International Molders and Foundry Workers Union of North America

National Labor Relations Board - Board Decisions

Sep 7, 1950

91 N.L.R.B. 139 (N.L.R.B. 1950)

In the Matter of INTERNATIONAL MOLDERS AND FOUNDRY WORKERS
UNION OF NORTH AMERICA (AFL) AND THE INTERNATIONAL MOLD-
ERS AND FOUNDRY WORKERS UNION OF NORTH AMERICA, LOCAL
No. 68 and THE HAMILTON FOUNDRY AND MACHINE COMPANY
Case No. 9-CB-31.-Decided September 7, 1950
DECISION AND ORDER,
On April 11, 1950, Trial Examiner Max Goldman issued his Inter-
mediate Report, in the above-entitled proceeding, finding that the
Respondents had not engaged and were not engaging in certain unfair
labor practices and dismissing the complaint, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter the Com-
pany filed exceptions to the Intermediate Report and a brief in sup-
port of its exceptions and requested oral argument. The Respondent
filed a brief in support of the Trial Examiner's Intermediate Report.
As, in our opinion, the record and the briefs adequately present the
position of the parties, the Company's request for oral argument is
denied.
The Board has reviewed, the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
We agree with the Trial Examiner's finding that company Vice-
President McDaniel misunderstood Union Representative McCune
in their telephone conversation of March 26, 1949, and that conse-
quently no agreement was reached between the Company and the
Respondents. In view of this disposition of the issue, we shall not
pass upon the question, whether the repudiation of an oral agreement
and the consequent refusal to reduce such an agreement to writing
constitute a failure to comply with the collective bargaining obligation
imposed by Section 8 (b) (3) and 8 (d) of the Act.
91 NLRB No. 21.
139
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint against the Respondents
International Molders and Foundry Workers Union of North America
(AFL), and the International Molders and Foundry Workers of
North America, Local No. 68, be, and it hereby is, dismissed.
CHAIRMAN HERZOG and MEMBER MURDOCK took no part in the con-
sideration of the above Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Alan A. Bruckner , for the General Counsel.
Mr. Robert A. Wilson, of Cincinnati , Ohio , for the Respondents.
Taft, Stettinus and Hollister , by Messrs . J. Mack Swigert and Robert T. Keelar,
of Cincinnati , Ohio, for the Company.
STATEMENT OF THE CASE
Upon a charge filed April 20, 1949, by The Hamilton Foundry and Machine
Company, Hamilton, Ohio, herein called the Company, the General Counsel by
the Regional Director for the Ninth Region (Cincinnati, Ohio), of the National
Labor Relations Board, herein called the Board, issued his complaint, dated
July 18, 1949, against International Molders and Foundry Workers Union of
North America (AFL), and the International Molders and Foundry Workers
Union of North America, Local No. 68, herein called the Respondents, alleging
that the Respondents had engaged in and were engaging in unfair labor prac-
tices within the meaning of Section 8 (b) (3), and Section 2 (6) and (7) of
the Labor Management Relations Act, 61 Stat. 136, herein called the Act. Copies
of the complaint and the charge, together with the notice of hearing were duly
served upon the Respondents and the Company.
With respect to unfair labor practices, the complaint alleged in substance
that the Respondents refused to bargain collectively with the Company by
failing and refusing to execute a written contract incorporating an agreement
reached between the Respondents and the Company when so requested by the
Company. The Respondents' answer denies the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held on various dates beginning August 2
through August 12, 1949, at Cincinnati, Ohio, before the undersigned, the Trial
Examiner designated by the Chief Trial Examiner. Each of the parties was
represented by counsel. Full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing on issues, was afforded
the parties. The parties waived oral argument at the close of the testimony,
but submitted briefs.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
INTERNATIONAL MOLDERS AND FOUNDRY WORKERS 141
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, the Hamilton Foundry and Machine Company, an Ohio corpora-
tion with its main office and plant at Hamilton, Ohio, is engaged in the production
of light and medium gray iron, alloyed iron, and Meehanite iron castings for
customers from their patterns to their specifications. During the year 1948 the
Company used raw materials consisting of pig iron, iron and steel scrap, alloys,
coke, and mold sand valued at approximately $300,000, of which 12 percent was
obtained from sources outside the State of Ohio. During the same year, the
Company sold rough iron castings exceeding $3,000,000 in value, of which 30
percent was shipped to points outside the State of Ohio. The undersigned finds
that the Company is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Molders and Foundry Workers Union of North America, (AFL),
and the International Molders and. Foundry 'Workers Union of North America,
Local No. 68, are labor organizations admitting to membership employees of the
Company.
III. THE UNFAIR LABOR PRACTICES
The refusal to bargain
A. The appropriate unit and representation of a majority therein
The parties agree and the undersigned finds. that all employees of the Company
in molding, core making, core assembly, and two miscellaneous job classifications
defined as service men No. 2, sand slingers and machine operators, rollover core
unit, excluding industrial engineering department employees, laboratory depart-
ment employees, production schedule clerks, timekeepers, all clerical employees,
all employees covered by the existing agreement between the Company and the
United Steel Workers of America, CIO, and excluding supervisors, guards, and
professional employees as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
The parties agree and the,undersigned finds that the Respondent Local from
on or about March 1, 1948, and at all times thereafter has been and now is
the exclusive representative of the employees in the above-described unit within
the meaning of Section 9 (a) of the Act.'
B. The alleged refusal to bargain
The General Counsel alleges that the Respondents have refused to bargain
in violation of Section S (b) (3) of the Act, in that they refused upon the
Company's request to sign a document containing a collective bargaining agree-
'This finding represents the extent to which the parties agree in their pleadings. In
view of the recommendations hereinafter made, it is unnecessary to pass upon the
General Counsel 's allegation which the International denied that it also was and is the
statutory representative.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went which came into existence on March 26, 1949, as the result of an acceptance
of the Company's proposals communicated by the Respondents to the Company
during a telephone conversation on that date between Merlin D. McCune, district
representative of the Miami Valley Conference Board,' and Donald McDaniel,
vice president of the Company. The Respondents contend that no acceptance
of the Company's proposal was given and that no agreement was reached.3
As the parties suggest, in resolving the issue as to the conflicting versions of
the telephone conversation of March 26, 1949-McDaniel's version being that
there was an acceptance of the Company's proposal and McCune's being that
there was no acceptance but an offer to try the Company's proposal-an
examination of the surrounding circumstances should be made.
For several years prior to 1949, there had been written contracts covering
molding and core room employees. On February 8, 1949, negotiations began for
a new contract. McDaniel and Peter E. Rentschler, president, appeared on
behalf of the Company ; McCune and employee Robert Harding, shop chairman,
and others of the bargaining committee appeared on behalf of the employees-
At this meeting the Company pointed out the necessity of cutting the cost of its
products to meet competition from other producers and substitute products-
The demand for the Company's products had dropped so that the employees in
the bargaining unit had been working only 3 days a week, Monday, Wednesday,
and Friday, since November 1948. Rentschler pointed out specific instances of
customers who were cancelling orders or seeking to renegotiate prices and
emphasized that they were in a period of recession and that he was seeking
to adjust operations to the circumstances. He proposed that the contract be
renewed without change except that the production molding operation be put
under an industrial engineering system for the purpose of establishing job
prices, similar to that which had been applied to the core room by previous
contract. The employees engaged in production molding, up to that time,
had been paid on a piecework basis, the price for a given job being established
by agreement between the foundry superintendent and a price committee of the
shop. The industrial engineering system would fix job prices upon the basisl
of standard data or time studies of a particular job. The bargaining committee
then submitted its proposal for the new contract, which provided among other
things for a 5-cent an hour increase in wages and the maintaining of, the exist-
ing system of bargaining for the piecework price of each item produced in the
production molding operation.
The next bargaining conference was held on February 24. Harding reported
that the men had objected to the extension of industrial engineering to produc-
2 This board is affiliated with the Respondent International and is composed of several
local unions in the general area, including the Respondent Local 68. In view of the
recommendations below, it is unnecessary to pass upon McCune's status in relation to
the Respondent International.
3 The document prepared by the Company which is alleged to set forth the agreement
of the parties contains, among other things, the following provisions: (1) Provision that
"This Agreement is made and entered into as of the 30th day of March, 1949" and shall
be "effective as of March 28, 1949" ; (2) section I entitled "wages," which after setting
forth certain wage rates, states in paragraph 6 that "To put into effect the day work
rates specified above, it is understood that upon the signing of this Agreement, the exist-
ing individual day work rate of each employee covered by this Agreement shall be
increased 5 cents (5¢) per hour effective March 28. 1949." ; (3) it complex piecework
system ; (4) a union-shop provision ; (5) a checkoff provision; (6) a no-strike, no-
lockout clause ; and (7 ) provision that the agreement shall continue in effect until
March 27, 1950 , and renew itself annually thereafter unless certain-notice, is=given by
either party.
INTEIRNATIONAL MOLDERS AND FOUNDRY WORKERS 143
tion molding. The Company then pointed out that the selling prices of its
products had to be set upon a sound basis so that it would relate to actual
labor costs and not merely prices arrived at by bargaining-labor representing
about 50 percent of the Company's costs-otherwise competitors would get
,customers for the items which the Company had overpriced and the Company
would remain with customers for its underpriced items only. Rentschler also
declared that if the industrial engineering system proved inequitable, employees
could use the grievance procedure to resolve any issues which might arise. In
addition, the Company undertook to conduct a class to demonstrate to the men
the operation of the system. McCune stated that the committee was not in a
position to accept or reject proposals and all that it could do was to agree to
take the Company's proposals back to the membership.
The parties met next, with a conciliator, on March 3. The Company again
emphasized the necessity for industrial engineering, and the committee stated its
opposition to the system. Rentschler replied that he would not enter into a con-
tract which did not provide for industrial engineering. The Company agreed,
however, to the 5-cent hourly increase which the committee had suggested and to
certain holiday provisions. The committee agreed to present the new proposal to
the employees; and if they accepted it, a contract was to be executed on March 11,
to become effective March 14.
After the meeting of March 3 the Company prepared new price tickets for the
production molding jobs in accordance with the industrial engineering system.
McCune, however, thereafter informed the Company that the membership had
rejected the proposal.'
The parties met again with the conciliator on March 17. The committee stated
that the most significant objection the members had to the Company's proposal
was the industrial engineering system. It pointed out that the members had
voted 38 for rejection and 10 for acceptance of the proposal, and that a vote for
strike sanction, or a request for approval and support from the Respondent
International to conduct a strike, had been sustained by a vote of 40 to 8. The
committee declared that it was instructed to return to its original proposal; and
the Company then insisted that there be industrial engineering in the contract,
pointing out the economic need for the system. The committee undertook to sub-
init substantially the same proposal to the membership. The parties again agreed
upon an execution and effective date for a contract if the proposal should be
accepted.
The Company again was ready with preparations for the new system, but
hNIcCune telephoned Rentschler on March 19, informing him of the rejection of
the proposal by a small margin and suggesting some concession by the Company
so that the proposal could be resubmitted to the membership.
On March 24 the parties met again with the conciliator. This time Chester A.
Sample, president of the Respondent International, was also present . Rentschler
again reviewed the economic necessity for industrial engineering to fix prices and
repeated that the system must be included in the contract. Rentschler explained,
too, that the Company had to set the prices of its products for the quarter
beginning April 1. He also pointed out that lie had offered to conduct school to
explain the industrial engineering system to the employees, but only seven had
appeared for class. McCune ^ stated the committee . had sought to persuade
Respondent Local 68 is composed of employees of various employers in the area. This
rejection and other action, except if otherwise indicatedk was based upon the vote of
employees of the Company who were members of the Local.
144 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
the membership to accept industrial engineering, but the membership had
informed the committee that the system was not acceptable. The Company
affirmed that it was not changing its position. McCune then proposed a trial
period of 90 days, pointing out that under the proposed contract and previous
contracts the Company, but not the employees, had the right upon certain notice
to change the pay plan. McCune also suggested a change in the no-strike clause
at the close of the grievance process, and this was also rejected. The Company,
agreed to a change in pay for a certain job classification, but rejected a certain
apprentice ratio proposal. Rentschler then suggested that if the proposed agree-
ment should be accepted that week, he would put it into effect on Monday, March
2S.6 The committee thereafter raised an instance of an employee who had been
timed and who had complained of the results of the study. The Company empha-
sized its insistence upon industrial engineering and agreed to make the 5-cent
wage increase retroactive to March 14. Finally it was arranged that McDaniel
was to be informed on Saturday, March 26, as to the outcome of the meeting of
the employee members to be held the next evening, Friday, March 25.
On Friday evening, March 25, the employee members -of the Respondent Local
met to consider the Company's proposal. Harding of the shop committee pre-
sided. The committee reported on the negotiations and McCune recommended
acceptance of the proposal. McCune was criticized for taking a position on the
proposal because he was a member of the committee. The men in a boisterous
but unmistakable fashion expressed their disapproval of the proposed contract.
They stated their belief that acceptance would mean a reduction in wages and
pointed out that they had twice before rejected essentially the same proposal.
The proponent of a motion to accept the Company's proposal withdrew the motion,
and a motion was made that the strike sanction which the International had
granted be invoked and a strike commence the following Monday morning, March
28. Sample cautioned against striking, urged the men to return to work on
Monday, suggested that they take the matter up at the meeting of the full Local
on the following Monday night, and pointed out that a satisfactory arrangement
might yet be worked out. It was also pointed out that voting against striking
at this time would not mean approval of the Company's proposal. There were
about 48 persons present at the meeting, and by a majority of 8 or 9 the men voted
by secret ballot not to strike on Monday morning.
McCune telephoned Harding from his home in another city on Saturday morn-
big, March 26, to get Harding's approval to make the following statement to
McDaniel : namely, that the employees had voted not to put the strike sanction
in effect and they would work on Monday, and that if the Company put the
industrial engineering system into effect it would give the men an opportunity
to work under the system and probably by the Monday night meeting of the
Local, after the men had worked under the system for a day, the parties might
be able to reach an agreement. McCune also explained to Harding that in view
of the impasse on industrial engineering and their belief that the Company would
install the system, that in order to avert a strike, the men should have an oppor-
tunity to work under the system and see what it was like. Harding approved
the proposed statement and shortly thereafter McCune reached McDaniel by
long distance telephone: This is the conversation disputed by the parties.
McDaniel's version of the telephone conversation was that McCune stated that
"the boys had decided to go along with the agreement that we [the Company]
had presented to them" on Thursday. McDaniel then inquired, "Did you have
6It is not entirely clear whether Rentschler was speaking about the retroactive pay
aspects of the contract only or about the effective date of the contract in general.
INTE'RNATION'AL MOLDERS AND FOUNDRY WORKER.Si 145
any trouble?," and McCune replied, "Well, it wasn't easy ; but they have decided
to go along." McDaniel then stated that they would start the new system Monday
morning and McCune agreed. McCune also stated that he would not be able
to come to town until Wednesday afternoon to sign the agreement. McDaniel's
further testimony was that he (lid not remember whether McCune requested him
to inform Harding of it or whether he asked McCune if Harding, chairman of
the shop committee, knew about it, but that he, McDaniel, undertook to inform
Harding on Monday of the conversation of acceptance. McDaniel also testified
that there was no mention of the men trying the Company's proposal and that
he did not remember anything being said about a strike vote.
McCune's version of the telephone conversation was that McDaniel inquired,
"Welt, how did you make out last night?" McCune replied, "Not so good," and
then explained upon McDaniel's inquiry, "Well, they voted last night not to go
out on strike or put the strike sanction into effect." McDaniel asked what that
meant, and McCune answered, "I presume it means they are going along and try
the proposition. If we put it into effect and you are as fair about it as you
stated in our negotiations, there probably won't be any trouble and the boys
will go along with it." McDaniel declared, "Well, Mac, you know we are going
to be fair about it. You know there is some adjustment to be made." McCune
then stated that he understood from the negotiations that adjustments were to
be made on the underpriced and the overpriced jobs. McDaniel inquired about
signing the contract and McCune replied, "Well, if everything goes all right, we
will probably be able to sign the contract on Wednesday." McDaniel stated
that the Company would get the new system ready for installation.'
That Saturday afternoon and Sunday the Company set new price tags on the
jobs and otherwise installed a new price system so that for practical purposes
it was ready for operation on Monday morning, March 2S.
The employees worked on Monday under the new system. McDaniel testified
that he informed Harding that day of his telephone conversation with McCune
on Saturday, giving his, McDaniel's, version of the conversation,-uncondi-
tional acceptance. The record does not show Harding's reaction to McDaniel's
version of the conversation.?
That night the employee members of the Local met with the full Local, and
the next clay, Tuesday, the parties held a conference. Rentschler, McDaniel,
McCune, Harding, and the negotiating committee were present as usual. Sample
was not present at this conference ; and although McCune had not attended
the meeting of the Local the night before, he reported what he had learned
had occurred. Rentschler had with him copies of a document asserted in this
proceeding as containing the agreement of the parties.
Rentschler opened the conference by stating that the men were a day ahead
of themselves and that he had expected the signing of the agreement to take
place the next day, Wednesday.' McCune replied: "Mr. Rentschler, I might
O It was shown during the Company's examination of McCune that McCune had given
essentially the same testimony concerning this conversation on July 11, 1949, when
counsel for the Company had taken McCune's deposition in connection with another
proceeding.
'Harding was not called as a witness and McDaniel was not asked to testify on the
subject of Harding's reaction. According to McCune, Harding's name was not mentioned
in his telephone conversation with McDaniel on March 26.
8 The findings made as to the conversations at this and the other meetings of the parties,
except as otherwise noted, are based upon verbatim stenographic reports made for the
Company by experienced court reporters. The volumes of these reports were introduced
into evidence by the General Counsel.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as well start this thing. I don't know what we did. We hit a snag. We started
this production time study out here yesterday and started cutting them raises
in jobs. . . After an exchange relating to reductions in earnings under the
industrial engineering system, McCune continued : "At the meeting of-that
we had last Friday, which I called Mr. McDaniel on Saturday morning stating
that they had voted to try this proposition out, and that we had set up the meet-
ing to come in and complete the negotiations on the contract on Wednesday
at three-thirty. This morning Mr. Sample called me and told me of the diffi-
culties he had down there, He had between forty and fifty people down here
from this shop, down at the meeting last night very near tore the building down,
and had a sort of falling out, and instructed the committee not to sign this
agreement."
McCune further stated, "We went back to get our people to try this thing,
and those people here seem to feel that one day was enough ; that was all we
can stand of it." He also pointed out that his instructions were that if the
situation could not be worked out in a manner satisfactory to the men, they
were not going to work the next Monday, April 4. Rentschler deplored the
situation, pointing out that the Company had tried to answer any question
about the industrial engineering system, had given the employees an oppor-
tunity to go to school to learn about it, and was not going to mutilate the in-
dustrial engineering system at the plant merely because of the dissatisfaction
of a few individuals.
The parties discussed specific complaints that had arisen under the time
studies, and the Company pointed out that it had already had a meeting that
day with its foremen and had considered the complaints that they had received
the day before.
In the course of the conference after the discussibn of Monday's experiences
McCune stated : "The committee has taken it upon themselves in endeavoring
to get these people to come with the Company to see if they can't get this thing
eased out. I don't know. We're in a position here where we're instructed not
to sign this agreement, and we thought it was advisable to get in here to get
this thing straightened out." He then urged that the job prices had been cut
too much. Rentschler, on the other hand, attempted to demonstrate the fairness
of the system.
Toward the close of the conference Rentschler stated : "I'd say, Mr. McCune,
that you fellows will have to tell your people that they better cooperate a little
bit and get the thing going through. If you're not going to sign the agreement,
why, that puts a different aspect on it, as to just where we're going to be, be-
cause we presumably made an agreement. We were told the agreement was
in effect. There was some arrangement as to retroactive pay, and the effective
date of the agreement. Now, if the agreement isn't in effect, that's one thing
we should know, and we might as well clear it up today, unless you're coming
back tomorrow." McCune replied : "The only thing I can say-I didn't attend
the meeting. I'll have to talk to Mr. Sample and get in touch with you ; that's
all I can do. Because I was instructed to come in here and see what we can
do. I come down here, and I found the body last night told the committee not
to sign the agreement. Now, he was at the Meeting, and I was supposed. to call
him and let him know what happened here today. I think I got your picture
of what you intend to do, and I think the people should try to cooperate with
you and try to get it straightened out. I think they should file grievances and
have them straightened out."
INTERNA'TION'AL MOLDERS AND FOUNDRY WORKERSI 147
Rentschler thereafter stated : ". . . we've got to know pretty soon where we.
stand on an agreement, because we're not going to figure that we're under any
obligations for anything on an indefinite basis: I mean, we-the world is mov-
ing on, and business is going on. And we've got a terrific number of problems
that we're involved in, and the main one is, right now, prices to customers. We
made our decision, what we're going to do to customers in the way of revised
prices."
As the conference was closing Rentschler stated : "Now, another thing you
better make up your mind is as to whether or not we do or do not have an
agreement, because as far as we're concerned, we're supposed to sign tomorrow
afternoon. I thought you were coming in here early to, sign today. Now, we
want to know where we stand, because we can't go along indefinitely." McCune
replied that the Company would receive an answer on Wednesday and pointed
out that an agreement depended upon the men and that he had other engage-
ments on Wednesday: Rentschler declared, "As far as we're concerned, we have
been advised by you that the agreement would be signed Wednesday afternoon."
McCune responded, "And they rescinded the action last night." Rentschler stated
that he could not help that, and that it was up to them to determine whether the
document would be signed on Wednesday, and emphasized that the Company
had to know "whether we do or do not have an agreement." McCune answered
that the Company would be informed the next day: Rentschler and McDaniel
pointed out that it had been quite a task changing the job pricing system during
the week end and that some errors had thus resulted. McCune declared, "Well,
as I told you at that time, we had a pretty rugged time at that meeting when
they agreed to try this thing. It may be such a thing as you hit a bad day, and
it put them in a bad mood. Now, whether tomorrow the thing will change, I
don't know." Rentschler stated that the Company was not concerned with moods,
and only wanted to know whether they had an agreement. McCune replied that
he could not tell until the next day.' After a few inconsequential remarks
the conference adjourned.
9 The findings concerning the March 25 meeting of the employee members of the Local
are based upon Sample's and McCune's credible and uncontradicted testimony . The Com-
pany contends that the employees ratified the proposed contract at the March 25 meeting.
The General Counsel expressed no views on this subject. The Company relies on the fol-
lowing circumstances in support of its view: (1) The telephone conversation on March 19
between Rentschler and McCune when McCune reported that the Company's proposal of
March 17 had been rejected by a narrow margin and he, McCune, suggested that the Com-
pany make some change in its proposal so that the proposal could be resubmitted to the
employees ; ( 2) the Company 's agreeing to some changes _ in its proposals at the March
24 conference but maintaining industrial engineering ; ( 3) the new factor , knowledge of
actual earnings under the industrial engineering system, did not enter the picture until the
actual experience with the system on March 28, and then produced an adverse reaction at
the Monday night meeting; (4) McCune's statement at the meeting on Tuesday, March 29,
quoted in full above , that the employees had rescinded the action at the Monday meeting
when Rentschler declared that so far as the Company was concerned they had been
advised by McCune that the agreement would be signed on Wednesday ; and (5) a state-
ment by Harding at a conference to resolve the issues between the parties held about 2
months later on May 26: when Rentschler stated, "If you want to meet to draft the final
setup , why, we can set a date then and know when you are coming back to work and so
on ;" Harding replied, "Have them signed before we go back to work. That way there
won't be any more jumping the cart."
The General Counsel does urge that the last quoted exchange between Harding and
Rentschler tends to show that McCune informed McDaniel during the telephone conversa-
tion on March 26, that the Company ' s proposal had been accepted.
The Company also relies upon the employees ' acceptance of certain checks for a
retroactive pay increase as ratification . This matter is discussed in footnote 11.
917572-51=vol. 91-11
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Wednesday, March 30, Rentschler and McDaniel met with Harding and
the shop committee. They discussed specific complaints as to the new system
raised by the men, and Harding stated that some of the men were not even inter-
ested in giving the system a trial. Harding declared that they could not sign,
but that the men would work on Friday, and if the matter was not worked out
satisfactorily, a strike would commence Monday, April 4. Rentschler pointed
out that so far as the Company was concerned the contract was in effect and
signing had been scheduled for that time."
The parties were not able to resolve their differences, and 'on April 4 the
strike commenced and a picket line was established." Thereafter by letters
dated May 16 to the Local and the International, the Company announced that
because of breach of the no-strike clause it was cancelling the contract which it
stated had come into existence on March 26. The strike was in progress at the
time of the hearing.
It is argued in support of the view that McCune on March 26 informed Mc-
Daniel of an acceptance of the Company's proposal that there are certain
unreasonable aspects to McCune's version of the conversation. It is urged that
in light of the fact that there was boisterous and unmistakable opposition to the
Company's proposal at the March 25 meeting of the men, it is unreasonable. to
believe that McCune would suggest a trial period to the Company. If there
is any merit to this position, the view that McCune communicated an uncondi-
tional acceptance-which would have been directly opposed to the sentiment
of the men-would appear to be more unreasonable. The Respondents point
out, on the other hand, that an impasse had been reached on industrial engineer-
ing. The negotiations which had gone on for almost 2 months showed that
there would have to be an acceptance of the new system by the men if there was
to be a contract and that the men were opposed to it. The men had, however,
voted not to strike at the March 25 meeting, thus making possible an.opportunity
for learning about the system by working under it if the Company should install
it at McCune's suggestion. Actual experience would then either convince the
men that they should accept the new system or that they should reject it and
demonstrate to the Company the need for reappraising its views on the subject..
It is argued, too, that at the last bargaining conference on March 24 the Com-
pany had rejected a suggestion by McCune for a 90-day trial period of the indus-
trial engineering system. This was, however, the only time a trial period had been
suggested. Although the Company was adamant in its position on industrial
engineering]-as it and the employees had a right to be-the Company had
10 There was no stenographic report of this conference.
11 The Company contends that ratification of the Company's proposal is demonstrated by
the fact that after the strike had begun and the picket line had been established, almost all
of the employees involved, including members of the bargaining committee, accepted and
cashed certain checks dated April S. marked retroactive pay, March 14 to 27. Rentschler
testified that these checks were issued pursuant to a verbal agreement reached on March 24.
These checks so far as the record shows were in amounts under 3 dollars . They were dis-
tributed after the Company had announced in letters dater April 6, addressed to the
employees, that the Company would distribute checks for retroactive pay "under the new
contract." The General Counsel makes no contention in this regard. The Respondents
argue that the payment was a gratuity and was not provided for in the document urged as
the contract, and point to the provisions which show the effective date as March 28 and
that the pay increase was to become effective upon signing ; see footnote 3. It is found
that the employees did not evince an intent to ratify the alleged contract by accepting these
checks while at the same time showing their opposition to the terms of the alleged contract
by striking.
12 Sample and McCune testified that they believed from what bad occurred that the
Company would install the industrial engineering system on Monday , March . 28, whether
'INTERNATIONAL MOLDERS AND FOUNDRY WORKERS 149
made concessions in the course of negotiations in order to make its position, on
industrial engineering more acceptable to the men. It was not unreasonable
to assume that the Company would yield in some regard on a trial period in
an effort to convince the men of the fairness of its proposal, it appearing that
few of the employees had availed themselves of the school the Company had
held for this purpose.
Lastly, it is asserted in urging the unreasonableness of McCune's version of
the conversation with McDaniel that the proposed trial period could only have
been for 1 day, March 28, the Company's operation at that time having been
limited to Monday, Wednesday, and Friday. McCune's testimony concerning
this conversation, however, was that after he had suggested a trial period he
stated, "if everything goes all right, we will probably be able to sign the
contract on Wednesday."
The General Counsel suggests as the explanation of what occurred that Mc-
Cune accepted the Company's offer during the telephone conversation with
McDaniel on Saturday, March 26; that the Respondents then saw at the Mon-
day evening meeting that they had a "minor revolt" on their hands after the-
men had worked under the new system for a day ; and that the Respondents'
representatives found themselves "in the middle" and acted accordingly. The
Respondents point out, however, that McCune would have had nothing to gain
and much to lose in misrepresenting the wishes of the men. It may be added
that 'the. installation of the industrial engineering system on Monday and the
objection by the men at the meeting that night are also consistent. with the
trial-period version of the conversation.
The Respondents suggest that the explanation for the difference in McCune's
and McDaniel's versions of the conversation of March 26 is a misunderstanding.
Support for this explanation is found in the remarks, quoted in detail above,
which show that at the conference of Tuesday, March 29, 3 days after the
telephone conversation, each of the parties talked in terms of his own version
of the conversation. These remarks are also consistent with the General Coun-
sel's explanation that the Respondents' representatives had evolved a fraud-
ulent design before that time in an effort to solve their difficulties. Yet, as
the Respondents point out, it is difficult to perceive what reason McCune would
have had to make the original misrepresentation of the employees' action.
There appears to the undersigned to be an improbability in McDaniel's ver-
sion of the March 26 telephone conversation which indicates some misunder-
standing on his part. McDaniel testified that he undertook either at McCune's
or his own suggestion to inform Harding that McCune had represented that
the men had accepted the Company's proposal. It seems highly improbable,
however, that McCune woulfl have made such a suggestion or would have
failed to attempt to dissuade McDaniel from passing on to Harding informa-
tion which McCune would have realized Harding would recognize as a mis-
representation betraying the trust of the men. In view of this improbability in
McDaniel's version of the conversation of March 26, the lack of a convincing
explanation of why McCune would have breached the trust of the men, the
fact that at the March 29 conference each of the parties spoke in terms of his
own version of the March 26 conversation, and the undersigned's observation
that both McDaniel and McCune appeared to be credible witnesses, it is found
that McDaniel did not have a full understanding of what McCune said and
accepted or rejected by the men. Although April 1 marked the beginning of the new
quarter for the purpose of fixing prices to customers , a review of the negotiations fails
to reveal support for this position.
15O DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that McCune did not state that the Company 's proposal had been accepted. It
is accordingly recommended that the complaint be dismissed.
On the basis of the foregoing and upon the entire record in the case, the
undersigned makes the following :
CONCLUSIONS OF LAw
1. The operations of the Company constitute trade, traffic, and commerce
among the several states, within the meaning of Section 2 (6) and (7) of
the Act.
2. International Molders and Foundry Workers Union of North America,
(AFL), and the International Molders and Foundry Workers Union of North
America, Local No. 68 are labor organizations within the meaning of Section 2 (5)
of the Act.
3. The Respondents have not engaged in the unfair labor practices alleged
in the complaint.
It is therefore recommended that the complaint be dismissed in its entirety.