohio, copies of the notice attached hereto,
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Ninth Region, shall, after being duly signed by 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 said notices are not altered, defaced, or covered by
other material;
(e) File with the Regional Director for the Ninth Region on or before ten
(10) days from the date of the receipt of this Intermediate Report a report
in writing setting forth in detail the manner and form in which the Respondent
has complied with the foregoing recommendations
It is further recommended that the complaint be dismissed so far as it alleges
that the Respondent discharged the employees whose navies appear in "Appendix
B" hereto, because of union and concerted activities.
It is further recommended that unless on or before ten (10) clays from the
date of the receipt of this intermediate Report, the Respondent notifies said
Regional Director in writing that it has complied with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board, may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.38 of
said Rules and Regulations, file with the Board, Roehambeau Building, Washing-
ton 25, D. C, an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof ; and
any party or counsel for the Board may, within the same period, file an original
and tour copies of a brief in support of the Intermediate Report. Immediately
upon the filing of such statement of exceptions and/or briefs, the party or counsel
for the Board filing the same shall serve a copy thereof upon each of the other
parties and shall file a copy with the Regional Director. As further provided in
said Section 203 39, should any party desire permission to argue orally before
the Board, request therefor must be made in writing to the Board within ten
(10) days from the date of service of the order transferring the case to the
Board.
Louis PLOS-r,
Dated October 10, 1946. Trial Examinc,.
11 See footnote 17, sepia.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL BARGAIN COLLECTIVELY, upon request, with INTERNATIONAL MOULD-
ERS AND FOUNDRY WORKERS UNIoi of NORTH AMERICA, A. F. L., as the exclusive
representative of all our production and maintenance employees, excluding
the superintendent and any other supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action.
WE WILL OFFER MORT ALLEN full and immediate reinstatement to his former
or substantially equivalent position without prejudice to any seniority or
other rights and privileges he may have previously enjoyed and make him
whole for any loss of pay he may have suffered as a result of our discrimina-
tion against him.
LANCASTER FOUNDRY CORPORATION,
Employer.
By ------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
APPENDIX B
Charles Sheets
Robert Lohnes
Ray Hines
Elmer Crabtree
William Otto Corsen
Lewis Clark Wolfe
William Reynolds
Webster Ranier
Orval B. Lavey
George W. Nicolia
Clay DeLong
Edward H. DeLong
James Nichols, Sr.
Paul Hawkins
Wilbur H. Carlisle, Jr.
Edward L. Jenkins
James Nichols, Jr
John W. Dittoe
Harry Ranier
Carl Whitlatch
William McNutt