The Cincinnati Steel Castings Co.

National Labor Relations Board - Board Decisions

Oct 19, 1949

86 N.L.R.B. 592 (N.L.R.B. 1949)

In the Matter of THE CINCINNATI STEEL CASTINGS COMPANY and
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, AND ITS LOCAL
UNION No. 647
Case No. 9-CA-91.-Decided October 19, 1949
DECISION
AND
ORDER
On June 13, 1949, Trial Examiner James J. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief; the Respondent filed
a brief in support of the Intermediate Report.
The Board 1 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 In-
termediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, except insofar as they are inconsistent with
the findings, conclusions, and order hereinafter set forth.
1. We agree with the Trial Examiner that the Respondent has not
refused to bargain with the Union, within the meaning of Section 8
(a) (5) of the Act.
The General Counsel contends that the Respondent refused to bar-
gain by: (a) refusing, during the bargaining negotiations in 1948,
to furnish, upon request of the Union, the names of all the employees
in the bargaining unit, their wage rates and classifications; (b) taking
an adamant position on issues other than wages; and (c) refusing
to sign a written agreement on December 23, 1948, incorporating
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
(Chairman Herzog and Members Reynolds and Gray].
86 N. L. R. B., No. 83.
592
THE CINCINNATI STEEL CASTINGS COMPANY 593
mutually agreed terms and providing for the reinstatement of the
employees who had been on strike. We find no merit in these
,contentions.
It is true that the Respondent, throughout the bargaining con-
ferences, refused to comply with the Union's request for a written
list of the names of the employees in the bargaining unit, with their
classifications and wage rates.2 On September 7, 1948, however, it
offered to furnish, orally, information as to the classifications and
wage rates of any and all employees specifically named by the Union.
By referring to a list in their possessiOn,3 the union representatives
thereupon inquired about approximately 70 percent of the employees
in the unit; and the Respondent furnished all the information so
requested. It does not appear that the Respondent was at any time
thereafter unwilling to furnish further information in the same
manner.4
As we have frequently held, an employer's refusal, during bar-
gaining negotiations, to furnish necessary information to the repre-
sentative of his employees shows a lack of good faith in bargaining,
and constitutes, in itself, a violation of Section 8 (a) (5) of the Act .5
However, we have not held, nor do we now hold, that the employer
is obligated to furnish such information in the exact form requested
by the representative. It is sufficient if the information is made
available in a manner not so burdensome or time-consuming as to
impede the process of bargaining.
We agree, as the General Counsel contends, that it was necessary
for the Union in this case to have full information as to the names
of the employees in the unit, their wage rates, and their classifica-
tions in order for it intelligently to represent the employees in the
contract negotiations. However, the Union already had a list of
2 The Respondent took the position that it was unwilling to have such a list "scattered
around or kicked around promiscuously."
3 The list used by the Union at this meeting is not clearly Identified. The record shows,
however, that the Respondent, in accordance with the terms of its 1947 contract with the
Union, had previously furnished to the Union a list of the employees in order of seniority,
and this list was admittedly used by the Union, on or about September 10, to prepare a
list of all the employees with the individual increases proposed by the Respondent and
the Union respectively.
4 Although we find nothing in the record to support the Trial Examiner's finding that
the Respondent, at the meeting on September 29, specifically repeated the offer made on
September 7, the record as a whole Indicates that the Respondent's only objection after
September 7 was to furnishing the information sought by the Union in the form of a
written list. There is uncontradicted testimony that at a meeting on September 9,
Leonard Geiser, the Respondent's president, offered to give Lewis Strickland, one of the
union representatives, any information he needed if he would come to the plant.
6Matter of Aluminum Ore Company, 39 N. L. It. B. 1286, enfd. 131 F. 2d 485 (C. A. 7) ;
Matter of J. H. Allison & Company, 70 N. L. R. B. 377, enfd. 165 F. 2d 766 (C. A. 6),
cert. denied, 335 U. S. 905; Matter of Vanette Hosiery Mills, 80 N. L. R. B. 1116; Matter
of Dixie Manufacturing Company, 79 N. L. It. B. 645; Matter of National Grinding Wheel
Company, 75 N. L. R. B. 905; Matter of Sherwin-Williams Company, 34 N. L. It. B. 651.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees in the unit, and on and after September 7, could have
obtained the rest of the information it desired in the manner sug-
gested by the Respondent. As there were only 98 employees in the
unit, we do not regard the Respondent's insistence on furnishing
this information orally, rather than by a written list, as evidence
of bad faith.
As to the General Counsel's second contention, we said in the Na-
tional Maritime Union case 6 that "an employer's intransigeance on a
particular issue has been found to evidence bad faith in bargaining
where the record as a whole has indicated that such intransigeance re-
flected an intention to avoid coming to any agreement." But in this,
case, although the Respondent refused to accede to the Union's de-
mands with respect to union security, improved vacations, and in-
creased insurance benefits, and made only a minor concession with re-
spect to paid holidays, it was willing, at all times, to discuss these and
other proposals made by the Union, and made substantial concessions
on wage issues. Under these circumstances, and in view of its previous
contractual relations with the Union, we are not persuaded that the
Respondent's intransigeance on certain issues indicated an intention on.
its part to avoid coming to any agreement. We therefore find, as did.
the Trial Examiner, that the Respondent's position on these issues did
not constitute a refusal to bargain in good faith.?
Finally, we find nothing in the record to support the General Coun-
sel's contention that the Respondent, on December 23, 1948, refused.
to sign a contract. The purpose of the meeting on that date, accord-
ing to the testimony of William Kircher, the union representative, was.
merely to reach an agreement as to the Respondent's final position on
the issues in dispute. After the Respondent stated its position,
Kircher asked whether it would sign a contract on these terms. The
Respondent requested time to consider the matter. The Union agreed,.
and it was arranged to hold another meeting.
At the next meeting, on January 21, 1949, the Respondent offered.
to sign a contract incorporating the terms to which it had previously
agreed and a provision for the preferential hiring of the strikers-
Kircher said that he would have to submit this offer to the member-
ship of the Union, but added that the Union expected the Respondent
to take back all the strikers at once upon the signing of the contract.
This the Respondent was unwilling to do. However, the strike had
not been caused or prolonged by unfair labor practices; 8 and the,
6Matter of National Maritime Union, 78 N. L. R. B. 971 , enfd . 175 F. 2d 686 (C. A. 2).
7 In so finding , however, we do not adopt the Trial Examiner's interpretation of Sec-
tion 8 (d) of the. Act.
8 As found below, during the strike the Respondent unlawfully solicited strikers to re-
turn to work, in derogation of the authority of the Union. It is not contended , however,
THE CINCINNATI STEEL CASTINGS COMPANY 595.
Respondent was therefore under no obligation to agree to this pro-
posal. Accordingly, its failure to sign a contract conditioned on the-
immediate reinstatement of the strikers did not constitute a refusal
to bargain, within the meaning of the Act.
2. As the strike, which lasted from September 29 to December 5,..
1948, was not caused or prolonged by unfair labor practices, as there-
were no vacancies when the strikers offered to return to work on Decem-
ber 6, 1948, and as the Respondent recalled strikers to fill all vacancies
occurring after the date, we agree with the Trial Examiner that the.
Respondent did not violate Section 8 (a) (3) of the Act by refusing-
to. reinstate the strikers immediately upon termination of the strike.9"
3. The Trial Examiner found that the Respondent had not engaged.
in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act. We do not wholly agree.
At the time of the strike, the Union was the duly designated
representative-of the Respondent's employees. The Respondent was.
therefore obligated to deal with it, and not with the employees
individually" The record shows, however, that during the strike
two of the Respondent's supervisors, Robert Ragan and Smith Con-
,
ell,"' repeatedly solicited individual strikers to return to work ":
and there is no evidence to show, that these unfair labor practices prolonged the strike or-
even tended to do so.
0 N. L. R. B. V. Mackay Radio & Telegraph Co., 304 U. S. 333.
10 J. I. Case Co. v. N . L. R. B., 321 U. S . 332; Medo Photo Supply Corp. v. N. L. R. B.,.
321 U. S. 678.
. -11 Ragan , the Respondent 's maintenance foreman, is clearly a supervisor . Conwell's:
status is less clear . Plant Superintendent Fred Geiser described him as a "sort of straw
boss," and testified that he is "in charge of the furnace " ; that he transmits Geiser ' s orders
to approximately 55 employees , including 5 furnace department employees , 30 shake out
men, pourers , and other laborers , and 30 molders ; that he assigns these men to jobs that
Geiser tells him should be done ; that the men ask his permission when they want to.
take time off or to leave early ; and that he gives them such permission if he thinks he can,
spare them , or else consults Geiser. Conwell himself testified that he is " head man on the
furnace" and that there are 4 other men in the department , but denied that he has any
other employees under him . According to his further testimony, however, he tells some
of the men what castings they want , shows the metal pourers how much the mold takes
and how to mold , and sometimes works with laborers , seeing that they take care of the,
metal . He admitted that some of the men have asked him for time off, but said that in;
such cases he refers them to Geiser unless Geiser is not there when he tells them to use-
their own judgment.
His testimony on this point was contradicted by that of several employees who said that
he had given them time off without consulting Geiser. Employee witnesses described him,
variously as "foreman in the Melting Division ," -"boss over the electric furnace," and as.
being "over the furnace cleaning and shakeout , metal pouring." The record further
shows that Conwell , unlike the other employees , is paid on a salary basis ; that he is not
within the bargaining unit ; and that he did not vote , and was not eligible to vote, in the
Board election in 1947. On the basis of the above testimony , and the record as a whole, we
find that Conwell is a supervisor , within the meaning of Section 2 ( 11) of the Act. See-
also Matter of Sioux City Brewing Conl.pan, , 82 N. L. R. B. 1061.
1' Both Ragan and Conwell denied having engaged in such conduct , but on the record as
a whole we find their denials unconvincing , and credit the testimony of the employees
involved.
.596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.As we have previously held, such conduct on the part of an employer
or his representatives necessarily has the effect of undermining the
authority of the bargaining representative of his employees, and
thereby unlawfully interferes with the right of the employees to bar-
gain collectively, in violation of Section 8 (a) (1) of the Act 13
The Respondent contends, however, that: (1) it is not responsible
for the antiunion conduct of its supervisors because it had previ-
ously instructed them to maintain a neutral attitude with respect to
union activities; and (2) their conduct was, in any event, protected
:under Section 8 (c) of the Act 14 We find no merit in these con-
tentions.
Although there is some evidence that the Respondent had told its
:supervisors "to assume absolutely a neutral position, to make no
statements for or against the Union," there is no showing that the
employees were ever notified of these instructions 15 Without such
notice, an employer cannot validly disclaim responsibility for anti-
union conduct on the part of his supervisors on the ground that they
were acting contrary to his orders 1B
As to the Respondent's second contention, it is true that, in solicit-
ing individual strikers to return to work, Ragan and Conwell made
no threats of reprisal or force and promised no benefits. In our
opinion, however, their conduct constituted more than the expression
of "views, argument, or opinion," protected by Section 8 (c).
We therefore find, contrary to the Trial Examiner, that by solicit-
ing individual strikers to return to work, in derogation of the author-
ity of their exclusive bargaining representative, the Respondent
engaged in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
.THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, occurring in
connection with the operations of the Respondent described in Sec-
13 Matter of Sam'l Bingham's Son Mfg. Co., 80 N. L. R. B. 1612; Matter of Cathey
Lumber Company, 86 N. L. R. B. 157.
14 Section 8 (c) reads as follows :
The expressing of any views, argument, or opinion , or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be evi-
dence of any unfair labor practice under any of the provisions of this Act , if such
expression contains no threat of reprisal or force or promise of benefit.
15 According to Plant Superintendent Geiser, the Respondent had at one time posted a
statement of neutrality on its bulletin board. It appears, however, that this notice was
posted early in 11547, before the Board election at the plant ; that it was merely to the
effect that the employees " were privileged to belong to a union or not belong to a union
as they saw fit" ; and that it remained posted only about 3 months.
1e Matter of Wadesboro Full-Fashioned Hosiery Mills , Incorporated, 72 N. L. It. B. 1064,
and cases therein cited.
THE CINCINNATI STEEL CASTINGS COMPANY 597
tion I of the Intermediate Report, have a close, intimate, and sub-
stantial 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.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
SUPPLEMENTAL CONCLUSIONS OF LAW
1. By soliciting individual strikers to return to work, in deroga-
tion of the exclusive bargaining status of International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America, CIO, and its Local Union No. 647, the Respondent has
engaged in, and is engaging in, unfair labor practices within the
meaning of Section 8 (a) (1) and Section 2 (6) and (7) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the Respondent, The Cincinnati
Steel Castings Company, Cincinnati, Ohio, and its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Soliciting individual employees to take action in derogation
of the exclusive bargaining status of International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, CIO, and its Local Union No. 647;
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist International Union,
United Automobile, Aircraft and Agricultural Implement Workers of
America, CIO, and its Local Union No. 647, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right
867351-50-vol. 86-39
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may be affected'by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant at Cincinnati, Ohio, copies of the notice at-
tached hereto, marked "Appendix A."'17 Copies of said notice, to be
furnished by the Regional Director for the Ninth Region, shall, after
being duly signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
eluding 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;
(b) 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.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondent engaged in unfair
labor practices within the meaning of Section 8 (a) (3) and Section
8 (a) (5) of the Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 NOT solicit individual employees to take action in der-
ogation of the exclusive bargaining status of INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA, CIO, and its LOCAL UNION No. 647.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
the above-named unions or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities except to the extent that such
17 In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted, before the words, "A DECISION AND ORDER,'; the words : "A
DECREE OF' THE UNITED STATES COURT OF APPEALS ENFORCING."
THE CINCINNATI STEEL CASTINGS COMPANY 599
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the National Labor Relations Act.
THE CINCINNATI STEEL CASTINGS COMPANY,
Employer.
By ----------------------------------------------
(Representative ) ( Title) .
Dated --------------------
This. notice must remain posted for 60 clays from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Allen Sinsheinver, Jr., Esq., and Alan A. Bruckner, Esq., for the General Counsel.
James R. Clark, Esq., and Burton E. Robinson, Esq., of Clark & Robinson, Cin-
cinnati, Ohio, for the Respondent.
Mr`.'Jamnes T. Wynn, and Mr. William McKinley Balls, of Cincinnati, Ohio,
for the Union.
STATEMENT OF THE CASE
Upon a second amended charge filed by International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, CIO, and its Local
Union No.. 647, herein called the Union, the General Counsel of the National
Labor Relations Board, herein called the General Counsel and the Board. 'the
Regional Director for the Ninth Region (Cincinnati, Ohio) issued his amended
complaint dated January 12, 1949, against The Cincinnati Steel Castings Com-
pany, Cincinnati, Ohio, herein called the Respondent which alleged that the
Respondent did engage in and has continued to engage in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1), (a) (3), and (a)
(5), and Section 2 (6) and 2 (7) of the National Labor Relations Act (49 Stat.
449-457), as amended by 61 Stat. 136-1.63, herein called the Act. Copies of
the amended complaint, the charge and amended charges, and notice of hearing
were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance :
that the Respondent on or about August 13, 1948, and at all times thereafter,
has failed to'bargain collectively in good faith with the Union as the exclusive
representative of the employees in an appropriate unit; that on or about Septem-
ber 29, 1948, the following named persons, among others, ceased work con-
certedly and went on strike as a result of the Respondent's unfair labor practices :
Clifford Benford
Dan Bonner
Lorenzo Braddock
Woodrow Brantley
John H. Butler
William Butler
Henry Menefield
Hillard Moore
Robert Nelson
Dexter Oliver
Lloyd Palmore
Dawson Pettaway
Willie Clark
Charles Collier
William Dennis
John Dillard
Tolley Dubose
John Duncan
James L. Eberhardt
Charles Edison
Henry Edwards
Wallace Hallback
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Christopher Hanson
Clifford Houze
Ray Grissom
Van Jackson
Cornelius Jones
Henry Jones
Tom Lacey
Walter McBeth
Tommy Metts
Will Minder
James Porter
John Pritchett
Richard Rails
William M. Rails
Mose Riyouse
Ike Rogers
Jacob Ryan
Louis Sanders
John Slaughter
Ed Steinhauer
George Stevenson
Charles Thomas
James Thomas
Willie Turner
James Vandivier
Ike Watkins
Edward Wynn
James Wynn
Floyd Younger
James Brown
That on or about December 6, 1948, the Union abandoned the strike and on or
about that date, or shortly thereafter, the Respondent refused reinstatement
to, and terminated the employment of the above-named strikers, except George
Stevenson, because of their participation in said strike or their membership
in and activities on behalf of said Union; that it has continued to fail and refuse
to reinstate the above-named strikers because of their participation in said
strike or their membership in and activities on behalf of said Union, with the
possible exception of John H. Slaughter, Tom Lacey, and John Pritchett, who
were given employment at times subsequent to December 6, 1948; that the
Respondent during the course of said strike interfered with, restrained, and
coerced its employees by informing said strikers that it was not going to, meet
with the Union and by attempting to cause employees to abandon the Union and
return to work, thereby engaging in an improper course of conduct.
In its answer, duly filed, the Respondent admitted the jurisdictional allega-
tions of the complaint, but denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held in Cincinnati, Ohio, on various dates
between January 27 and February 8, 1949, before the undersigned Trial Exam-
iner. The General Counsel and the Respondent were represented by counsel,
and the Union by lay representatives. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. At the end of the hearing counsel for the Respondent
moved to dismiss the complaint. Ruling thereon was reserved by the under-
signed. It is hereby denied in part and granted in part, as will be more clearly
shown hereinafter. At the end of the hearing the General Counsel moved to
conform the complaint to the proof as regards minor matters such as names,
dates, and the like. The motion was granted without objection. At the end
of the hearing counsel for the Respondent and the General Counsel argued
orally before the undersigned. The parties were advised of their right to file
proposed findings of fact, conclusions of law, and briefs in support thereof.
Briefs have been received from the General Counsel and the Respondent. They
have been given careful consideration by the undersigned.
Upon the entire record in the case, and from his observation of the witnesses
the undersigned makes the following :
THE CINCINNATI STEEL CASTINGS COMPANY 601
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Cincinnati Steel Castings Company, a corporation duly incorporated in
the State of Ohio in 1909, with its principal office and place of business in
Cincinnati, Ohio, where it is engaged in the manufacture of steel and alloy
castings.
During the past 12-month period it purchased raw materials, and equipment
valued in excess of $100,000, of which approximately 20 percent was shipped
from points outside the State of Ohio.
During this same 12-month period the value of its finished products was in
excess of $100,000, of which approximately 20 percent was shipped to points
outside the State of Ohio.
The Respondent concedes that it is engaged in interstate commerce within
the meaning of the Act, and the undersigned so finds.
II. THE ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft, and Agricultural Imple-
ment Workers of America, CIO, and its Local Union No. 647 is a labor organi-
zation within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain collectively in good faith
1. The appropriate unit
The complaint alleges, the Respondent admits, and the undersigned finds that
all production and maintenance employees of the Company, excluding superin-
tendents, foremen, assistant foremen, office and clerical employees, guards, pro-
fessional employees as defined in Section 2, subsection (12) of the Act, and all
other supervisory employees as defined in Section 2, subsection (11) of the Act
constitute a unit appropriate for the purposes of collective- bargaining within
the meaning of Section 9 (a) of the Act.
2. Representation by the Union of a majority in the appropriate unit
On May 7, 1947, the Union was certified by the Board as the exclusive repre-
sentative of all employees in the above found appropriate unit for the purposes
of collective bargaining with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment.' Shortly thereafter the Union and
the Respondent entered into negotiations for a contract, and as a result a written
agreement for 1 year was signed August 28, 1947. In accordance with terms
of the agreement, the Union notified the Respondent within sixty (60) days
prior to the date of its termination that it desired to modify certain clauses
therein. On August 13, 1948, and on various dates thereafter the parties met in
bargaining conferences in an effort to reach an agreement on the terms of a
new contract for the 1948-49 year. On September 29, the parties reached an
1 Case No. 9-R-2619.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impasse and the Union struck the plant on that date. The strike was abandoned
December 6, 1948. Following the strike, parties met in bargaining conferences
on November 24 and December 23, 1948, and Januaiy"21, 1949. No conferences
have been held since the latter date.
The Respondent's answer denies that the Union has been and. still is the
exclusive bargaining representative of its employees for the purposes of col-
lective bargaining since May 7, 1947.
'. Under the terms of the 1947-48 agreement the Respondent checked off union
dues. On September 29, 1948, the date the strike commenced the Respondent had
98 employees in the appropriate unit. Of these the Respondent checked off the
dues from 55 employees. .
At no time from August 13, 1948, to January 21, 1949, at the various bargaining
conferences between the parties did the Respondent question the .Union's ma-
jority status. Moreover the Respondent during this same period continued to
meet and negotiate with the. Union's duly designated bargaining committee.
Again there is no evidence in the record that a petition for Certification or
Decertification had been filed with the Board by either a rival labor organization
or by individual employees. Nor is there any evidence in the record that a rival
claim of representation had been made to the Respondent by either a rival
labor organization or individual employees.
Conclusion
As indicated above at the time the strike began on September 29, 1948, the
Union had 55 dues paying members. There were 98 employees in the appropriate
unit. In the considered opinion of the undersigned this is conclusive evidence
of the Union's majority status. The Board in a recent case held that a majority
showing by dues paying members is sufficient to establish its majority status.'
Again there is a presumption that majority status of the Union continues fol-
lowing certification by the Board, until a rival claim is made, or a showing of
some new or changed condition that is sufficient to rebut the presumption.'
In view of the foregoing and the record as a whole the undersigned is convinced
and finds that at all times material herein the Union was and still is the certified
exclusive representative of the Respondent's employees for the purposes of col-
lective bargaining as regards wages, hours of employment, and other conditions
of employment.
3. Sequence of events before the strike'
As found above the Union was certified by the Board on May 7, 1947, as the
exclusive representative of the employees in the above found appropriate unit.
On August 28, 1947, the parties entered into a written agreement for 1 year.
Under the terms of the agreement either party could terminate the agreement
by giving written notice to the other prior to the termination date. On July 27,
1947, the Union wrote the Respondent that it desired to open negotiations to
amend the 1947-48 agreement before its expiration date, August 28, 1948. In
the letter the Union advised the Respondent that it desired to open negotiations
2 See Matter of Harris-Woodson Co. Inc., 77 N. L. R. B. 819.
3 See In the Matter of Dorsey Trailers, Inc., 80 N. L. R. B. 89.
4 Except where such matters as conflicts in the evidence and credibility of witnesses are
discussed herein below, the findings in this division of the Intermediate Report are made
upon evidence which is either undisputed or which is at variance only as to immaterial
details, or are made upon the preponderance of the reliable, probative, and substantial
evidence in the record considered as a whole.
- THE CINCINNATI STEEL CASTINGS COMPANY 603
on the following issues: (1) union security and check-off; (2) improved in-
surance; (3) improved vacations; (4) wages; (5) elimination of inequities and
inequalities; (6) the establishment of top rates in each classification; and (7) es-
tablishment of automatic rate of progression.
It is clear from the evidence adduced at the hearing that the most important
issue involved was the elimination of inequities and inequalities and wages
based thereon: In fact this issue had been a controversial one ever since the
Union was certified, and had been discussed at great length prior to the signing
of the 1947-48 agreement. During the course of the negotiations for that agree-
ment the Respondent, who then, as well as at all times material herein, recog:
nized that inequities and inequalities as to hourly wage rates existed in its
plant. That is, employees doing like work, and with equal skill were being
paid at different hourly rates. During the negotiations for the 1947-48 con=
tract, the Respondent offered to adjust this situation, but the Union, apparently
for strategic purposes, decided to take an over-all increase of 12 cents per hour,
The parties however recognized that sooner or later this troublesome issue
would have to be disposed of. During the contract year the Union attempted
to secure increases for individual employees. who were the victims of this
situation, but were unable to do so due to the Respondent's adamant position
that the contract called for a flat over-all raise of 12 cents per hour and for
that reason it would not change any hourly rates during the life of the agreement.
It was in the light of this background that the negotiations for the 1948-49 agree-
ment were conducted.
As a result of the Union's letter of July 27, the patties met on August 13,
1948, in the office of James R. Clark, Esq., counsel for the Respondent.. Present
for the Union were the following, William J. Beckham, international represen-
tative, William McKinley Rails, chairman of the negotiating committee, James
Wynn, and Lorenzo Braddock. For the Respondent, James A. Clark, counsel,
Leonard Geiser, president, Howard Cross, secretary and treasurer, and Fred
Geiser, plant superintendent.
Beckham, as spokesman for the Union, informed the Respondent of the Union's
demands. They were as follows : (1) a 30 cents per hour wage increase across
,the board plus elimination of inequities and inequalities, establishment of maxi-
mum and minimum rates, and automatic rate of progression; (2) a union shop;
(3) increased insurance benefits; and (4) increased vacation benefits. The
demands of the Union were discussed at some length, particularly the union
shop. The Respondent rejected their demand in this regard, as well as main-
tenance of membership and in lieu thereof a provision in the proposed agree-
ment for an irrevocable check-off of union dues. The Respondent rejected all
forms of union security except a revocable check-off of union dues which was
provided for in the 1947-48 contract. As regards to the demand for increased
vacation benefits, the Union proposed that it be changed to provide for 3
.weeks for all employees with more than 5 years' service, instead of 2 weeks as
provided for in the 1947-48 contract. This demand was rejected by the Re-
spondent. Beckham in explaining the Union's demand for a 30 cents per hour
wage increase told the Respondent that it was predicated on the fact that no
inequities and inequalities had been eliminated during the 1947-48 contract year,
and that when this factor was taken into consideration plus the fact that the
Respondent refused to make any increases during that year; that the Union
was thus justified in making such a demand. The Union's demand for increased
insurance benefits was discussed, but no,concrete proposal was made at this
time. The meeting lasted about an hour, and was adjourned to.August 19, 1948.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the interim the Respondent was to consider the Union 's demands and offer
counterproposals at the next meeting.
The parties met as scheduled on August 19, 1948, at Clark's office. They were
represented by the same individuals that attended the meeting on August 13,
except that McLendon the Union 's business agent was also present. Beckham
asked the Respondent if it had any counterproposals to offer . Clark, as spokes-
man for the Respondent advised the Union that the union shop, and mainte-
nance of membership were unsatisfactory and that the Respondent rejected
the Union 's proposals in this regard . He also advised the Union that he did
not think that the Respondent would accept a provision for an irrevocable
check-off . As to wages , Clark advised that the Respondent had studied the
Union's demands in this regard , and that when the demand for the 30 cents
per hour increase was considered in the light of the demands for increased
insurance benefits, and the increased vacation benefits it added up to an
hourly increase across the board to approximately 56 cents per hour, and that
the Respondent considered the Union ' s demands as ridiculous , and absurd. As
regards the insurance plan, Clark advised that the plan then in effect was all
that the Respondent could offer . The plan then in effect was group life insur-
ance, the premiums being paid as follows , 60 percent by the Respondent and
40 percent by the employees, plus a group health and accident policy covering
the employees , the premiums of which were paid by the Respondent. Clark
also advised the union committee that the Respondent did not see how it
could Improve the vacation plan. There was considerable discussion as re-
gards the Union's wage proposal . Beckham again explained the Union's
demands. The gist of his testimony in this regard was that the inequities and
inequalities had to be eliminated ; that maximum and minimum rates would
have to be set; that provision would have to be made for an automatic rate
of progression ; and that in order to discuss these issues in an intelligent manner
the Respondent would of necessity have to furnish the Union. a list of its
employees , showing their job classifications and hourly rates. Beckham sug-
gested that in order to get a clear picture of the situation that a committee from
the Union meet with a committee selected by the Respondent at its plant
and discuss the various job classifications , hourly rates and the like . He also
requested that the Respondent have available at this meeting a list of all its
employees within the appropriate unit, together with their rates of pay and
job classifications. The Respondent agreed to this suggestion. At this same
meeting Clark presented five proposals for changes in the 1948-49 contract.
Among which were the following: (1) change in overtime rates; (2) seniority;
and (3 ) paid holidays. No definite decision was reached by the parties on any
of the proposals at this meeting. The parties did agree however to meet again
on August 23.
Between August 19 and August 23, a meeting as agreed upon on August 19
was held at the plant . Present for the Union were Ralls, Wynn, and Braddock ;
for the Respondent, Cross, and Fred Geiser. Cross asked the union com-
mittee to give . the Respondent some idea as to what they desired in the way
of increases for the employees to eliminate the inequities and inequalities. Rails
advised Cross that the union committee could not do this without a list of the
employees and their job classifications and rates of pay. Cross then told Rails
that the Respondent was. under the impression that the Union was to submit
a list of employees for discussion as to the proposed increases to eliminate
inequities and inequalities . There was much discussion back and forth con-
cerning the issue but nothing definite was arrived at . Suffice it to say however,
THE CINCINNATI STEEL CASTINGS COMPANY 605''
that the Respondent did not produce the information requested by the Union.
Hence for all practical purposes the meeting came to naught. Typical of the
Respondent's attitude during this, as well as at all of the first meetings between
the parties, was Geiser's suggestion that the Union submit a list of the union
members for whom it desired wage increases. Rails pointed out to Geiser that
the Union could not do this for the reason that it was the certified bargaining
representative for all the employees in the appropriate unit, and as such it was
its duty to represent all of them regardless of union affiliations. During the
course of this conversation Rails asked Cross who would take care of the non-
union employees if Geiser's suggestion was agreed to by the Union. To which
query Cross replied in substance that the Respondent would take care of them.
This suggestion was rejected by the union committee.
At the August 23 meeting the parties were represented by the same in-
dividuals who had been in attendance at the other meetings, except Lewis
Strickland, international representative appeared on behalf of the Union for
the first time. At this and subsequent meetings until September 29, Strick-
land acted as spokesman for the union committee. The parties again dis-
cussed the insurance and vacation plans, and Clark advised the union com-
mittee that the Respondent was of the opinion that the present plans were
adequate and could not accept the Union's proposed changes. As to the
Union's demand for a union shop, it likewise was unexceptable to the Re-
spondent, as well as their demand for either maintenance of membership or
irrevocable check-off as a substitute for a union shop. The only concession
the Respondent would agree to as far as union security was concerned was
to a revocable check-off which was then in effect under the terms of the
1947-48 agreement. The Union then brought up the question of wage in-
creases and the elimination of the inequities and inequalities. The latter
part of the meeting was devoted to these issues. During the course of the
meeting Beckham suggested that a r$erit raise system be devised as a means
of eliminating the inequities and inequalities. The Respondent's reaction to
this suggestion was in substance that such a system was satisfactory provided
that it have the final voice in the granting of such increases. This of course
was unsatisfactory to the Union and the Union did not pass the issue any
further. Beckham then asked for a list of employees, their hourly rates and
job classifications, so that the inequities and inequalities could be discussed
intelligently by the parties, President Geiser flatly refused his request in this
regard and told Ileckham, and the entire union committee that the Respondent
would never give the Union or anybody else that information except to a
representative of the United States Government or an auditor. The Respond-
ent also refused to accept the Union's proposal as regards automatic rate of
progression. Clark again informed the union committee that the Respondent
considered the Union's demand for a 30 cents hourly wage increase as ridic-
ulous and absurd. Beckham then pointed out to Clark that the Union was
of a contrary opinion especially so in view of the fact that the Respondent
had to date failed to make any counterproposal as regards wage rates.
Shortly after this colloquy President Geiser offered a 10 cent per hour in-
crease and advised the union committee that the Respondent had prepared a
list of approximately 50 employees that it desired to give individual increases
to over and above the 10 cent over-all raise, to correct admitted inequities and
inequalities. The Union asked to see the list but Geiser refused to submit it
to the committee for examination. In view of Geiser's position in this re-
gard the Union quite naturally rejected the Respondent's offer. Clark then
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told the union committee that he was familiar with the list referred to by
Geiser and that the proposed increases were for the most part for union mem-
bers. Beckham again pointed out to Clark that the Union was not interested.
as to whether they were for Union or nonunion employees, since the Union
was the exclusive representative of all the employees in the appropriate unit,
and its duty. was to all employees, regardless of their union affiliation. Since
the parties were getting nowhere in their negotiations, the union committee
suggested that a Conciliator from the United States Conciliation Service be
called in to assist the parties in their negotiations. Clark agreed to the sug-
gestion and called the Conciliation Service and arranged for the services of a
Conciliator. Following his action in this regard a meeting was arranged for
on or about August 25 to be held at the offices of the Conciliation Service in
the Federal Building, Cincinnati, Ohio.
On the night of August 25, the Union held a meeting and the negotiating
committee gave a report to the membership as to their progress in their efforts
to reach an agreement with the Respondent for the coming year. The member-
ship was advised of the difficulties the committee had encountered, especially
as to wages and the elimination of inequities and inequalities. The committee
also pointed out to the membership that their contract with the Respondent
expired on August 28, 1948, and the importance of immediate action on the part
of the Union to protect its rights. After discussing the situation, the member-
ship voted to strike the plant if their demands were not met by the Respondent.
The Respondent was not formally notified of the Union's action in this regard.
The next meeting was held on or about August 31, in the offices of the
Conciliation Service, Federal Building, Cincinnati, Ohio. Present for the Union
were the following: Strickland, Ralls, Wynn, Braddock, and McLendon; for the
Respondent, Clark, President Geiser, Fred Geiser, and Cross. James McNamara,
Federal Conciliator, presided at the meeting. McNamara, requested the parties
to state their position in order that he might determine the cause of the dispute.
Strickland as spokesman for the Union told McNamara that the Respondent had
refused to grant the Union: (1) a union shop, maintenance of membership, or
an irrevocale check-off; (2) refused the Union's request to improve the vacation
and insurance plans ; and (3) most important of all the Respondent had refused
to give the Union information as to the names of the employees, their job classi-
fications, and hourly rates, which, the Union considered absolutely essential in,
their effort to bargain with the Respondent in an intelligent manner on the
elimination of inequities and inequalities in the hourly rates paid to the em-
ployees in the appropriate unit. Clark,.verified Strickland's statement. Clark
then told McNamara that the Union's demand for an over-all increase of 30
cents per hour was ridiculous, and that this was the main cause of the dispute..
At this point Strickland told Clark that he had considered the Union's demand
for a 30 cents hourly increase and had discussed it with the union committee,
and that they were reducing their demand from 30 cents to 13 cents and the
elimination of inequities and inequalities. Strickland then stated that it would
be absolutely necessary for the Respondent to furnish the Union with a list
of all the employees in the appropriate unit, together with their rates of pay and
job classifications so that the parties could sit down and approach the problem
in an intelligent manner. McNamara then asked the Respondent if they would
furnish the requested list to the Union. President Geiser advised McNamara
that the Respondent would not furnish such a list, and again reiterated his
previous position that such a list would be furnished only to a representative
of the United States Government or to an auditor. Nothing of real importance
THE CINCINNATI STEEL CASTINGS COMPANY 607
was accomplished at this meeting, and it was adjourned to the next day,
September 1, 1948.
The parties met as scheduled on the morning of September 1, in McNamara's.
office. The same individuals represented their respective parties. This meet-
ing was in the main a repetition of the meeting on the previous day. The
principal issue discussed was still wages, and the elimination of inequities and
inequalities , with the Union on the one hand demanding a list of the employees
in the unit with their rates of pay and job classifications, and the Respondent
on the other hand resisting and refusing to furnish the list to the Union. Fred
Geiser again suggested that the Union furnish the Respondent a list of the
union members for whom it desired wage increases . The Union , as on previous
occasions when such a suggestion had been made, refused to comply with Geiser's
request on the legal ground that it was the certified bargaining representative
for all employees in the unit , regardless of union affiliation . Strickland sug-
gested to the Respondent that a committee from the Union be permitted to go
into the plant and interview each employee and by this means secure the desired
information , and thus be in a position to intelligently approach the issue of
inequities and inequalities . The Respondent refused the Union's request in
this regard. McNamara the Conciliator suggested that since the parties seemed
unable to get together on this issue that it might be beneficial to all to call in a
wage technician to assist them in arriving at a satisfactory settlement thereof.
Both the Union and the Respondent accepted McNamara's suggestion and he
made arrangements to have a Mr. Charles Tilton, a wage technician attached
to the Cleveland office of the Conciliation Service to come. to Cincinnati and
meet with the parties.
The next meeting of the parties was on the morning of September 7. It was
held in McNamara's office. The same individuals again represented their respec-
tive parties. Also present were McNamara and Tilton. McNamara introduced
Tilton to the parties, and explained to them Tilton's duties and gave them a
resume of his experience in drawing up wage structures and the like. He then
turned the meeting over to Tilton.
Tilton asked the Respondent for its wage structure, job classifications, and
wage scales. President Geiser told Tilton that the Respondent did not have a
wage structure. Strickland then stated to Tilton in substance that this partic-
ular issue was the source of the dispute in that the Respondent had consistently
refused to furnish the Union with a list of its employees, job classifications, and
wage rates; and that as a result of the Respondent's adamant position in this
regard it had been impossible to intelligently approach the problem of wages and
the elimination of inequities and inequalities. During the discussion with Tilton,
Cross stated that he had broken down the wage increases which the Respondent
was willing to offer to eliminate the inequities and inequalities, and that from a
percentage standpoint it was as follows : 50 percent of the employees were to
receive a 10 cent per hour increase, 32 percent 15 cents per hour, and 18 percent
127/., cents per hour. These figures were based upon the list which President
Geiser had with him at the meeting held on September 1, and which he had
refused to show to the union committee. Strickland again asked Geiser to let
him see this list, but Geiser refused to do so. He did however agree to read off
the names, but did so in such a manner that it was impossible for the union
committee to gain any information from the list. McNamara then Caine into
the meeting and after some discussion concerning the dispute the parties were
separated. McNamara and Tilton then met with the Respondent's committee
for about an hour. Tilton then talked with the union committee and advised
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them that he had "summed" up the Respondent's proposed wage increases and
found that they amount to approximately .124 percent per hour. Strickland
advised Tilton in substance that this was unsatisfactory to the Union and did
not eliminate one of the major issues in the dispute, the elimination of inequities
and inequalities in the wage structure ; and that the only way that this could be
done was for the Respondent to furnish a list of its employees, then wage rates
and job classifications. Tilton then returned to the Respondent's committee and
advised them of the Union's reaction to their offer. Shortly thereafter he recon-
vened the meeting and stated to both parties that the Respondent had agreed to
furnish him a list of its employees, their wage rates, and job classifications, and
that the parties would meet again that afternoon with him and endeavor to work
out a satisfactory wage structure. He then addressed himself to President
Geiser and asked him to confirm his statement in this regard. Geiser did so.
The parties met as agreed with Tilton on the afternoon of September 7. Present
for the Union, were Strickland and Ralls ; for the Respondent Fred Geiser and
Cross. Tilton presided at the meeting. According to the testimony of Strickland,
Tilton asked Cross if he had brought with him the list of employees, their wage
rates, and job classifications that the Respondent had promised to furnish at the
morning session. Cross replied in the negative, and in explanation stated that
President Geiser had changed his mind, and would not permit him to bring the
requested and promised information to the meeting. Tilton then asked Cross
in substance if he had any information with him that the parties could work
with, and at least make an attempt to settle at least a part of the dispute.
Strickland on direct examination testified as follows in this regard:
A. So Mr. Tilton says-he says, "Now I still haven't the work. Do you
have anything on you? Can't we get together on something?" And so Mr.
Cross took a list of job classifications out of his brief that he had there and
he listed them as bench molding, floor molding, coremaking-down the line
like that ; the low rate that we are now paying on that particular job is so
and so, the high rate is so and so, and adding the extra increases that we now
offer, and so on. We got a kind of an idea of the wage scale of what the
Company was paying, that is, their low and their high, but we had no idea
who was receiving the low and high. I said, "Look, goddam it, we are not
going to get any where this way. We're just as far apart as we were before.
We have to know who is getting those wages in there. We know that you
have men in there that are more entitled to the higher rates than there are
some now geeting it. We know that to be a fact." I was questioned then on
my knowledge on how I knew it to be a fact. It broke the talk. It was
more of a quarrel in the meeting. And Mr. Tilton said-after about an hour
and a half that-he threw up his hands in disgust. He said, "Look ; I can't
do anything here. I've got an appointment in Detroit, and I'm taking off for
there." So the meeting broke up without anything accomplished.
On the other hand Cross and Geiser testified in substance that they (lid bring
a copy of the Respondent's time sheet with them and that Geiser placed it on
the desk ; that the parties were seated around,' that it contained the names of
the employees, their job classifications, and wage rates ; that the list lay on the
desk throughout the entire meeting which lasted from 2 to 6 p. m.; and that he
read from the list any information that the Union requested. Due to the ultimate
5 According to the undenied and uncontradicted testimony of Geiser, the desk referred
to was an ordinary office desk, approximately 3' x 5'.
THE CINCINNATI STEEL CASTINGS COMPANY. 609
importance that the undersigned attaches to this meeting he is convinced that
Geiser's testimony in this regard should be set forth in detail herein below :
Q. And did you read from it or not?
A. I read from the list.
Q. Now, just tell the Examiner just what you did , how you used that list
that day and what you said about it.
A. We got into j ob classifications . We listed job classifications . Mr. Cross
put 'em down, such as bench molders , floor molders , shop laborers, iron
pourers, stand grinders, swing grinders , chippers , cutters, shakeout-reclaim
sand operators and facing mill operator . There may have been one or two
more, but I recall those-welders was another one, I know.
Q. Go ahead, Bud.
A. They asked for a minimum and maximum rate in each department, and
I told 'em what the minimum and the maximum rate was in each department.
They would ask a name, say , "In what department is this man ?" I would tell
'em. If they would ask their rate, they would be given the information they
required.
That happened practically in every department in several instances. And
any information that they wanted I gladly gave'em.
I told 'em that was the idea of that meeting , that if they wanted to know
the rates of the men I would give any man they named, and if they named
them all I would give 'em all their rates and in what job classifications we
considered that man.
Q. Now, how many did they inquire of as to their rates , about how many
men?
A. I would say approximately 70 per cent because there was better than
half in each department.
Q. Now, (lid they quote to you the rates or ask you if the rates they had
in mind were correct in these-
A. (Interposing ) Some of them they quoted to me and if they were wrong-
and they were only wrong on one instance where a man says that he was
getting a dollar an hour and his rate was 991/2 cents. The rest were right.
Q. Every figure they gave you for correction they were right except one?
A. They were right except one.
Q. Now-
A. There's one more thing on that particular meeting [where we all thought
we finally came to a settlement ] 6 was Mr. Tilton positively made the state-
ment, "With such information that any contract could be negotiated."
[Brackets supplied.]
Strickland 's testimony on direct examination in regard to what transpired
at the meeting on the afternoon of September 7, has been set forth hereinabove.
On cross examination however he testified to the contrary and admitted that
the job classifications , and wage rates of individual employees were discussed at
this meeting and that the information requested by the union representatives
from Geiser and Cross , was read off to them from the list referred to above.
Strickland 's testimony on cross-examination in this regard is set forth herein
below :
9 That portion of the above quoted testimony in brackets was stricken from the record
by the undersigned.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. . . . Now, referring to the meeting with Tilton in the afternoon in the
Conciliation Office when you and Balls and Bud Geiser and Cross met with
Tilton, did you or did you not see in Bud Geiser's hands, and did he or did
he not read from a paper which he had in his hands? Did you or did you not
see a paper and did he or did he not read from a paper?
A. I said-I have already testified to that effect.
Q. That you did see that paper and that he read from it?
A. Yes. -
Q. Do you know what that paper was?
A. I beg your pardon. In my statement I said it was Mr. Cross. Now
you say Air. Geiser.
Q. All right. One or the other.
A. One or the other.
Q. Now, did they tell you what that paper was?
A. They told me they had job classifications there, the rates-that is, the
low rate and the top rate, and they read those and we copied them down.
Q. Now, isn't it a fact, Lew, that they told you that they had there. the list
of the employees and the rates of pay, and if there was anyone that you or
Ralls wanted to know about, they would be glad to give you the information
you requested? Isn't that a fact?
A. I don't recall that statement. However, we did ask about certain
individuals and, for instance, we had one carpenter there. We asked him
what is the rate of that carpenter. He told us the carpenter's rate, and he
also mentioned or it was discussed about the crane operators. They said the
name of the individual that was running this crane, or operating the crane
on days, and at night, and there was another individual that was working
as a relief man or a utility man, so to speak ; and he told us the difference
between the operator's pay and the utility man's pay. But only at our request
would he name individuals.
Now, we were in no position-I mean, at that time-we were in no-they
wouldn't give us anything. They were merely reading and, of course, we
don't know that was a fact or not. I mean, there was nothing given to us.
Q. Now, isn't it a fact, Lew, that you, regarding a number of employees,
asked if Mr. So and So's rate was so and so? And then you would give a
name and an amount, and Bud or Howard Cross-Bud Geiser or Howard
Cross would answer you?
A. As I stated, any name that would come to our mind, we would inquire
about that particular man.
Q. And, in practically all of the instances where you made inquiries, isn't
it a fact that they told you that your statement as to the rate you thought
the man was getting was correct ; isn't that a fact?
A. Did you say, in all instances?
Q. Almost all instances.
A. Well, I would say, in almost all. But I wouldn't say that in all
instances it did.
The record is clear that at this same meeting, Strickland and Ralls had with
them a list of all the Respondent's employees, and referred to this in their inter-
rogation of Cross and Geiser concerning the job classifications and wage rates of
individual employees. This list had been furnished the Union every 3 months
under the terms of the 1947-48 contract for the purpose of determining the
seniority rights of the employees in the unit.
THE CINCINNATI STEEL CASTINGS COMPANY 611
In view of the foregoing and the record as a whole, particularly in view of the
fact that Geiser's testimony as to what transpired at the meeting held on the
afternoon of September 7, is in the main corroborated by Strickland's admissions
on cross-examination, the undersigned is convinced and he so finds that the
Respondent did furnish the information requested by Conciliator- Tilton at the
meeting on the morning of September 7, 1948.
The next meeting of the parties was held on September 9, in the office of Con-
ciliator McNamara. During the course of the meeting Strickland again asked for
a copy of the Respondent's pay roll, and as in the prior meetings his request was
refused by President Geiser. His reason for refusing to furnish a copy of the
Respondent's pay roll was that he was afraid.that if he gave it to the Union it
would become public knowledge and be circulated throughout the Cincinnati
area. He did however offer to give the Union any information it desired about
the individual wage rates and job classifications of the Respondent's employees.
In the course of the discussion on wages President Geiser stated that the Re-
spondent had revised the list of employees to whom it desired to grant additional
increases to in order to eliminate the inequities and inequalities. Cross then
read the percentage breakdown of the new offer, which was as follows ; 45 percent
of the employees would receive an increase of 10 cents per hour ; 35 percent would
receive 15 cents per hour; 15 percent would receive 121/.> cents per hour; and 5
percent 20 cents per hour, Strickland informed the Respondent that the new offer
still did not meet the Union's demands, and again demanded a list of all the
employees, and their rates of pay and job classifications. His request was again
refused by President Geiser. Presumably for the reasons set forth above.
Other important matters discussed at this meeting were union security, and
paid holidays. Strickland informed the Respondent, that in 1948, two of the
paid holidays provided for in the 1947-48 contract fell on Saturday [Christmas
and New Years] and that the Union desired a provision in the 1948-49 contract
that obligated the Respondent to pay the employees for these holidays, even
though they did fall on a nonworking day. The Respondent resisted this propo-
sition, and contended that under the terms of the 1947-48 contract it was
required to pay only for those holidays that fell on or were celebrated on a
regular working day. After much bickering back and forth, the Respondent
offered to close the plant down at 3: 30 p. in. the day before Christmas and New
Years, and pay the employees for a full day. The Respondent's proposal in this
regard was not acceptable to the Union. At the close of the meeting the parties
arranged for Strickland and Geiser to meet alone the next day for the purpose
of discussing between themselves the major issues that were hindering a settle-
ment of the dispute, and thus delaying the signing of the 1948-49 contract.
Strickland and President Geiser met alone the next day, September 10, in Con-
ciliator McNamara's office. During the course of the meeting Geiser gave to
Strickland the revised list of employees whom the Respondent felt were entitled
to additional wage increases over and above its previous offer of 10 cents per
hour increase to each employee. At the time Geiser gave the list to Strickland
he requested him not to give it to the employees committee, but to keep it in his
possession. He explained to Strickland in substance that on another occasion
he had given Ralls certain information in confidence and that it had been relayed
to the employees in the plant and caused considerable confusion. Strickland
assured him that he would keep the list in his possession. Shortly thereafter
the meeting adjourned, and Strickland returned to his office where he met with
the union committee. The committee then took the list of employees that it
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had, the list given to Strickland by Geiser , and from the information it already
had, drafted a counterproposal and mailed two copies of it to Clark. The
Union 's proposal provided raises for 61 employees . Among the changes the
Union proposed was the lowering of the increases suggested by the Respondent
as to certain . employees , increasing others, and adding additional employees to
the list proposed by the Respondent . In all it suggested changes as to 29
employees . A few days later Strickland contacted Clark, and was advised by him
that he had received the Union 's proposal , and that he would consider it and
advise the Union of the Respondent 's reaction thereto . Shortly thereafter Con-
ciliator McNamara arranged a meeting for September 20.
At the meeting on September 20, the parties were represented by the same
individuals who had participated in the previous meetings , except that William
Kircher, international representative of the Union was also present in its behalf.
At the opening of the meeting Strickland asked Clark if the Respondent had
considered the Union 's proposal as to wage increases , Clark replied that the
Respondent had not had an opportunity to consider it, and that consequently
was in no position to discuss the matter at this meeting . Clark then advised the
Union that the Respondent desired a provision in the 1948-49 contract relative
to overtime on overtime so that it would protect the Respondent from harassing
law suits in view of the U. S. Supreme Court 's recent ruling on that issue. The
union committee agreed that a clause to that effect should be in the agreement.
Union security and paid holidays were also discussed . The Union again requested
some form of union security-either a union shop , maintenance of membership, or
an irrevocable check-off. The Respondent would not agree to any of these pro-
posals , but as in the prior meetings would only agree to a revocable check-off.
Paid holidays were also discussed , and the Respondent 's only concession in this
regard was the same as President Geiser had offered at the meeting on Septem-
ber 9. Increased insurance benefits were likewise discussed . The Respondenr
still insisted that the present plan was all they could afford , and would not agree
to additional benefits . President Geiser however did agree to check the policies
then in effect , and ascertain whether or not the Respondent received any divi
dends or rebates from the insurance companies , and if so the Respondent would
consider further discussion of this issue at a later date . The parties also dis-
cussed the Union's proposed change in the vacation plan. The Respondent again
advised the Union that it considered the plan then in effect as adequate and in
addition was all that they could afford at the time . After considerable discus-
sion the meeting was adjourned to a later date to be set by Conciliator McNamara.
Shortly thereafter McNamara advised the parties that the next meeting would
be held in his office on September 29.
At the opening of the meeting on September 29, Clark advised the union
committee that the Respondent had considered the Union 's proposed wage in-
creases, and had a counterproposal to offer. Clark then stated in substance
that the Respondent was of the opinion that the Union had unfairly lowered
the increases proposed by the Respondent as to some employees , and increased
others beyond the amounts that the Respondent considered equitable . For ex-
ample the Respondent had suggested an additional increase of 10 cents per
hour to Rails , that the Union had cut it to 5 cents and added 5 cents to another
employee; and that the Respondent in its counterproposal had increased its
proposed raise to Rails from 5 cents to 71/,. cents per hour. Clark also advised
the Union that of the 29 suggested changes made in their proposal to the Re-
spondent , that the Respondent was willing to accept 15. He also advised the
union committee that the Respondent in addition had added additional em-
THE CINCINNATI STEEL CASTINGS COMPANY' 613
ployees to its new counterproposal which provided for wage increases to 63
employees of the 98 in the unit, as compared to the Union's proposed increases
to 61 employees. The Respondent's counterproposal was not satisfactory to the
Union, and was rejected in its entirety. Strickland told President Geiser that
the Union considered its proposal fair, and that the Union objected to any changes
that the Respondent desired to make to the Union's counterproposal, and that
it was unsatisfactory and that the union could not accept it. Strickland again
raised the question of pay for holidays that fell on nonworking days, and again
President Geiser stated that the best he could do was to close the plant down
at 3: 30 p. m. on the day before Christmas and New Years, and pay the em-
ployees for the balance of the day. Strickland also went over the other issues
which were in dispute, such as union security, and improved vacation and in-
surance plans, and was advised by the Respondent that it could not accept the
Union's demands as regards these issues. After much heated discussion, par-
ticularly between Strickland and President Geiser, the meeting "blew up."
What actually happened is well described by Strickland in his testimony on di-
rect examination which was as follows :
A. . . . About that time Mr. Geiser again "blew his stack" and he said,
"Lew, we're just wasting time. I've wasted too much time in these meet-
ings. I don't care to attend any other meetings. I have other business that
is a great deal more important than this." And I said, "Look, I'd like to
discuss this further." He said, "You've got every damn thing you're going
to get."
Then I listed the names right down the-the other issues down the line,
and I said, "Are there any changes here?" "No." "Are there any changes?"
"No." "Are there any changes?"; "no," "no." That's all we received at
that meeting. I said, "Is that your final offer?" "Yes, that's our final
offer." I said, "Well, then, we can not accept that as your final offer. So,
therefore, we can do something else with it." I turned to the chairman of
the committee, McKinley Rails, and I said, "Go down to the men and call
those men out." And Mr. Geiser said, "What did he say? What did he
say?" Mr. Clark says, "The strike is on. He told him to call them out."
That broke up that meeting. I don't recall anything else said at the
meeting.
Acting on Strickland's instructions Rails, and other members of the local's
negotiating committee went to the plant and ordered the men out on strike.
They went out at around 1 p. m., September 29, and the strike continued until
December 6, 1948.
A few days after the strike started the employees were paid the wages due
them at the time the strike began. Enclosed in each pay envelope was the
following letter from the Respondent :
THE CINCINNATI STEEL CASTINGS CO.
ELECTRIC PROCESS
Office and Works, Spring Grove, Alabama and Bates Avenues
CINCINNATI 25, OHIO
SEPTEMBER 29, 1948.
From August 13th until today we have met with the committee and officers
of the Union in an honest endeavor to enter into a fair contract for the year
beginning August 30, 1948.
867351-50-vol. 86-40
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We offered wage increases of from 10 to 20¢ per hour , but without our last
suggestion even being put to a vote, or the members advised of it, we were
told a strike would be called immediately.
We were sorry that you folks who are most vitally concerned did not have
more to say in these negotiations because we felt that there would have been
an agreement between you and us.
We want you to know everything that took place and if you will ask any
of us officers , we will be glad to give you the facts and the truth.
TILE CINCINNATI STEEL CASTINGS COMPAN1,
( S) LEONARD GEISER, President.
Also in each envelope was a statement from the Respondent as to what each
striking employee 's hourly rate would have been had the Union accepted the
Respondent ' s final offer.
Shortly after the strike started a picket line was thrown around the Respond-
ent's plant. It continued to function up until December 5, 1948.
Sometime in the latter part of October 1943, International Representative Wil-
liam T. Kircher replaced Strickland as the Union ' s representative in the Cincin-
nati area , and in his official capacity had jurisdiction over the affairs of the Local
and the striking employees . In his official capacity he contacted Conciliator Mc-
Namara and requested that he arrange a meeting between he and Clark. Mc-
Namara did so, and a meeting was arranged for November 10, 1948. Present at
this meeting were McNamara , Clark, and Kircher. Kircher stated to Clark that
the purpose of his request for a meeting was to discuss with Clark , as counsel
for the Respondent , the possibility of future meetings between the parties, so that
they could meet on "common ground" and endeavor to clear up the strike situation,
which was of primary importance to the Union . Clark agreed with him and
stated that he would get in touch with the Respondent and endeavor to arrange
such a meeting . Clark advised Kircher that the big "stumbling block" would be
getting the striking employees back to work , in view of the fact that the Respond-
ent had hired new employees to keep its plant in operation and in addition had
reduced its working force to approximately 75 from the 98 who were employed at
the time the strike was called.
As a result of the meeting between Clark and Kircher on November 1.0,
McNamara arranged a meeting between the parties to be held in his offices in
the Federal Building at 1.0 a . in., November 24, 1948.
The meeting was held as scheduled on November 24. Present on behalf of
the Union were the same individuals who had appeared at the meetings before
the strike , except Kircher appeared instead of Strickland ; for the Respondent,
Attorney Burton E. Robinson , counsel in the absence of Clark, who was ill at
the time, the two Geisers , and Cross . Robinson as spokesman for the Respondent
at the outset of the meeting stated that he was appearing in the absence of Mr.
Clark; that for this reason that nothing definite could be accomplished at the
meeting; and that the Respondent was there to hear what proposition the Union
had to offer to clear up the situation . Kircher on behalf of the Union stated
that it was the Union 's desire to arrive at some basis for getting the striking
employees back to work and to resume negotiations for an agreement . Robinson
pointed out that there were unfair labor practices charges filed by the Union
against the Respondent and that in addition to that the main problem was to
get the striking employees back to work in view of the fact that the Respondent
had replaced several of the striking employees . McNamara intervened and
suggested that a settlement be based on : ( 1) the Union call off the strike; (2)
THE CINCINNATI STEEL CASTINGS COMPANY 615
the Union drop the charges against the Respondent; and (3) the parties sit
down within 30 days and negotiate a new contract. At this point Kircher
asked for a recess to discuss alone with McNamara a proposal for settlement.
The union committee then discussed the situation with McNamara and the
following proposal to the Respondent was worked out: (1) the strike was to
be terminated and the striking employees returned to their jobs by November 29;
(2) that the parties sit down and sign an agreement on the basis of the
Respondent's last offer at the meeting on September 29; and (3) that in the
interim the Union withdraw its unfair labor practice charges against the
Respondent. McNamara submitted this proposal to the Respondent. Robinson
advised the union committee that he would take their proposal to Clark, and
that the Union would be advised later as to the Respondent's reaction thereto.
The meeting was then adjourned.
4. The abandonment of the strike and events thereafter
Following the meeting on November 24, the Union after due consideration de-
cided to abandon the strike, which it did at midnight December 5, 1948. At
the time the Union informed the Respondent of its decision to end the strike,
all of the striking employees who had not yet returned to work, went to the
Respondent's office and made a continuing and unconditional offer to return
to their former jobs. On the next day December 6, 1948, the Respondent mailed
to each of the striking employees whom it had not yet rehired a "Separation
Report For Total Unemployment" as required by the "Ohio Bureau of Unemploy-
ment Compensation," which gave as the reason thereon for the separation the
following; "Strike started September 29, 1948, and terminated December 5,
1948, midnight. No work for this man at this time."
Following the receipt of the above separation reports, and the Respondent's
refusal to rehire its striking employees, and its refusal to replace the new
employees hired since the commencement of the strike on September 29, the
Union filed the amended charge upon which the amended complaint herein is
predicated.
Of the 98 employees in the appropriate unit at the time the strike started on
September 29, all but 35 went out on strike. From September 29 to December
6, 1948, the Respondent hired 28 new employees. During this same period
approximately 9 of the striking employees returned to work. Since December
6, 1948, 7 of the striking employees have been.reemployed by the Respondent.
No new employees have been hired by the Respondent since December 6, 1948.
Moreover, according to President Geiser the only persons that will be hired by
the Respondent in the future will be its former employees who participated in the
strike whenever jobs are available for them.
The parties met again on December 23, 1948. They were represented by the
same individuals who participated in the meeting of November 24, except that
Clark was present as counsel for the Respondent. Kircher as spokesman for the
Union stated to the Respondent's representatives that he did not expect to reach
a final agreement at this.meeting, but that the Union did expect to reach an
agreement as to what the Respondent's position was as to issues that were in
dispute, to wit: (1) union security; (2) improved vacation and insurance plans;
(3) paid holidays, and wages, including the elimination of inequities and in-
equalities. The parties then discussed each issue, and the Respondent stated
its position thereon, which was the same as stated by President Geiser at the
final meeting before the Union called the employees out on strike September 29,
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1948. Kircher then asked the Respondent in substance if that was still its po-
sition, and he was advised that it was. He then asked the Respondent if it
would sign at once a contract which embodied the position and proposals of the
Respondent at the meeting on September 29. Clark then discussed the Union's
proposal with President Geiser, and then stated to Kircher that the Respondent
desired to discuss the proposal before giving the Union its final answer. This
was satisfactory to the Union and arrangements were made to hold another
meeting in the near future.
Following the meeting on December 23, 1948, Clark and Kircher kept in touch
with each other and a meeting between the parties was arranged for January
21, 1949.
The meeting was held on January 21, as scheduled. Representing the Union
were Kircher and Braddock. Clark represented the Respondent. Clark ad-
vised the Union's representatives that the Respondent had considered the Union's
proposal of December 23, 1948, and was willing to sign a new contract on that
basis, providing there was inserted into the contract a provision for the preferen-
tial hiring of the employees who had participated in the strike and had not yet
been rehired by the Respondent. Kircher advised Clark that he could not ac-
cept the Respondent's offer without referring it to the membership of the Local.
He stated that the Union expected the Respondent to take back all of the strik-
ing employees at once upon the signing of the contract. This the Respondent
refused to do. Kircher then stated that in any event the issue would be re-
.solved at the hearing in the instant case which was scheduled to start on Thurs-
day January 27, 1949. This was the last meeting between the parties prior to
the hearing herein.
5. Conclusion as to the alleged refusal to bargain with the Union in good faith.
Contention of the parties
The General Counsel contends in the main that the Respondent by: (1) re-
fusing to furnish to the Union a list of its employees, then hourly rates, and job
classifications, so that the parties could sit down intelligently and bargain col:
lectively on wage increases and in particular as regards the elimination of certain
inequities and inequalities in the wage rates; (2) refusing to bargain in good
faith on the subject of union security; (3) refusing to bargain in good faith on
increased insurance benefits and an improved vacation plan; and (4) by re-
fusing to bargain in good faith on the subject of paid holidays.
The General Counsel further contends that as a result of the above described
conduct, the employees went out on strike in protest thereof on September 29,
1948, on December 5, 1948, abandoned said strike, and on December 6, 1948,
advised the Respondent of their action in this regard, and made an uncondi-
tional offer to return to their former jobs; that the Respondent failed and
refused to reinstate said striking employees, and discharged them as of De-
cember 6, 1948; that said strike was caused by the Respondent's unfair labor
practices ; and that the 52 striking employees who were refused reinstatement
to their former jobs by the Respondent upon their unconditional offer to return
to work, were thus discriminatorily discharged because of their concerted activi-
ties in violation of Section 7 of the Act, and violative of Section 8 (a) (3) and
8 (a) (1) of the Act.
The Respondent contends that it never refused to bargain in good faith with
the Union, but that on the contrary it met with the Union time and again, and
discussed with the Union's negotiating committee any and all issues that were in
THE CINCINNATI STEEL CASTINGS COMPANY 617
dispute; that it did furnish the Union all the information it requested on the
subject of wages, and job classifications ; that it made proposals and counter-
proposals in the wage issue in an effort to eliminate the admitted inequities
and inequalities ; that it was not required under the law to furnish the Union
with a copy of its pay roll showing the names of its employees, their hourly
wage rates, and job classifications, but that it did make available to the Union
any and all information requested in this regard, which was all it was legally
required to do ; that it did not refuse to discuss and negotiate with the Union
on the issues of union security, increased insurance benefits, and improved
vacation plans, but on the contrary did discuss said issues when requested to
do so, and that having once stated its reasons for not acceding to the Union's
demands it was not required under the law to recede from its position and
acquiesce in the demands of the Union; that since it was not guilty of the com-
mission of any unfair labor practices in its negotiations with the Union, the
strike which started September 29, and was abandoned on December 5, 1948, was
an economic strike ; and that under such circumstances the Respondent was not
required to discharge the employees permanently hired by it during the strike
to keep its plant in operation and replace them with its striking employees, and
hence the Respondent did not violate Section 8 (a) (3) of the Act by such
conduct ; that all it was required to do under the law was to rehire the striking
employees without discrimination whenever jobs became available for them ;
and that it has scrupulously followed this course of conduct since the end of the
strike.
It is clear from the record, oral argument of counsel, and the briefs filed
by the parties that the primary issue herein, is, did the Respondent make avail-
able to the Union legally sufficient information so that the parties could sit
down and bargain intelligently on the question of wage increases, and the
elimination of inequities and inequalities in the Respondent's wage structure?
In the considered opinion of the undersigned the General Counsel's case must
stand or fall on this issue.
As indicated above there is little dispute as to the facts herein. The Union
requested the Respondent to furnish it with a list of the employees in the appro-
priate unit, their wage rates, and job classifications, with the maximum and
minimum rates for each classification. The Respondent's president refused to
furnish such a list to the Union, though requested to do so by the Union's ne-
gotiating committee on numerous occasions between August 13 and September 7,
1948. By the Respondent's refusal to furnish the requested list, wage discussions
between the parties were rendered futile. Finally, however, the Respondent
receded from its position in this regard on the afternoon of September 7, and
did sit down across the table with the representatives of the Union with a current
pay roll, and at that time advised the Union's representatives that the Respondent
was ready to furnish the Union with any information it desired regarding any
employee in the appropriate unit, regarding his hourly rate, job classification, and
the maximum and minimum wage paid in each classification. The Union from
its list of employees, previously furnished it under the terms of the 1947-48
contract, requested and received the desired information concerning any em-
ployee it desired to inquire about. This meeting lasted 4 hours, and during the
course thereof the Union requested information concerning approximately 70
percent of the 98 employees in the unit. With this information plus the proposed
wage increases of certain employees submitted by the Respondent to the Union
on September 9, the Union was able to submit proposed wage increases to eliminate
inequities and inequalities for 61 employees. From this proposal of the Union
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent was enabled to offer a counterproposal involving 63 employees
on September 29, 1948. At the meeting on the latter date Strickland, interna-
tional representative for the Union, again demanded that the Respondent give
to the Union a list of its employees, their hourly wage rates and their job classi-
fications, and again the Respondent refused to do so, but did inform the Union
in substance that it would furnish the desired information concerning any em-
ployee in the unit to the Union, in the same manner that it did so at the meeting
between the parties on September 7, 1948. As indicated above it is the General
Counsel's contention that the Respondent's attitude in this regard was the
primary cause of the strike that began at 1 p. in. on September 29, 1948.
Thus the question at issue herein is posed : Is an employer required to
physically deliver to a labor organization upon demand a copy of its pay roll,
setting forth therein the names of its employees, their hourly wage rates, job
classifications, and at the same time furnish a list of its job classifications to-
gether with its maximum and minimum hourly rates for each classification?
Or on the other hand does he satisfy the requirements of the Act, by orally
furnishing the requested information?
The undersigned has been unable to find any case that is directly in point with
the issue we are confronted with herein. However there are two cases that
involve similar issues. The leading case in this regard is The Aluminum Ore
Company v. N. L. R. B., 131 F. (2d) 485 (C. A. 7) decided November 30, 1942; 39
N. L. R. B. 1286. In that case the employer insisted upon granting individual
.wage increases exparte without consultation with the exclusive bargaining rep-
resentative of its employees. In the course of the bargaining on this issue the
union requested the respondent to furnish it with information as to the basis
for the employer's action in granting individual increases, so that it could get
a picture of the employer's wage history of the various job classifications in
which the individual wage increases were granted. The employer refused to
give the union such information on the grounds that it was confidential. The
Seventh Circuit Court of Appeals speaking through, Findley, D. J., had the
following comment to make on the employer's position on this issue :
It appears further that when the union expressed' willingness to bargain
upon the basis suggested by petitioner, namely, that of related groups, and
when petitioner announced certain increases, the union requested that it be
supplied with the information contained in petitioner's records of employ-
ment, in order that it might have a complete picture of the wage history of
the various group-members to whom increases were granted. This, peti-
tioner said, was confidential.
Again we do not believe that it was the intent of Congress in this legisla-
tion that, in the collective bargaining prescribed, the union, as representative
of the employees, should be deprived of the pertinent facts constituting
the wage history of its members. We can conceive of no justification for a
claim that such information is confidential. Rather it seems to go to the
very root of the facts upon which the merits were to be resolved. In de-
termining what employees should receive increases and in 'chat amounts, it
could have been only helpful to have before the bargainers the wage history
of the various employees, including full information as to the work done
by the respective employees and as to their respective wages in the past, their
respective increases front time to time aid all other facts bearing upon what
constituted fair wages and fair increases. And if there be any reasonable
basis for the contention that this may have been confidential data of the
employer before the passage of the Act, it seems to us it cannot be so held
THE CINCINNATI STEEL CASTINGS COMPANY 619
in the face of the expressed social and economic purposes of the statute.
Petitioner announced the increases it would be willing to make but it refused
to supply the wage history. From this refusal, we think the Board was
justified in concluding that petitioner had failed to cooperate wholeheartedly
in collective bargaining. [Italics supplied.]
The doctrine laid down in the Aluminum Ore case was followed by the Board
in the Matter of J. H. Allison & Company, 70 N. L. R. B. 377. In that case a
similar issue was involved. There the respondent insisted on making merit
increases without consultation with the union on the theory that such increases
were a prerogative of management and hence not a bargainable issue. In the
course of the discussion between the union and the employer in the Allison case
the union requested the employer to furnish it with information as to the names
of the individuals granted merit increases, their job classifications, and maxi-
mum and minimum rates of pay therein, so that it might have such information
as a basis for further collective bargaining negotiations on wage rates. The
employer refused to furnish the union any information in this regard. More-
over, in that case as well as in the instant case ° the employer suggested that the
union secure the desired information from its own members. The Board in the
Allison case have the following comment to make in regard to the issues discussed
above:
. . . We base our finding of a refusal to bargain upon the respondent's
failure during the formulation of the 1946 contract to negotiate concern-
ing merit increases, a proper subject of collective bargaining, and upon the
respondent's continuing refusal to furnish to the union information con-
cerning merit wage increases which had been granted, information necessary
to the union in order for it adequately to represent the employees on the
subject of merit increases. [Italics supplied.]
The undersigned has found above that the Respondent herein refused to
furnish any information to the Union relative to the hourly rates and job
classifications of its employees from the date of the first meeting August 13,
though repeatedly requested to do so by the Union, until the meeting on September
7. The undersigned has also found that on the latter date the Respondent did
furnish to the Union orally any and all information it requested concerning the
hourly wage rate and job classification of any employee in the unit when re-
quested to do so. Moreover the undersigned has also found that the Respond-
ent was ready and willing to orally furnish such information on this issue upon
request by the Union, at the meetings that were held after September -7, up
to and including the date of the last meeting before the strike September 29,
1948.
Hence, as indicated above the question at issue is did the method adopted
by the Respondent for the dissemination of the information requested by the
Union, place its conduct in this regard outside the purview of the doctrine laid
down in the Aluminum Ore and Allison cases cited above?
In the considered opinion of the undersigned it did. Neither the Aluminium
Ore nor the Allison cases set forth any criterion as to how an employer must
make available such information to the exclusive representative of its employees.
As the undersigned understands the doctrine laid down in those cases it is to
the effect that an employer must furnish the information upon request to the
9 As will be shown hereinafter the Respondent in the instant case receded from its
original position in this regard.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive represenative of its employees. Information may be furnished in
many ways, orally, written, exhibition of the original documents, or perhaps
by permitting the exclusive representative of its employees to interview each
and every employee and by that method ascertain the desired information. The
Respondent herein chose to give the Union the requested information orally
by reading from a current pay roll the requested information in the method
and manner described above. In the considered opinion of the undersigned
this method was legally sufficient, and satisfied the requirements of the Act.
In view of the foregoing and upon the record as a whole the undersigned is
convinced and finds that the Respondent by receding from its position as ex-
pressed at the bargaining conferences between August 13 and September 7, 1948,
and thereafter giving to the Union the wage information it requested in the
manner described above, bargained in good faith with the Union in this regard.
Consequently the undersigned will recommend that the allegation in the amended
complaint that the Respondent failed and refused to furnish information to the
Union regarding its wage rates and job classifications, and that by such conduct
failed and refused to bargain in good faith with the-Union, in violation of Section
8 (a) (5) and 8 (a) (1) of the Act be dismissed in its entirety.
As indicated above the General Counsel also contends that the Respondent
failed and refused to bargain in good faith with the Union on the question
of union security, increased insurance benefits and improved vacation plan, and
paid holidays.
As regards the issue of union security. The record is clear that this issue
was discussed at practically every meeting. The Union at first requested a
union shop, then maintenance of membership and when the Respondent refused
to agree to either, requested an irrevocable check-off. This was likewise rejected
by the Respondent. The only concession the Respondent would make in this
regard was to agree to a revocable check-off. At no time did the Respondent
refuse to discuss the issue, but at each discussion in this regard it refused to
recede from its original position that the only kind of union security that it
would agree to was the revocable check-off.
The Respondent took a similar position as regards the Union's demands for
an improved vacation plan, and increased insurance benefits. The Respondent
did discuss these issues at each of the bargaining conferences but refused to accede
to the Union's demands thereon on the grounds that it considered the vacation
plan then in effect as adequate, and that it felt that it could not afford to increase
its insurance benefits. It is clear from the record that the Respondent and the
Union did discuss these issues, and it is likewise true that the Respondent refused
to recede from its original position in this regard as expressed at the first meet-
ings of the parties.
True, the Respondent did not accede to the Union's demands, nor did it recede
from its original position on these issues but it did discuss them. At no time
did the Respondent categorically refuse to even discuss these issues, it simply
stated its position, and refused to recede therefrom. As the undersigned inter-
prets Section 8 (d) of the Act, all that an employer or a labor organization
is required to do is to state its position in good faith, and to discuss the issues,
and give their reasons for refusing to accede to the others demands, and by the
same token discuss the issues and give their reasons for refusing to grant con-
cessions to the demands of the other. Moreover it is well settled that the
"Act does not compel agreements between employers and employees. It does not
compel any agreement whatever." 8 All that it requires is that the parties meet
8 See N. L. R. B . V. Jones d Laughlin, 301 U. S. 1, at page 45.
THE CINCINNATI STEEL CASTINGS COMPANY 621
and negotiate in good faith in an effort to work out an agreement . In the Express
Publishing Company Case B which in some respects is similar to the instant case,
especially as regards the issue of union security , the Fifth Circuit Court of
Appeals speaking through McCord , C. J., held, that :
The law requires good faith bargaining* with the purpose of reaching an
agreement . The obligation to bargain in good faith also rested upon the
guild as well as on the company . The proposed contract submitted by the
guild was in several respects unreasonable ; for example , the law did not
require the company to agree to a closed shop or to assist in the collection
of union dues . The company was not required by law to give two weeks'
notice before discharging an incompetent employee , nor was it required to
consult with the guild as to his replacement . The obligation resting upon
the company was not to discharge an employee for union activities or advo-
cacy of collective bargaining . The negotiations were broken off abruptly
by the guild , clearly with the intention of compelling the acceptance of
its proposed contract by coercion.
In view=of the foregoing and upon the record as a whole, the undersigned is
convinced and finds that the Respondent did not refuse to bargain in good faith
with the union , on the question of union security , improved vacation plans, or
increased insurance benefits.
As regards the issue of paid holidays . It is clear from the record that the
Respondent refused to accede to the Union 's demands to pay for holidays that
fell on nonworking days, such as Christmas 1948, and New Years 1949 , both of
which fell on Saturday . The Respondent did agree however to pay for holidays
which were celebrated on nonworking days, even though they fell on nonwork-
ing days, such as Sundays . Moreover , the Respondent did agree to close its plant
down at 3: 30 p. in. the day before Christmas and New Years and pay the em-
ployees for the balance of the day. Miserly as this proposal may have been to
the Union , nevertheless it was a concession by the Respondent , and at least a
counterproposal . Clearly there was no refusal to bargain on this issue , and the
undersigned so finds.
It is clear from the record that the atmosphere at many of the bargaining con-
ferences was charged with animosity , and that angry retorts flared back and
forth especially between Strickland and Leonard Geiser. While it is difficult to
carry on true collective bargaining in such an atmosphere nevertheless it does
occur and is to be expected. It is common knowledge that bargaining confer-
ences are ofttimes acrimonious , and what goes on around the bargaining table
should be carefully sifted before an accusation of an "unfair labor practice" is
filed either against an employer or a labor organization.
It was in such an atmosphere that President Geiser "blew his stack ," as de-
scribed by Strickland in his testimony . One must however consider the remarks
of Strickland to Geiser before the "blow up. " Ordinarily the undersigned would
disregard such behavior , but Where as herein, the General Counsel makes an
issue of it in his brief the undersigned is of the opinion that it merits at least
passing comment.
In view of the above findings of fact and conclusions of law predicated thereon,
the undersigned is convinced and finds that the strike which commenced on Sep-
tember 29, and was abandoned by the Union on December 5, 1948, was economic
in origin and was called by the Union in its demands as to wage increases, union
9 See N. L. R. B. V. Express Publishing Company, 128 F. (2d) 690 ( C. A. 5).
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security, and the other issues described above upon which the parties had reached
an impasse.
6. Events after the Union abandoned the strike
As indicated above representatives of the parties met on November 24, 1948,
and discussed ways and means of terminating the strike. The main issue that
confronted the parties was the reemployment of the striking employees who had
been replaced by the Respondent during the strike so that it might continue to
operate its plant. Thereafter the parties met on December 23, 1948, and Jan-
uary 21, 1949. What transpired at these meetings has been set forth above and
will not be reiterated in this section of the Intermediate Report. Suffice it to
say, however, that the undersigned in view of his above findings of fact and con-
clusions of law predicated thereon, finds no merit in the contention of the General
Counsel that the Respondent violated Section 8 (a) (5) and 8 (a) (1) of the
Act by : (1) insisting that the Union withdraw its charges against the Respondent
which were then pending before the Board; and (2) by refusing to sign a writ-
ten agreement based upon the Respondent's last offer as stated by representatives
of the Respondent at the meeting on September 29, 1948. As regards the alleged
proviso that the Union withdraw its charges, then pending before the Board,
as a condition precedent before the Respondent would sign an agreement with
the Union ; the reliable, probative, and substantial evidence adduced at the
hearing shows that this proposition was advanced first by,Conciliator McNamara,
and thereafter was adopted by Kirsher, the Union's international representative
as an inducement to the Respondent to acquiesce in its request that a contract
predicated on the position of the parties as of September 29, 1948, be signed by
the Respondent. As to the Respondent's refusal to sign such an agreement
when requested to do so by the Union, the undersigned finds that the General
Counsel's contention in this regard is likewise without merit. It must be re-
membered that the agreement that the Union requested the Respondent to sign,
was not the same as the Respondent's last offer made on September 29, 1948, but
included therein a proviso that the Respondent would discharge the employees
it had hired during the strike and replace them with those employees which
had participated in the strike. This the Respondent refused to do, but did pro-
pose that a clause be inserted into the agreement that would protect the re-
hiring of the striking employees as jobs became available. The Union refused
to accept the Respondent's proposal in this regard. In view of the above findings
of fact that the above described strike was economic in origin, and continued
as such until it was abandoned by the Union, the undersigned is convinced
and finds that under such circumstances the Respondent was under no legal
obligation to accede to the Union's request in this regard.
B. The alleged discrimination against the striking employees violative of Section
8 (a) (3) of the Act
As indicated above the General Counsel in his amended complaint alleges that
certain named strikers were discriminately refused employment by the Re-
spondent when they, after abandoning the strike on December 5, 1948, uncondi-
tionally offered to return to work to their former permanent jobs on December
6, 1948; and that by such conduct the Respondent violated Section 8 (a) (3)
and (a) (1) of the Act.
The General Counsel predicates his contention in this regard on the assump-
tion that the strike that began on September 29, 1948, and which was aban-
doned on December 5, 1948, was an unfair labor practice strike, and that under
THE CINCINNATI STEEL -CASTINGS COMPANY . 623
such circumstances the striking employees- were entitled to be reinstated to
their former permanent positions. This contention of the General Counsel
is a.correct statement of the law, wherein a strike is caused by an employer's
unfair labor practice but, where as herein the strike was economic in its origin
and continued thereafter as such, as the undersigned has so found above; then
the jaw is to the contrary. . Economic strikers are entitled to their former jobs
after an economic strike is abandoned and they have unconditionally offered
to return to their former permanent jobs, providing they have not been-per-
manently replaced, or there has been no reduction in force in the interim. In
the instant case however the strikers-were not only permanently replaced, but
there was also a reduction in force during the strike. Under such circumstances
the Respondent herein was not legally required to restore the striking employees
to their former jobs. . All .that the Respondent herein is legally required to do
is rehire the striking employees as jobs become available without discrimina-
tion, The record clearly shows that the Respondent herein has scrupulously
followed this policy since the abandonment of the strike on December 5, 1948.
Since the General Counsel's allegation in this regard is dependent upon a
finding that the strike was the result of the Respondent's unfair labor prac-
tices, it follows that a finding to the contrary-by the undersigned, of necessity
requires a finding that under the circumstances described above the Respond-
ent's refusal to rehire its striking employees was not violative of Section 8 (a) -
(3) of Act. In view of the foregoing and upon the record as a whole the under-
signed is convinced that this allegation in the complaint should likewise be
dismissed, and he so recommends.
C. Alleged acts of interference, restraint , and coercion
The amended complaint alleges and the answer denies that the Respondent
by certain supervisory employees made statements to several of the striking em-
ployees during the course of the strike that were violative of Section 8 (a) (1) of
the Act. An examination of the testimony adduced at the hearing in support of
the General Counsel's allegation in his amended complaint in this regard shows
that the remarks referred to therein were in substance to the effect that the
striking employees should abandon the strike and return to work, and that in
any event the strikers would accomplish nothing by the strike , because the
Respondent did not intend to meet with the Union while the strike was in
progress.
An examination of the testimony adduced at the hearing in support of the
above described allegation , reveals that the remarks referred to carried with
them no threat of reprisal or promise of benefit . They were for the most part
said by certain supervisory employees to strikers during the course of isolated
conversations which in most instances were initiated by the strikers them-
selves. Moreover the record contains no evidence of antiunion animosity on
the part of the Respondent prior to the strike. Again some of the remarks were
made in a jocular vein and certainly by no stretch of the imagination could they
be construed as violative of Section 8 (a) (1) of the Act, in view of the plain
language of Section 8 (c) of the Act.
In view of the foregoing and the record as a whole , the undersigned is con-
vinced and finds that this allegation in the complaint should likewise be dis-
missed and he so recommends.
Having found as above the undersigned recommends the dismissal of the
amended complaint herein in its entirety , insofar as it alleges that the Respondent
herein commAted certain unfair labor practices.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
(1) The operations of the Respondent , The Cincinnati Steel Castings Company,
Cincinnati , Ohio, constitute and affect trade, traffic , and commerce among the
several States ,-within the meaning of Section 2 (6) and ( 7) of the Act.
(2) International Union, United Automobile , Aircraft and Agricultural Im-
plement Workers of America, CIO , and its Local Union No. 647 , is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
(3) All production and maintenance employees of the Company excluding
superintendents , foremen, assistant foremen, office and clerical employees,
guards, professional employees as defined in Section 2, subsection ( 11) of the
Act constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
(4) The Respondent has not engaged in unfair labor practices within the
meaning of Section 8 ( a) (1), (a) (3 ), and (a ) ( 5) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the amended complaint against The Cincinnati Steel Castings
Company, Cincinnati , Ohio, be dismissed in its entirety , insofar as it alleges
the Respondent engaged in unfair labor practices within the meaning of Sec-
tion 8 ( a) (1), (a) (3 ), and (a ) ( 5) of the Act.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18 , 1948, any party may,
within twenty ( 20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, filed
with the Board , Washington 25, D. C., an original and six copies of a statement
in writing setting forth such exceptions to the Intermediate Report and Recom-
mended Order 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 six copies of a brief in support thereof ; and any party may, within the
same period , file an original and six copies of a brief in support of the Inter-
mediate Report and Recommended Order. Immediately upon the filing of such
statement of exceptions and/or briefs, the party filing the same shall serve a
copy thereof upon each of the other parties. Statements of exceptions and
briefs shall designate by precise citation the portions of the record relied upon
and shall be legibly printed or . mimeographed , and if mimeographed shall be
double spaced . Proof of service on the other parties of all papers filed with the
Board shall be promptly made as required by Section 203.85. As further pro-
vided in said Section 203 .46 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.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings , conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington , D. C., this 13th day of June 1949.
JAMES A. SHAW,
Trial Examiner.