Lancaster Foundry Corp.

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 left 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 Affiliated 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) 10 119 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