Mid-City Foundry Co.

National Labor Relations Board - Board Decisions

Oct 16, 1967

167 N.L.R.B. 795 (N.L.R.B. 1967)

MID-CITY FOUNDRY CO.
Mid-City Foundry Co . and International Union of
Mine, Mill and Smelter Workers. Case
30-CA-486
October 16, 1967
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS , AND ZAGORIA
On July 10, 1967, Trial Examiner James F.
Foley issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair practices within
the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He further found that Respondent had not en-
gaged in certain other unfair labor practices alleged
in the complaint and recommended that such allega-
tions be dismissed. Thereafter, only the Respond-
ent filed exceptions to the Trial Examiner's Deci-
sion, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Mid-City Foundry Co.,
Milwaukee, Wisconsin, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, with
the following modification:
Delete from paragraph 2(b) of the Trial Ex-
aminer's Recommended Order the words "to be
furnished," and substitute therefor the words "on
forms provided."
TRIAL EXAMINER'S DECISION
JAMES F. FOLEY, Trial Examiner: This case,
30-CA-486, was brought before the National Labor
Relations Board (herein called the Board) under Section
10(b) of the National Labor Relations Act, as amended
(herein called the Board), under Section 10(b) of the Na-
tional Labor Relations Act), 61 Stat. 136, 73 Stat. 519,
795
against Mid-City Foundry Co. (herein called Respond-
ent), on a complaint issued by the General Counsel of
the Board (through the Regional Director for Region 30
at Milwaukee, Wisconsin), on January 6, 1967, and
answer filed by Respondent on January 16, 1967. The
complaint is premised on a charge filed by the Interna-
tional Union of Mine, Mill and Smelter Workers (herein
called the Union) on November 17, 1966.
It is alleged in the complaint that on or about the middle
of October 1966, Respondent violated Section 8(a)(1) of
the Act by promising employees a wage increase if they
abandoned representation by the Union and its business
representative; and since on or about the middle of Oc-
tober 1966 violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Union in good faith, and uni-
laterally announcing and granting a wage increase, an ad-
ditional paid holiday, improved hospitalization coverage,
and new major medical coverage, after the Union was
certified by the Board on August 26, 1965, as the bar-
gaining representative of its employees, and after
Respondent in a settlement agreement executed on Au-
gust 3, 1966, and approved by the Regional Director on
August 5, 1966, agreed to bargain in good faith with the
Union. Respondent, in its answer, denied the commission
of any illegal conduct.
A hearing on the complaint and answer was held before
me, Trial Examiner James F. Foley, on February 14,
1967, in Milwaukee, Wisconsin. The parties were af-
forded an opportunity to offer evidence, make oral argu-
ment, and file briefs. Counsel for General Counsel and
Respondent filed briefs after the close of the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a Wisconsin corporation, with a principal
office and plant in Milwaukee, Wisconsin, is engaged in
the manufacture of metal castings and related products.
During the year 1966, a representative year, Respondent
purchased and received from sources outside the State of
Wisconsin goods and materials with a value in excess of
$50,000, and during the same period sold to purchasers
and shipped to destinations, outside the State of Wiscon-
sin, products valued in excess of $50,000. Respondent is
an employer engaged in and affecting commerce within
the meaning of Section 2(6) and (7) of the Act. The as-
sumption of jurisdiction of this case will effectuate the
purposes of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence'
1. Interference, restraint, and coercion
Employee Harvey Davis was the only witness who
testified for the General Counsel in support of the allega-
' By agreement of the parties, the transcript is corrected as provided in
Appendix B [omitted from publication]
167 NLRB No. 108
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion in the complaint that Respondent violated Section
8(a)(1) of the Act by promising a wage increase if the em-
ployees abandoned representation by the Union and by
the Union's business representative.
Davis testified that he was an employee of 10-1/2
years, that his job was sand mixer in the foundry depart-
ment located in the east end of the plant on the first floor,
that he worked the first shift from 5:30 a.m. to 3:30 p.m.,
5 days a week, that he had been a member of the Union
since May 1965, and a member of its bargaining commit-
tee since December 1965. Davis then testified that in the
middle of September 1966, during the middle of a week,
Ruben Bird, Respondent's plant superintendent, came by
his work station and asked him how he was doing, and he
replied that he was not doing so good; that Bird then
asked him what was wrong, and he replied that he had
been working for the same wages for the last 18 months,
and did not know how long he could go along with it; and
that Bird answered that he was pretty sure he could get a
raise, and would not have to go along with the way things
were much longer.
Davis next testified that about 2:30 in the afternoon of
a day between October 25 and November 1, 1966, when
he was servicing the molds with sand in the pattern vault
located in front of Superintendent Bird's office and about
200 feet away from his work location, he approached Bird
and Frank J. Lisi, Respondent's works manager and
Bird's superior, and said to Bird that he would like to talk
to him; that in answer to Bird's question, "What about?"
he said to Bird that sometime ago he had assured him he
would get an increase in wages, and he had not received
it; that Lisi said wages were no problem, but they could
not go along with "the other crap" they want us to go
along with; that he, Davis, then asked Bird if the reason
a wage increase could not be given was that a contract
was being negotiated, and Bird answered, "that's right",
and that Lisi then said "as soon as you get rid of Pinta,
we'll give everyone a wage increase." According to
Davis, this statement of Lisi ended the conversation.
Davis testified that Pinta was a representative of the
Union, and the conversation lasted about 2 minutes, and
that at the time of the conversation he was on the Union's
bargaining committee that negotiated with the Respond-
ent.
On cross-examination, Davis testified that when he
was a member of the Union's bargaining committee and
met with representatives of Respondent in negotiation
meetings , there were discussions of contract proposals
made by the Union, and that the proposals included a
proposal for wage increases. Davis also testified that he
recalled seeing a Board notice posted on the bulletin
board in Respondent's plant on August 9, 1966, that he
read the notice and the notice included wording to the ef-
fect that the Respondent would not change any rates of
pay or other conditions of employment without first con-
sulting and bargaining with the Union.
Plant Superintendent Bird and Works Manager Lisi,
Bird's superior, testified for the Respondent in regard to
the September and October 1966 conversations Davis
testified that he had with Bird and Lisi. Bird testified that
he had been an employee of Respondent for 16 years, but
that he had held the position of plant superintendent since
April 1966. In regard to Davis' testimony about a Sep-
tember 1966 conversation he had with him, Bird testified
that he did walk past Davis' work station in September
2 The evidence of record of these facts consists of a stipulation of the
parties, admissions in Respondent's answer of January 16, 1967, of cer-
tain allegations in General Counsel's complaint of January 6, 1967, and
1966. He said Davis called him over to his work station,
and asked if he could get off his job, so he could have an
opportunity to get a job where he could get more money,
and that he said in reply he would consider his request.
Bird testified this was all of the conversation, and the con-
versation lasted about 15 to 20 seconds. In regard to the
October 1966 conversation, Bird testified that in October
1966, he happened to be standing in the pattern vault, and
Davis came up to him and asked him if it was possible for
him to change his work hours, and he answered that he
did not think it was possible because his starting time was
pretty vital to Respondent's operation. Bird then testified
Davis said he wanted to change his starting time to give
him an opportunity to take on another job, and that he
told him he did not think he could. Bird testified that Lisi,
in his opinion, overheard the conversation as he was right
there with him. He testified that nothing else was said in
the October 1966 conversation, and he knew in Sep-
tember 1966 Davis was a member of the union bargaining
committee. In answer to a specific question, he denied
that Davis, in the October 1966 conversation, made any
reference to a promise he had made to him in the Sep-
tember conversation to give him a wage increase.
Lisi testified that he had been an employee of Respond-
ent for 15 years, and had held the position of works
manager since April 1966. He had been the metallurgist
and had held Bird's job of superintendent before he was
appointed to the position of works manager. As a
representative of Respondent, he had attended all the bar-
gaining sessions Respondent had with the Union since
April 1966. He was present at sessions or meetings which
Davis attended as a member of the union bargaining com-
mittee. At these meetings, the Union's proposals for wage
increases were discussed.
Lisi testified that he recalled a conversation that took
place between Davis and Bird on an afternoon at the end
of October 1966. He said that Bird was reviewing scrap
testers which were kept in the area in front of his office
and Bird's, and that Davis and he approached Bird, and
he overheard Davis ask Bird if there was any chance of
his having his hours changed so he might take on a second
job, that he felt he needed a second job. Lisi testified that
Bird said to Davis that in view of the importance of his
getting started on the Muller prior to anyone else starting
work early in the morning, he did not think it would be
possible. Lisi identified the Muller as the sand mixer. Lisi
then testified that it was his recollection that Bird's state-
ment that he did not think it would be possible for Davis
to change his hours closed the conversation.
Lisi testified that he did not join in the conversation,
but did join them physically, and was present with them.
He denied he said that everyone could be given a raise as
soon as they got rid of Pinta, the Union's business
representative. He denied he said raises were no problem,
but that they could not go along with the "other crap" the
Union wants. He also denied that anyone else made these
statements in his presence. He testified that he was just
an observer, that he did not say anything to Davis at the
time.
2. The refusal to bargain
The undisputed facts regarding the refusal -to-bargain
issue in this proceeding are set out in the following
paragraphs.2
documentary evidence offered by the General Counsel without objection
by the Respondent, pursuant to the stipulation
MID-CITY FOUNDRY CO.
On August 26, 1965, the Board certified the Union as
the exclusive bargaining representative for Respondent's
production and maintenance employees, at its Milwau-
kee, Wisconsin, location. On March 30, 1966, the Union
filed an unfair labor practice charge against Respondent
in which it charged it with a refusal to bargain. The Union
amended the charge on June 8 and July 1 and 5, 1966, to
include charges of conduct violative of Section 8(a)(1)
and (3) along with the Section 8(a)(5) refusal-to-bargain
charge. On July 12, 1966, the General Counsel, through
the Regional Director, issued a complaint against Re-
spondent in which it was alleged that the Respondent vio-
lated Section 8(a)(5) of the Act by refusing to bargain
since on or about September 30, 1965, and violated Sec-
tion 8(a)(1) and (3) of the Act by certain specified acts and
conduct In an answer filed July 25, 1966, Respondent
denied engaging in the illegal conduct alleged in the com-
plaint. The Regional Director issued a notice of hearing
at the time of issuance of the complaint in which he
scheduled a hearing on the complaint and the answer for
August 9, 1966.
On August 3, 1966, the Respondent and the Union ex-
ecuted a settlement agreement (herein called the Agree-
ment) which was approved by the Regional Director on
August 5, 1966. In the Agreement, Respondent promised
that on request it would bargain in good faith with the
Union as the exclusive representative of its production
and maintenance employees at its Milwaukee plant. The
Agreement includes the statement that nothing in it "shall
be construed as an admission or finding that the Company
was engaged in conduct in violation of the Act." The Re-
gional Director vacated and set aside the notice of hear-
ing scheduling a hearing for August 9, 1966.
Negotiations for a collective-bargaining agreement
were resumed by the Respondent and the Union. Bar-
gaining sessions were held on September 6 and October
25, 1966, and a bargaining session was scheduled for
November 4, 1966. The Regional Director in a letter of
compliance dated October 19, 1966, closed the unfair
labor practice case against Respondent, but with the con-
dition that the closing was conditioned on Respondent's
continued observance of the Agreement and did not
preclude further proceeding if subsequent violations oc-
curred. On November 3, 1966, Ivan E. Lacey, an em-
ployee of Respondent, filed with the Regional Director a
petition for decertification of the Union as exclusive bar-
gaining representative as certified by the Board, by the
Regional Director, on August 26, 1965. Eighty-two other
employees supported Lacey's petition. There were ap-
proximately 116 employees in the unit of production and
maintenance employees at the time of the filing. On the
day of the filing of the petition for decertification,
November 3, 1966, Respondent notified the Union that
it would not meet with it on November 4, as scheduled.
Respondent has refused to recognize the Union as bar-
gaining representative, or to meet with it to negotiate
since the filing of the petition. It has taken the position
that the filing of the petition has raised a substantial
question regarding representation which should be
resolved before there is any further bargaining. During
the week beginning December 5, 1966, Respondent an-
nounced to its employees that Thanksgiving Day in 1967
would be a paid holiday, and during the week beginning
December 19, 1966, it announced, and placed in effect
shortly thereafter, wage classification adjustments and
rate revisions resulting in wage increases to some em-
ployees, and improved hospitalization coverage with a
797
new major medical rider. These actions were taken
without notice to the Union or bargaining with it
On November 8, 1966, the Regional Office of the
Board in Milwaukee, by Field Examiner Kenneth N.
Rock, informed Petitioner Lacey by letter that his peti-
tion for decertification was untimely in view of Respond-
ent's agreement to bargain in good faith with the Union
contained in the Agreement of August 3, 1966, approved
by the Regional Director on August 5, 1966. A copy of
the letter to Lacey was sent to Respondent, and a copy
was sent to Respondent's attorneys. On November 9,
1966, Respondent's attorneys acknowledged receipt of
the copy of the letter to Lacey, and replied that Respond-
ent had bargained for a reasonable time after the execu-
tion of the Agreement, had bargained to a "point of im-
passe" prior to the filing of the petition, and that em-
ployee Lacey's petition should be thoroughly in-
vestigated. The attorneys represented that Section 9(c)(1)
of the Act required the investigation They also stated
that the petition should not be dismissed, or should a
withdrawal of it be accepted by the Regional Director. In
his letter of November 8 to Lacey, Field Examiner Rock
requested Lacey to withdraw the petition. He informed
Lacey that if he did not receive his withdrawal request by
November 9, 1966, he would recommend dismissal of the
petition.
On Nvember 17, 1966, the Regional Director, by letter
to Petitioner Lacey, dismissed the petition for decertifica-
tion as untimely in view of Respondent's promise to bar-
gain in good faith in the Agreement. Petitioner Lacey was
informed that he could seek a review of this dismissal by
filing a request for review with the Board in Washington,
D.C., within 10 days from the date he received the Re-
gional Director's letter. On November 17, the Union
filed the unfair labor practice charge against Respondent
on which the complaint before me of January 6, 1967, is
premised. As stated supra, General Counsel contends
that Respondent has violated Section 8(a)(5) of the Act
by refusing to bargain on and after November 3, 1966,
contrary to its promise to bargain in the Agreement which
was approved by the Regional Director on August 5,
1966. Respondent in its answer of January 16, 1967,
makes the affirmative defenses that it met and bargained
with the Union from August 5 to November 3, 1966, and
thereby complied with the terms of the Agreement, and
refrained from bargaining thereafter because of a good-
faith doubt of the status of the Union as bargaining
representative of a majority of its employees raised by the
petition for decertification filed on November 3, 1966.
Respondent further defends in its answer that the Board
erred in dismissing the petition for decertification on
November 17, 1966, without investigation of its merits,
and that since the date of November 17, 1966, it has chal-
lenged the validity of this Board action.
B. Analysis and Concluding Findings
1. Alleged violations of Section 8(a)(1) of the Act
Upon consideration of the oral testimony of employee
Davis, Superintendent Bird, and Works Manager Lisi,
their demeanor testimony evaluated in context, and the
undisputed background evidence, I credit the testimony
of Bird, corroborated by the testimony of Lisi, and do not
credit the testimony of Davis, in regard to conversations
Davis had with Bird in September and October 1966. I
conclude and find that about the middle of September
16
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1966, when Bird was passing through the foundry depart-
ment where Davis was working, Davis called Bird to his
work station, and asked him if he could be taken off his
job of sand mixer so he would have an opportunity to get
a job that would pay more money, and Bird replied that he
would consider his request. I find nothing violative of the
Act in Bird's response to Davis' question. He did not
promise Davis any benefit. Moreover, there is no
evidence that Davis received any benefit from Respond-
ent.
I also conclude and find that on an afternoon at the end
of October 1966, Davis approached Bird in the pattern
vault and asked him if it was possible for him to change
his starting time so he would have an opportunity to take
a second job, and the latter told him he did not think he
could. Davis, a sand mixer on the first shift, began work
at 5.30 a.m. I find nothing violative of the Act in this
reply of Bird. I credit Lisi's testimony that while he was
physically present during the conversation he did not say
anything, and what was said was spoken by Davis and
Bird I credit his denial that he said that every one of the
employees could be given a raise as soon as they got rid
of Pinta, the union representative, and that raises were no
problem, but that Respondent could not go along with the
other things the Union wanted. I also credit his denial
that anyone made these statements in his presence. Con-
sideration of the background evidence, which shows
knowledge by Davis, Bird, and List that wage increases
were being negotiated, and that Respondent could not
give wage increases unilaterally, persuades me that the
testimony of Davis is not credible testimony
I, therefore, conclude and find that General Counsel
has not shown by preponderance of the evidence that
Respondent has violated Section 8(a)(1) of the Act by
promising to grant wage increases unilaterally to em-
ployees as alleged in the complaint.
2. Alleged refusal to bargain
The following is undisputed: On August 26, 1965,
Respondent was certified as collective-bargaining
representative of Respondent's production and main-
tenance employees; on July 12, 1966, the General Coun-
sel issued a complaint in which Respondent was charged
with refusing to bargain since on or about September 30,
1965, pursuant to the certification; Respondent and
Union entered into a settlement agreement (herein called
Agreement) on August 3, 1966, which was approved by
the Regional Director on August 5, 1966, in which
Respondent promised to bargain in good faith with the
Union, on request, as a result of the Agreement, the
parties began bargaining, and the Regional Director
vacated his notice of hearing scheduling a hearing on the
complaint for August 9, 1966, and closed the unfair labor
practice case against Respondent on October 19, 1966,
with the condition that Respondent continue to comply
with the Agreement and that future proceedings could be
initiated if there were subsequent violations; Respondent
ceased bargaining on November 3, 1966, when an em-
ployee filed with the Regional Director a petition for de-
certification of Respondent as bargaining representative
supported by 83 of approximately 116 employees in the
appropriate unit; Respondent has refused to bargain with
the Union since November 3, 1966, on the ground that
the petition gives rise to a substantial question regarding
representation which should be resolved before there is
any further bargaining; the Regional Director on
November 17, 1966, dismissed the petition for decertifi-
cation as untimely, and the Respondent contends that the
Regional Director erred in taking such action; the Re-
gional Director on behalf of the General Counsel issued
a complaint on January 6, 1967, in which Respondent
is charged with refusing to bargain pursuant to the
Agreement in violation of Section 8(a)(5) of the Act;
Respondent denies any violation in its answer, and con-
tends that it bargained for a reasonable time in ac-
cordance with the Agreement from August 5 to
November 3, 1966, and legally refused to bargain on
November 3, and thereafter, because of a substantial
question regarding representation raised by the petition
of November 3, 1966, and that the Board erred on
November 17, 1966, when it dismissed as untimely the
petition of November 3, 1966.
In Poole Foundry & Machine Company3 the Board
found that the Company refused to bargain when it
ceased bargaining 3-1/2 months after it executed a settle-
ment agreement in which it promised to bargain , when an
employee filed a petition for decertification supported by
64 of 66 employees in the appropriate unit. As in the
proceeding here, the settlement agreement was given as
a substitute for a hearing on a complaint of a refusal to
bargain leading to a Board order, and the Regional
Director dismissed the decertification petition as untime-
ly. The Board held that the parties should bargain for a
reasonable time after executing a settlement agreement in
which they agree to bargain where the settlement agree-
ment is executed in lieu of proceeding on a complaint al-
leging a refusal to bargain pursuant to a certification.
The Board, with the support of the courts, has met the
contention of the Respondent in this case that there is no
obligation to bargain after the execution of a settlement
agreement when a petition for decertification raises a sub-
stantial question of representation, at least until the
merits of the petition are determined and if the merits dis-
close that the certified union does not represent a majori-
ty of the employees, by holding that to achieve the labor
peace contemplated by the Act the obligation to bargain
for a reasonable time in accordance with the settlement
agreement takes precedence over any substantial
question regarding representation arising from a petition
for decertification filed within the reasonable time
period.4 The Board held in Stunt Lithograph, Inc., supra,
that the Midwest Piping5 doctrine is applicable only
where there exists a real question regarding representa-
tion, and where there is outstanding an obligation to bar-
gain for a reasonable time a petition raising the question
z 95 NLRB 34, 35-36, enfd 192 F 2d 740 (C A 4), cert denied 342
U S 954 The Board with court approval has followed its decision in
Poole Foundry & Machine Co in W B Johnston Grain Company, 154
NLRB 1115, enfd 365 F 2d 582 (C A 10), MacDonald and Sons, Inc,
155 NLRB 67, enfd 62 LRRM 2296 (C A I), and Stant Lithograph,
Inc, 131 NLRB 7, enfd 297 F 2d 782 (C A D C) See also Shurtenda
Steaks, Inc, 161 NLRB 957, and Frank Becker Towing Company, 151
NLRB 466
Poole Foundry& Machine Co, 95 NLRB 34, 35-36, enfd 192 F 2d
740, 743 See also W B Johnston Grain Company, et al, supra, and W
B Johnston Grain Company, et al v N L R B , 365 F 2d 582, 586 (C A
10)
Midwest Piping and Supply Co, Inc, 63 NLRB 1060, Shea Chemi-
cal Corporation, 121 NLRB 1027, 1029
MID-CITY FOUNDRY CO.
of majority representation does not raise a real question
regarding representation.
On the Board's decisions in Poole Foundry and
Machine and MacDonald and Sons, supra, I conclude
and find that Respondent refused to bargain in violation
of Section 8(a)(5) and (1) of the Act when it ceased bar-
gaining on November 3, 1966, after promising to bargain
in the settlement agreement of August 3, 1966, approved
by the Regional Director on August 5, 1966. The em-
ployee petition for decertification filed on November 3,
1966, did not raise a real question regarding representa-
tion, and 3 months of bargaining after the settlement
agreement did not constitute a reasonable time. The
Board found in MacDonald and Sons, supra, that 6
months was less than a reasonable time, and in Poole
Foundry and Machine that 3-1/2 months was less than a
reasonable time . There is no defense here that Respond-
ent and the Union had bargained to an impasse, as in
The Daily Press, Incorporated, 112 NLRB 1434.
Respondent raised this point in.its letter of November 9,
1966, but no evidence of an impasse is before me. The
record shows that Respondent and the Union had met on
September 6 and October 25, 1966, and planned to meet
again on November 4, 1966. The November 4 meeting
was canceled on November 3, 1966, the day the em-
ployee petition for decertification was filed Counsel for
Respondent in this unfair labor practice proceeding has
stated that Respondent relies only on the petition for
decertification and its bargaining for 3 months prior to its
filing. For the reasons stated above, I do not find this
defense adequate.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with Respondent's
operations described in section I, above, have a close, in-
timate, and substantial relationship 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. THE REMEDY
Having found that Respondent has engaged in a refusal
to bargain in violation of Section 8(a)(5) and (1) of the Act
by refusing to meet and bargain with the Union for a
reasonable time after the Agreement and by unilaterally
making changes in wages and working conditions, I shall
recommend that it cease and desist from engaging in such
conduct. I shall not, however, recommend that it be
required to withdraw any benefits granted to employees
that it has unilaterally given and which are now in effect.
There should have been bargaining for at least a year fol-
lowing the certification, and for a reasonable time after
the Agreement. The reasonable period of time should
compensate for the failure to bargain during any period of
the certification year. The General Counsel charged
Respondent in the complaint that was settled by the
Agreement with refusing to bargain from September 30,
1965. The certification was issued by the Board on Au-
gust 25, 1965. So there was no refusal to bargain for the
first month of the certification year. It is undisputed that
Respondent and the Union bargained for 3 months fol-
lowing the Agreement. Therefore, I shall recommend that
Respondent be required to bargain for at least a period of
799
8 months from the date on which the Respondent and the
Union resume bargaining, and if an agreement is reached
to embody it in a signed written contract. The status of
the Union as majority representative can be tested by ap-
propriate proceedings before the Board after bargaining
for a reasonable time has taken place. I shall also recom-
mend that the complaint be dismissed insofar as it alleges
an independent violation of Section 8(a)(1) of the Act. I
have found that the General Counsel has not proved that
this violation occurred
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
2. Respondent has violated Section 8(a)(5) and (1) of
the Act by refusing to bargain with the Union, the cer-
tified bargaining representative of an admittedly ap-
propriate unit of Respondent's production and main-
tenance employees, for a reasonable time following its ex-
ecution of a settlement agreement with the Union on Au-
gust 3, 1966, and its approval by the Regional Director
on August 5, 1966, and by unilaterally granting em-
ployees an additional paid holiday, making wage classifi-
cation adjustments and rate revisions resulting in wage in-
creases, and granting to employees improved hospitaliza-
tion coverage with a new major medical rider.
3 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
4. Respondent has not violated Section 8(a)(1) of the
Act by promising wage increases to employees if they
abandoned the Union and the union business representa-
tive as alleged in the complaint.
Upon the basis of the entire record, findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
RECOMMENDED ORDER
Mid-city Foundry Co., its officers, agents, successors,
and assigns shall
1. Cease and desist from:
(a) Refusing to bargain collectively with International
Union of Mine, Mill and Smelter Workers, the certified
bargaining representative of its production and main-
tenance employees, with respect to wages, hours, and
other terms and conditions of employment, by refusing to
meet and bargain with this certified bargaining represen-
tative, and by announcing or placing in effect any uni-
lateral adjustments in wage classifications or revisions in
wage rates, changes in hospitalization coverage, including
medical riders, or any other unilateral changes in wages,
hours, and other terms and conditions of employment.
This provision, however, does not require Respondent
Mid-City Foundry Co. to withdraw any employee
benefits presently in effect.
(b) In any like or related manner interfering with the
efforts of International Union of Mine, Mill and Smelter
Workers to negotiate for and represent its production and
maintenance employees excluding office clerical em-
ployees, professional employees, guards and supervisors
as defined in the Act.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Interna-
tional Union of Mine, Mill and Smelter Workers as the
exclusive representative of its employees in an ap-
propriate unit of production and maintenance employees,
excluding office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act, for
at least 8 months from the date it resumes bargaining with
the Union, and embody any understanding reached in a
written agreement.
(b) Post at its place of business in Milwaukee, Wiscon-
sin, copies of the attached notice marked "Appendix A "s
Copies of said notice, to be furnished by the Regional
Director for Region 30, after being duly signed by
Respondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.7
IT IS ALSO RECOMMENDED that the Board dismiss the
complaint insofar as it contains the allegation that
Respondent violated Section 8(a)(1) of the Act by
promising employees a wage increase if they abandoned
representation by the Union and by Union Representa-
tive Pinta.
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the date of the receipt of this Trial Ex-
aminer's Decision and Rcommended Order the Respon-
dent notifies the Regional Director, in writing, that it will
comply with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid.
Dated By
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT refuse to bargain collectively with
the International Union of Mine, Mill and Smelter
Workers as the certified exclusive bargaining
representative with respect to wages, hours, and
other terms and conditions of employment by refus-
ing to meet and bargain with this Union on behalf of
our production and maintenance employees, or by
making adjustments in wage classifications, revisions
in wage rates, changes in hospitalization coverage
and its medical rider, or by making other changes in
wages, hours, and other terms and conditions of em-
ployment of our production and maintenance em-
ployees, without negotiating such changes with the
Union, and seeking to reach an agreement thereon.
WE WILL NOT, in any like or related manner, inter-
fere with the efforts of International Union of Mine,
Mill and Smelter Workers to negotiate for and
represent our production and maintenance em-
ployees.
WE WILL bargain, upon request, with International
Union of Mine, Mill and Smelter Workers as the ex-
clusive representative of our production and main-
tenance employees, and embody in a written signed
agreement any understanding reached with this
Union regarding these employees.
MID-CITY FOUNDRY CO
(Employer)
6 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
APPENDIX A
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 2nd Floor,
Commerce Building, 744 North 4th Street, Milwaukee,
Wisconsin 53203, Telephone 272-386 1.