Lancaster Foundry Corp.

National Labor Relations Board - Board Decisions

Apr 14, 1949

82 N.L.R.B. 1255 (N.L.R.B. 1949)

In the Matter of LANCASTER FOUNDRY CORPORATION and INTERNA-
TIONAL MOULDERS AND FOUNDRY WORKERS UNION OF NORTH
AMERICA, A. F. L.
Case No. 9-C-2239
SUPPLEMENTAL FINDINGS OF FACT
AND
ORDER
April 14, 1949
On November 20, 1947, the National Labor Relations Board, herein
called the Board, issued a Decision and Order in this case,' in which
it found that the Respondent, Lancaster Foundry Corporation, Lan-
caster, Ohio, had engaged in and was engaging in certain unfair labor
practices affecting commerce, and ordered the Respondent to take
certain affirmative remedial action. The Board found, among other
things, that on and after January 17, 1946, the Respondent had refused
to bargain collectively with International Moulders and Foundry
Workers Union of North America, A. F. L., herein called the Uniori,
in violation of Section 8 (5) and (1) of the National Labor Relations
Act,2 49 Stat. 449, herein called the Act.
To remedy this unfair labor practice, the Board directed the
Respondent, upon request, to bargain collectively with the Union as
the exclusive representative of the employees in the collective bargain-
ing unit which the Board found appropriate, in respect to rates of pay,
wages, hours of employment, and other conditions of employment.'
The Board petitioned the United States Court of Appeals for the
Sixth Circuit to enforce its order against the Respondent. There-
after, the Respondent moved the court for an order dismissing the
petition for enforcement, or in the alternative, for an order modifying
the Board's order by omitting therefrom the requirement that the
Respondent bargain with the Union. The Board also moved the court
for the summary entry of a decree enforcing the order of the Board
upon the transcript of the record.
1 75 N L R B 255
2The provisions of Section 8 (5) and ( 1) of the Act have been continued unchanged as
Section 8 ( a) (5) and 8 ( a) (1) of the Labor Management Relations Act, 1947.
@ Paragraphs 1 (a), 1 (b ), and 2 ( a) of the Order , 75 N. L. it. B. at 256-257.
82 N. L. R. B., No. 145. 1255
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 14, 1949, the court issued its order denying the Re-
sporrdent's motion and granting the Board's motion for enforcement
of its order, "but with reservation to the Respondent to make further
application to the Board in view of the alleged changed circum-
stances." Pursuant to the reservation contained in the court's order,
the Respondent, on March 7, 1949, filed with the Board a motion
requesting that the Board's order of November 20, 1947, be modified
by deleting therefrom paragraphs 1 (a), 1 (b), and 2 (a), which in
substance and effect require the Respondent to bargain with the Union.
Having duly considered the matter, the Board makes the following:
SUPPLEMENTAL FINDINGS OF FACT
The issue posed by the Respondent's motion is whether the Board
should relieve the Respondent of the requirement that it bargain with
the Union because that organization no longer represents a majority
of the employees in the appropriate unit. In point of fact, the Re-
spondent alleges that another labor organization, District 50, United
Mine Workers of America, is the majority representative and that
it has signed a collective bargaining contract with that union since
the issuance of the Board's order. For the purpose of discussion, we
assume that the claimed loss of majority has actually taken place.
We note also the Respondent's admission that the Board's order was
"just, lawful and reasonable at the time the order was issued."
More than 3 years have elapsed since the Respondent unlawfully
refused to bargain with the Union, and approximately 18 months
have passed since the Board issued its order directing the Respondent
to bargain. It is not surprising therefore that the Union should have
lost its majority during the long period of the Respondent's recalci-
trance. Employees join unions primarily in order to secure the benefits
of collective bargaining. When an employer refuses to bargain with
a union, especially when the refusal is protracted, employee support
usually withers and dies. Old employees lose interest and resign; new
employees refuse to join. The effect of an unremedied refusal to bar-
gain with a union, even where standing alone and unaccompanied by
any other unfair labor practices, is to discredit the Union in the eyes
of old and new employees, to drive them to a second choice, or to per-
suade them to abandon collective bargaining altogether 4 And when,
as here, the refusal to bargain is accompanied by a discriminatory dis-
charge, the effect of the refusal upon employees.is compounded. The
situation is not made different by any assertion that the Union's loss
of support is accounted for by factors which have nothing to do with
* Matter of Karp Metal Products Co , Inc., 51 N. L. R. B. 621 , enf'd by supplemental de-
cree dated October 23, 1943, cert denied, 332 U. S. 728 ; Franks Bros. Co, v. N. L. R. B.,
321 U S. 702; N. L. R. B. v. Swift & Company, 162 F. (2d) 575 (C A. 3).
LANCASTER FOUNDRY CORPORATION 1257
the unlawful refusal to bargain. Any attempt to disentangle these
other factors from the discouraging effect of the refusal to bargain
is impossible so long as the unfair labor practices are unremedied.5
The only way by which the Board can undo the effect of the Re-
spondent's unlawful refusal to bargain, is to require the Respondent
to bargain with the Union at this time. To refuse to do so because the
Union has lost its majority would not only leave the Respondent's
unlawful conduct unremedied, but would also obviously discourage
collective bargaining and encourage non-compliance with Board
orders in the hope and expectation that a union's majority will be dis-
sipated by delay and litigation. Nor is it material that the Respondent
has signed a collective bargaining agreement with another labor or-
ganization which allegedly now represents a majority of the Respond-
ent's employees. The contract cannot avail as an escape from the re-
quirement that the Respondent return to the status existing before it
committed the unfair labor practices.6
We do not mean to imply that because the Respondent has unlaw-
fully refused to bargain with the Union, it must deal exclusively with
that labor organization in perpetuity. We do say that the order to
bargain must be given effect for a reasonable period of time in which
it can be given a fair chance to succeed. After such a reasonable
period, the Board will, in a proper proceeding and upon a proper
showing, take steps to ascertain again the employees' choice of a bar-
gaining representative.' However, until the Respondent has expunged
the effects of its illegal refusal to bargain by first according the Union
the bargaining rights which it had illegally withheld from that
organization, we do not reach the stage for a redetermination of
representatives.
For the above reasons, we conclude that it will best effectuate the
policies of the Act to require the Respondent to bargain collectively
with the Union. Accordingly, we shall deny the Respondent's motion
to modify the Board's order of November 20, 1947.
ORDER
IT IS HEREBY ORDERED that the Respondent's motion to modify the
order issued herein on November 20, 1947, by deleting therefrom
paragraphs 1 (a), 1 (b), and 2 (a), be, and it hereby is, denied.
MEMBER GRAY took no part in the consideration of the above Sup-
plemental Findings of Fact and Order.
8 International Association of Machinists v. N. L. R. B., 311 U. S. 72.
6N. L. R. B. v. American Creosoting Company, Inc., 139 F. (2d) 193 (C. A. 6) ; Inter-
national Association of Machinists v. N. L. R. B., supra.
7 Franks Bros . Co. v. N. L. R. B., supra.