The France Foundry and Machine Co.

National Labor Relations Board - Board Decisions

Apr 26, 1943

49 N.L.R.B. 122 (N.L.R.B. 1943)

In the Matter of THE FRANCE, FOUNDRY AND MACHINE COMPANY and
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICUL-
TURAL IMPLEMENT WORKERS OF AMERICA, LOCAL #12 (CIO) and
INTERNATIONAL UNION OF OPERATING ENGINEERS (AFL), PARTY TO
THE CONTRACT
Case No. C-2454.-Decided April 26, 1949
Mr. Edward J. Creswell, for the Board.
Mr. R. H. Rogers and Mr. Brandon G. Schnorf, of Toledo, Ohio,
for the respondent.
41r. Lowell Goerlich, of Toledo, Ohio, for the Union.
Mr. W. H. Thomas and Mr. Arnold M. Edelnia1, of Cleveland, Ohio,
for the Engineers.
Mr. Herman J. DeKKoven, of counsel to the Board.
DECISION
AND
ORDER
Upon a complaint issued pursuant to charges filed by International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, Local #12 (CIO), herein called the Union,
against The France Foundry and Machine Company, Toledo, Ohio,
herein called the respondent, a hearing was held before a Trial Exam-
iner in Toledo, Ohio, from October 26 to 30, 1942, in which the Board,
the respondent, the Union, and International Union of Operating
Engineers (AFL), herein called the Engineers, participated by their
representatives. The Board has reviewed the Trial Examiner's rul-
ings on motions and on objections to the admission of evidence and
finds that no prejudicial error *as committed. The rulings are hereby
affirmed.
On December 14, 1942, the Trial Examiner issued his Intermediate
Report, attached hereto, in which he found that the respondent had
engaged in unfair labor practices. , Thereafter, the respondent and
the Engineers filed exceptions to the Intermediate Report and briefs
in support of their exceptions, and the Engineers filed an application
to-reopen the record for the reception of further evidence. A letter
was also received from various employees of the respondent alleging
49 N. L. R. B., No. 18.
1,22
5
THE FRANCE FOUNDRY AND MACHINE COMPANY 123
a change of bli r'gaining representative and requesting a* dismissal of
the complaint.- Oral, argument was held before the Board at Wash;
ington, D. C., on April 15, 1943.
,The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, except insofar'
as they are inconsistent with our findings and order hereinafter set
forth.
1. We agree with the Trial Examiner's conclusion that Lee was dis-
charged because of his union membership -and activities. In addition,
to the evidence relied upon by the Trial Examiner; we note that shortly
prior to the discharge, Superintendent Rellinger exhorted Lee, as well
as the other members of the Union's shop committee, to abandon the
Union.
2. We do not concur in the Trial Examiner's conclusion that the
respondent engaged in unfair labor practices within the meaning of
Section 8 (5) of the Act. Upon the state of the record herein, we
are in doubt as to whether the Brass Foundry employees constitute an
appropriate unit? We are therefore unable to find that 'the Union
represented a majority in an appropriate unit on the date of the alleged
refusal to bargain. We shall accordingly dismiss the complaint inso-
far as it alleges the commission of such unfair labor practices.3
3. We agree with the Trial Examiner that the respondent rendered
assistance and support to the Engineers in violation of the Act.4 We
do not, however, agree with the Trial Examiner's conclusion that the
contracts of April 1 and June 30, 1942, entered into between the re-
spondent and the Engineers, which covered the Machine Shop 5' as
well as the Brass and Gray Iron foundries, were illegal only as they
applied to the foundries. As admitted by the respondent and the
Engineers, these,were single contracts covering the employees at the
foundries and Machine Shop as a single unit, and-we find such con-
The request for the dismissal of the complaint is hereby denied.
a Nothing herein is to be interpreted as precluding a finding that the Brass Foundry
employees constitute an appropriate unit in a proceeding for investigation and certification
of representatives pursuant to Section 9 (c) of the Act, if the evidence presented in such
proceeding were to warrant such a finding.
6 we accordingly find it unnecessary to pass upon the application of the Engineers to
reopen the record for the reception of evidence that since the hearing herein, a majority
of the Brass Foundry employees have redesignated the Engineers as their bargaining
agent i
4 Slee's remark that he would like the employees to join the Engineers was found by/
the Trial Examiner to have been made at the meeting of the Brass Foundry employees
held on December 22, 1941, but he makes no mention of the evidence concerning a similar
remark made by Slee at the meeting of the Iron Foundry employees held on, the same
day. While there is some conflict in the testimony, we-find, on the basis of the entire
record, that a similar remark was made by Slee at the Iron Foundry meeting.
6 It is clear that the April 1 contract covered the Machine Shop as well as the foundries.
While the June 30 contract on its face covered the "foundries" alone, there is evidence
that it was intended to implement the April contract and to apply to the Machine Shop
as well.
124 DECISIONS OF NATIONAL LABO'R' RE'LATIONS BOARD
tracts to be indivisible. Also, the record discloses that materials and
equipment are transmitted by truck to and' fro between the foundries
and the Machine Shop, and that some of the foundry employees live
in North Baltimore, Ohio, where the Machine Shop is located, and
associate with the machine-shop employees. Upon the basis of the
entire record, and in order 'to effectuate the policies of the Act, we
find that the contracts are-illegal as applied to all three plants, and
we shall order that they be abrogated in their entirety. Under the
-circumstances disclosed by the entire record, we likewise find it neces-
sary, in order to effectuate the policies of the Act, to order the respond-
ent to post notices at the Machine Shop, the Brass Foundry, and the
Gray Iron Foundry.
4. The Trial Examiner recommended that the respondent reimburse
the foundry employees for the amounts deducted from their wages for
initiation fees and dues on behalf of the Engineers. Under the cir-
cumstances presented herein, we are of the opinion that the policies
of the Act will be effectuated without ordering reimbursement.
ORDER
I
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, The France Foundry and
Machine Company, Toledo, Ohio, its officers, agents, successors, and
assigns shall : '
1. Cease and.desist from : -
(a) Recognizing or in any manner dealing with International Union
of Operating Engineers; affiliated with the American Federation of
Labor, as the representative of any of its employees at its Brass Foun-
dry or Gray Iron Foundry, for the purpase of dealing with the re-
spondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless and
until that organization shall -have been `certified as such representative
by the National Labor Relations Board.;
(b) Performing or giving effect to the contracts of April 1 and
June 30, 1942, with International Union of Operating Engineers, affili-
ated with the American Federation of Labor, or to any amendments,,
extensions, renewals, or supplements thereof;
(c)_ Performing or giving effect to any other existing contract,
agreement, or understanding entered into with International Union
of Operating Engineers, affiliated with. the American Federation of
Labor, relating to grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, covering employees
at its Brass Foundry or Gray Iron Foundry;
(d) Discouraging membership in International Union, United
THE .FRANCE FOUNDRY- -ANND MACIUtNTE COMPANY ' 125
Automobile, Aircraft & Agricultural Implement Workers of America,
Local #12, affiliated with the Congress of Industrial Organizations,
or any other labor organization of its employees, or encouraging mem-
bership in International Union of Operating Engineers, affiliated
with the American Federation of Labor, or any other labor organiza-
tion of its employees, by discharging any of its employees or in any
other manner discriminating in regard to their hire or tenure of
employment, or any term,or condition of their employment;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
'join, or assist labor organizations, to bargain collectively through
representatives of their on choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed-in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : -
(a) Withdraw and withhold all recognition from International
Union of Operating Engineers, affiliated with the American, Federa-
tion of Labor, as the representative of any of its employees at its Brass,
Foundry or Gray Iron Foundry, for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of pay,,
hours of employment, or other conditions of employment, unless and
until that organization shall have been certified as such representative
by the National Labor Relations Board; -
(b) Offer to Charles Lee immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority and other rights and privileges ;
(c) Make whole Charles Lee for any loss of pay he may have suf-
fered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he
normally would have earned as wages from the date of the' respondent's
discrimination against him to the date of the respondent's offer of
reinstatement, less his net earnings during such period;
(d) Post immediately in conspicuous places at its Brass Foundry
and Gray Iron Foundry, at Toledo, Ohio, and at its Machine Shop, at
North Baltimore, Ohio, and maintain for a period of not less than
sixty (60) consecutive days from the date of posting, notices to its
employees, stating: (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs 1
(a), (b), (c), (d), and (e) of this Order; (2) that the respondent will
take the affirmative action set forth in paragraphs 2 (a), (b), and (c)
of this Order; and (3) that the respondent's employees are free to
remain or become members of International Union, United Automo-
bile, Aircraft & Agricultural Implement Workers of America, Local
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$ 12, affiliated with the Congress of Industrial Organizations, or any
other labor organization of its employees, and that the respondent will
not discriminate against any employee because of membership or
activity, in that organization, or any other labor organization;
(e) Notify the Regional Director for the Eighth Region in writing
within ten '(10) days from-the date of this Order what steps the re-
spondent has taken to comply herewith.'
,IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges that the respondent has engaged
in unfair labor practices within the meaning of Section 8 (5) of they
Act.
INTERMEDIATE REPORT
Mr. Edward J. Creswell, for the Board
Mr. R. H. Rogers and Mr. Brandon G. Schnorf, of Toledo, Ohio, for the
respondent.
Mr. Lowell Goerlich, of Toledo, Ohio, for the Union.
Mr. W. H. Thomas and Mr. Arnold M. Edelman, of Cleveland, Ohio, for the
engineers.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on October 9, 1942, by International
Union, United Automobile, Aircraft R. Agricultural Implement Workers of
America; Local #12, affiliated with the Congress of Industrial Organizations,
herein called the Union, the National Labor Relations Board, herein called the
Board, by its Acting Regional Director for the Eighth Region (Cleveland, Ohio),
issued its complaint dated October 12, 1942, against The France Foundry & Ma-
chine Company, herein called the 'respondent,. alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section-8 (1), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat 449, herein called the Act. Copies of the
complaint, accompanied by notice of hearing, were duly served upon the respond-
ent, the Union, and International Union of Operating Engineers, affiliated with
the American Federation of Labor, herein called the Engineers.
With respect to the unfair labor practices, the complaint alleged in sub-
stance: (1) that the respondent from December 22, 1941, to the date of the is-4u-
ance of the complaint sought to induce its employees at its Brass Foundry and
Gray Iron Foundry to become affiliated with the Engineers, and assisted the
Engineers at its Brass Foundry and Gray Iron Foundry by certain enumerated
acts; (2) that the respondent on April 1, 1942, in furtherance of its plan of
assistance to the Engineers, entered into a contract with the Engineers covering
its Brass Foundry, Gray Iron Foundry, and North Baltimore, Ohio plant, which
required membership in the Engineers as a condition of employment; (3) that
the respondent discharged Charles E Lee on or about October 6, 1942, by reason
of his membership in and activities on behalf of the Union; and (4) that the
respondent on or about June,15, 1942, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive representative of its em
ployees in an appropriate unit consisting of the production and maintenance
employees at the respondent's Brass Foundry, exclusive of clerical and super-
visory employees.
THE FRANCE. FOUNDIRY AND MACHINE COMPANIY 127
On October 21, 1942, the Engineers filed an answer denying that the unit -
alleged , in the complaint was appropriate ,, and that the Engineers was in any
manner assisted by the respondent.
On October 23, 1942, the respondent filed its answer in which it denied that it
had committed any unfair labor practices.
Pursuant to notice , a hearing was held in Toledo, Ohio , from October 26
through October 30, 1942, before Peyton Ford, the undersigned Trial Examiner,
duly designated by the Acting Chief Trial Examiner . All parties were repre-
sented by counsel and participated in the hearing. 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 conclusion of the hearing , counsel for the Board moved to conform the
complaint to the evidence , in order to eliminate variances as to names , dates,
and places . This motion was granted . All parties were afforded an opportunity
to argue orally at the close of the hearing , and the Board , the respondent, and
the Engineers , through their respective counsel, participated in such argument.
The Engineers filed a brief with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT 1
The France Foundry & Machine Company is an Ohio corporation, having its
principal office at Toledo, Ohio.
It operates two foundries, one at Bancroft Street and one at Girard Street,
in Toledo, Ohio, known as the Brass Foundry and the Gray Iron Foundry, re-
spectively; and at North Baltimore, Ohio, it operates a plant known as the
Machine Shop. It is engaged in the manufacture of brass and aluminum cast-
ings at the Brass Foundry ; in the manufacture of iron castings, transmissions
and housings at the Gray Iron Foundry ; and in the milling of castings at the
Machine Shop.
In its various operations the respondent utilizes raw materials consisting
of pig iron, cast-iron, scrap, brass ingots, aluminum ingots, and steel, of the ap-
proximate annual value of $422,000. Of the raw materials so used by the re-
spondent, approximately 100 percent is received by it from points outside Ohio.
The respondent manufactures finished products in the approximate annual
value of $750,000, of which approximately 15 percent of finished iron castings,
approximately 10 percent of finished aluminum castings, and approximately 5
percent of finished brass castings are shipped by the respondent to points
outside Ohio.
The respondent employs approximately 50 employees at its Brass Foundry.
approximately 85 at its Gray Iron Foundry, and about 20 at its Machine Shop.
IT. THE ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, Local #12, affiliated with the Congress of Industrial Organi-
zations, and International Union of Operating Engineers, affiliated with the
American Federation of Labor, are each labor organizations admitting to mem-
bership employees of the respondent.
1 The findings in this section are based upon a stipulation entered into at the hearing
by all of the parties herein ; the respondent as part of the stipulation, conceded that it is
engaged in interstate commerce within the meqning of the Act.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Events prior to December 22, 1941
The respondent is a corporation forming part of an integrated system consisting
of 16 corporations located in Ohio, Pennsylvania, Indiana, Michigan and Illinois.`
hereinafter referred to as the Affiliated Companies. The principal business of
the Affiliated Companies is the quarrying and processing of rock and stone In
1(340 two representatives of the Engineers called upon G. D. Sloe, vice president
of the respondent and an officer of each of the Affiliated Companies, and informed
him, that the Engineers represented the majority of the employees of an Affiliated
Companies' plant known as the Ridgeville plant. Slee questioned this claim and
asked if the Engineers represented employees of other corporations connected
with the Affiliated Companies. He told them that he "wouldn't want to enter into
negotiations representing one plant, because as soon as anything was done with
that, it would spread to another." He further advised them that "the end of
our operating season was at hand and there wasn't any use to discuss labor con-
tracts at this time." The Engineers representatives replied, "We'll be back in
the Spring and we will represent all of these men then." -
In the spring of 1941 Frank P Converse, vice president of the Engineers,
entered into negotiations with the Affiliated Companies which resulted in the.
Signing of closed-shop contracts in about April 1941 by the Engineers .and various
affiliates of the Affiliated Companies, but excluding the respondent.
Following the execution of these contracts Converse learned that the re-
spondent's Machine Shop was performing repair and maintenance work for the
Affiliated Companies.' Soon after, Converse ascertained that the respondent's
Brass Foundry and Gray Iron Foundry were manufacturing certain parts of the
machinery used by the Affiliated Companies. Converse, in the period from Oc-
tober to December 1941, on several occasions communicated with Slee and
insisted that it would be necessary for the Engineers "to complete the entire
chain and have organization in the foundries.",
Converse testified, and the undersigned finds, that Slee opposed him "quite,
rigidly"; that finally he told•Slee that the Engineers would organize the re-
spondent's foundries "one way or the other" ; and that the Engineers would place
a "gang of pickets" about the foundries if it became necessary, to do so. Converse
offered Slee the alternative of giving him an opportunity to speak to the employees
on the respondent's premises. On about December 21, Converse informed Slee
that a definite answer was required on or before December 22. On December 22
2 The names of these corporations, exclusive of the respondent, are as follows • The
Fiance Stone Company, The France Company, The France Quarries Company, The Marion
Stone Company, Mid-West Rock. Products Corporation, The Erie Stone Company, The
Whitehouse Stone Company, Toledo Stone and Glass Sand Company, The France Slag
Company, The Ohio and Indiana Stone Corporation, The France Limestone Company,
France Lime Products, Inc., The Miami Stone Company, The East Liberty Stone Company,
and The Mount Vernon Sand and Gravel Co.
-The North Baltimore, Ohio, Machine Shop was the first of the respondent's operations
to be organized by the Engineers. The evidence is not clear as to when the Engineers'
first organizational activities were commenced There is no evidence concerning the
details of the organization of this plant by the Engineeis The record discloses that the
majority of employees at the respondent's Machine Shop became members of the Engineers
at about, the time the Engineers first started their organizing drive at the respondent's
Brass Foundry and Gray Iron Foundry.
1
THE FRANCE FOUNDIRY AND MACHH E 1COMPANY 129
Slee agreed to permit Converse to enter the Brass Foundry and the Gray Iron
Foundry for the purpose of organizational activity'
2. The December 22 meetings at the Gray-Iron Foundry and the Brass Foundry
The principal facts concerning the December 22 events are not seriously in
dispute. On December 22 Slee took Converse to the Gray Iron Foundry and
directed Superintendent Scott to assemble the men. After the men assembled
Slee introduced Converse as a representative of the Engineers, and informed
them that a closed-shop contract had been executed between the Engineers and
the "stone quarries," i. e. one of the Affiliated Companies.' Converse testified
concei nieg this meeting : -
I told the men the bearing that existed there, and the connection, rather,
that existed, and it might be necessary for us to shut down the foundry if
they was going to continue on to manufacture repair parts and new parts
that was used to keep this equipment in the quarries and on the construction
work in operation. . . . that we wanted a union condition established in
these plants so that it would be absolutely impossible for anybody to interfere
with our operations from the placing of the material and the delivering of it
and production of it.
The undersigned finds that Converse made these statements.
Converse then informed the employees of the amount of the Engineers' initiation
fees and dues. He went on to tell them that the respondent had agreed to an
increase in wages of 21/c cents an hour, retroactive to December 1, 1941, from-
which the employees could pay the initiation fees and 3 months dues. There is
some conflict in the testimony with respect to the men's understanding that the
respondent was to deduct initiation fees and dues from their earnings However,
Converse testified, and the undersigned finds, that the men were told at this meet-
ing that initiation fees and dues would be checked off by the respondent. -
Prior to their appearance at the Gray Iron Foundry, Converse and Slee had
reached an understanding concerning the 21/2 cents an hour wage increase. Slee
was present at all times during the course of this meeting, and he verbally con-
firmed Converse's statement respecting the wage increase.
At the conclusion of this meeting, Engineers' application cards were left in the
timekeeper's office for the men to sign. Thereafter, 73 of the approximately 85
employees of the Gray Iron Foundry signed cards. A substantial number of
employees signed cards on the premises of the Gray Iron Foundry. Sixty-one
cards were signed on or before January 6, 1942, and the balance were sigiied on
and after March 31, 1942. These cards consisted of three parts, and all employees
but three signed each part thereof; these three employees executed that part
which designated the Engineers as their bargaining agent.
Following the above-described meeting at the Gi ay Iron Foundry and at approx-
imately 3 p. ir.. of the same day, the employees of the Brass Foundry were there
assembled by Superintendent A. J. Rellinger.at Slee's direction. Converse and
Slee testified, and the undersigned finds , that the occurrences which took place at
the Brass Foundry were substantially the same as the events which had earlier
transpired at the Gray Iron Foundry.
Charles E Lee, who was employed at the Brass Foundry, testified that during
the course of the meeting at the Brass Foundry, Ed Frost, a fellow employee,
1 The findings in the above paragraph are based upon the uncontradicted testimony of
Converse.
The evidence is clear that prior to December 22 these was no organizational activity
by the Engineers in the respondent's foundries.
130 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
spoke up and asked : "How about, it, if we want to join the CIO?" and that Slee
replied, "I am looking after the interests of the Company." Lee's testimony was
corroborated by fellow employees George Weatherwax, Clay McElwaine, and
Noah Watson. Slee did not specifically deny having made this statement and the
undersigned accordingly finds that he did.
Bert Kovacs, a witness called on behalf of the Engineers, testified as follows
concerning Slee's remarks to the assembled men at the Brass Foundry : "Well, the
only thing is, Mr Slee came out there, and he made a speech that we will have to
get organized in order to sell our castings" George Kemm, an Engineers' witness,
testified that, among other remarks made by Slee at this time he "suggested he
would like to have his foundries in that union.". These remarks are in ac;Cord with
the pattern of events which occurred prior to the December 22 meetings. Although
Slee denied making such remarks the undersigned does not credit his denial and
credits the testimony of Kovacs and Kemm.
At the conclusion of the Brass Foundry meeting, Engineers' application cards
for the employees to sign were left in the timekeeper's office, and -many subse-
quently signed them on the Brass Foundry premises. Fifty-six employees of the
Brass Foundry, a clear majority, signed cards for membership in the Engineers
on about December 22 and thereafter. Forty-eight of these employees signed cards
on or before January 22, 1942, and all but two executed all three parts of the cards ;
these two signed the part designating the Engineers as their bargaining agent,
and at a later date in 1942, executed the remaining parts.
3 Events between December' 22, 1941, and April 16, 1942
Shortly before January 1, 1942„ Converse prevailed upon Slee to agree to a 5
percent wage increase for the respondent's employees, effective January 1, 1942.
Slee'also consented 'on this occasion to meet with the Engineers and "discuss a
contract." Some time between December 22, 1941 and April 16, 1942, Converse
showed Slee application cards signed by a majority of the employees at the
Machine Shop,' and at each of the respondent's foundries. In March 1942, a 5
cents an hour increase in wages, effective April 1, 1942, was granted by the
respondent at the request of the Engineers. On March 27, 1942, Engineers mem-
bership books were distributed by the timekeepers of the Brass Foundry and
the Gray Iron Foundry to the men who had previously signed application 'cards.
On this day letters signed by C. F. Martig, respondent's assistant treasurer, were
distributed by the respondent to its employees at the foundries These letters
explained that the respondent was checking off initiation fees and 3 months'
dues °
4 The April 16, 1942 meeting in the A. F. of L. Hall
Several days before April 16, 1942, notices announcing an Engineers meeting
on the evening of April 16, 1942, at the A. F. of L. Hall in Toledo, Ohio, appeared
on the respondent's bulletin boards in the Gray Iron Foundry and the Brass
Thirty-six employees engaged in work at the Machine Shop signed Engineers application
cards on or before December 23, 1941.
' Slee's uncontradicted testimony shows, and the undersigned finds, that this lump
sum check-off of initiation fees and dues was a "mistake," and that refunds were paid to
each of the men involved. Several witnesses who were employed by the respondent on
March 27, 1942, testified that after this date these initiation fees and dues were checked
off at the rate of $1 a week, and the undersigned so finds.
THE FRANCE FOUNDRY AND MACHINE COMPANY 131
Foundry a The meeting was held as announced , and a number of employees from
each foundry attended. Converse presided over the meeting and "hurriedly"
read to the assemblage the contract which the Engineers had signed with the
Affiliated Companies' "stone quarries." It was explained to the men that, if
acceptable, their contract would be identical, except that it would be altered
with respect to terminology so as to apply to foundries. Converse announced
that Slee was outside the hall and asked the men "if they would care to have
Mr. Slee to come in."' When Slee appeared, after the employees signified their
desire to admit him to the meeting, the "stone quarries" contract was read aloud
by Converse, paragraph by paragraph. The principal question raised was the
provision for a check-off. A vote was taken in which the check-off was "voted
down," and the contract in all other respects was approved.10 Thereafter, a short
recess was taken in order to allow the n*n to elect shop committees for each
foundry.' After a while the men told Converse that they wanted "to take this
up at" their respective foundries because there were an insufficient number of
men- present. Converse inquired of Slee if there would be any objection to the
election of shop committees during working hours at the foundries. Slee stated
that "there wouldn't be any objection to that."
5. The contract dated April 1, 1942
Following the April 16 meeting the approved contract was signed by the Engi-
nees and the respondent It covered "all plants and quarries of the employer
[respondent] located in the States of Ohio, Michigan, Indiana and Illinois."
The contract was signed some time in the latter part of April but was antedated
to April 1 because, as Slee testified, and as the undersigned finds, the 5-cent wage
increase contained in the contract was effective as of that date. It also con-
tained a closed-shop provision, and provided for a check-off despite the fact
that this system of paying dues had been "voted down" at the meeting of April
1611 Sloe and Converse testified, however, and the undersigned finds, that this
contract was intended to be in the nature of an agreement of recognition of the
Engineers, and that a more detailed contract was to be later negotiated covering
the particular phases and classifications of the foundry industry;' a later con-
tract dated June 30, 1942, was executed by the respondent and the Engineers, and
applied to "all foundries of the respondent located in Ohio."
6. Election of shop committees
On April 20, in accordance with the understanding reached, at the April 16
meeting concerning the election of shop committees, James Findley, an Engineers
8 The testimony fixing responsibility for the placing of these notices on the bulletin
boards is not clear. Slee denied any knowledge of the notices. The employees who testi-
fied concerning these notices were certain of the approximate time of their Posting and the
contents thereof ; Weatherwax was the only witness, who testified that Slee signed the
Brass Foundry notice Under the circumstances, Weatherwax's testimony in this respect
is not credited by the undersigned '
Slee and Converse testified , and the undersigned finds, that Converse asked Slee to
come to this meeting.
10 While several Board witnesses testified that the contract was not then approved,
the nature of 'the testimony is vague and indefinite. On the other hand, the minutes
of the Engineers and testimony elicited from other witnesses clearly indicates that the
contract , except for the check -off, was confirmed and accepted by the assembled men,
and the undersigned so finds.
11 There is no evidence that more than the initiation fees and the first 3 months' dues
were checked off by the respondent
n This is confirmed by the verbiage of-tbe April 1 contract , which was apparently an
exact copy of the "stone quarries" contract
5311347-43-vol 49-10
132 DEICISIONS OF NATIONAL LABOR RELATIONS BOARD
representative, -telephoned Superintendent Rellinger of the Brass. Foundry and
informed him that he would be at the foundry about lunch time for the purpose
of assisting in the election of the Brass Foundry shop committee. Immediately
after the lunch hour the employees convened in the brass cleaning room, and
the Brass Foundry shop committee was elected. This committee was comprised
of Leonard Bugert, chairman, Charles Lee, Clay McElwaine, John Kardos, and
George Vargo, Sr. With respect to the method of the selection of the com-
mittee, Lee, McElwaine, Weatherwax, and Watson testified that Rellinger ac-
tively participated by stating that he wanted older men on the committee, and
by, indicating the various nien he 'wished to be selected. These employees
further testified that the men Rellinger chose were elected as committee men.
This testimony was denied by Rellinger, Findley, Leonard Bugert, George Kemm,
Adam Seibel, Bert Kovacs, Joe Ilud9inski, and Albert Sager. Findley testified
that he was in a position to observe Rellinger's actions, and that lie did not see
Rellinger do anything other than pass in and out of the room. Rellinger ad
mitted that lie was in the room at various times during the course of this
meeting. The undersigned finds that this meeting was held on company time
and company property and that Rellinger was present at various times while
the committee was being elected. The undersigned is convinced and finds that
Rellinger did not otherwise participate in the election of the Brass Foundry
shop committee.
During the time. that Findley was at the Brass'Foundry, John Lewis, another
local representative of the Engineers, assisted at the Gray Iron Foundry in the
election of their shop committee. The men at the Gray Iron Foundry were as-
sembled by Superintendent Scott and a meeting was held on company time and
company property with Scott present at various times during the meeting The
committee members chosen were : John Blake, chairman, Bert Zwirn, J. Lewis,
F. Bunce, Harry Peck, Ion Bland, Lester Cochemour and Paul Nay.
7. Subsequent events; the appearance of the Union at the Brass Foundry
.The Brass Foundry shop committee became dissatisfied with the Engineers,13
and on June 11, 1942, communicated with the Union at Toledo. Orville Beemer,
treasurer of the Union at that time, met a number of Brass Foundry employees
in the vicinity of the foundry on the evening of June 11. Beemer accepted appli-
cations for membership in the Union. On June 12 Beemer conferred with a num-
ber of the Brass Foundry employees in a groceiy store located in the immediate
vicinity of the Brass Foundry During these meetings Brass Foundry em-
ployees signed 41 Union applications for membership One additional applica-
tion was signed by a Brass Foundry employee at a later date 14
On.the evening of June 16 the employees' shop committees of both foundries
met in Slee's office at the Brass Foundry. Both Slee and Findley were present.
The Brass Foundry committee proceeded to inform the committee of the Gray
Iron Foundry that they were no longer associated wtih the Engineers, and had
affiliated with the Union. The Brass Foundry group spoke to Slee first, and
advised him that they now represented the Union and for this reason had no
desire to sit with the Gray Iron Foundry committee ; nevertheless, both groups
13 The reason for such dissatisfaction was the committee's feeling that the Engineers
failed to speedily conclude negotiations foe a contract to supersede the Apiil 1 working
agreement
14 The Brass Foundry pay roll of June 20, 1942, discloses that 55 employees were then
employed, -inclusive of 4 supervisory and clerical workers As above found, 41 employees
signed applications for membership in the Union immediately preceding June 20, and
these employees ' names appear on the June 20 pay roll ; none of these employees Is a
supervisory or clerical worker.
THE FRANCE- FOUNDRY AND MACHINE COMTANtY 133
sat together during the meeting with Slee. At this meeting, the contract which
was later signed by the Engineers and the respondent on June 30, was discussed
by Slee and the Gray Iron Foundry group. On the following evening the Gray
Iron Foundry committee met in the A F. of L. Hall and this contract was read
and unanimously approved'
At noon on July 7 the whistle was blown at the Brass Foundry, and the men
were ordered to assemble in the aluminum cleaning room. Slee, Rellinger and
Findley were present. The contract of June 30 which previously had been
approved by the.Gray Iron Foundry committee was mentioned, and the question
of. approval of its 'previsions by the Brass ,Foundry employees arose John
Kardos informed Slee that all the men belonged to the Union Lee asked Slee
if the men could have a vote on which union they wanted. Slee replied that no,
vote could be had on the choice of a union, but that the employees could vote
on the issue of whether or not to sign the June 30 contract. Lee passed ballots
to the assembled employees, collected them after the employees voted, and
handed them to Findley Findley counted the ballots, and announced that the
vote was 41 against signing the contract and 2 in favor of signing it When the
vote was announced, according to Lee, Slee then remarked, "Now that you won't
sign the contract, I can go home happy ; as I am saving money ; I can't give you
a i aise unless you sign the contract." Slee testified that he did not state that no
vote could be taken on the union question, and he denied making the above-
mentioned statement attributed to him by Lee Lee's testimony is corroborated
by the testimony of McElwaine, Watson, and Weatherwax When asked if Slee
stated that a wage increase was dependent upon the men's acceptance of the
contract, Findley on cross-examination testified, "He might have ; I don't know
for sure." Under the circumstances, the undersigned credits Lee's entire version
of the July 7 meeting, and finds that Slee made the statements ascribed to him
by Lee.
Weatherwax testified-that on September 16, 1042, Superintendent Rellinger of
the Brass Foundry asked the Union's committee to confer with him in the
foundry's pattern shop. McElwaine, Watson, Lee, and Vargo were among those
present. Concerning Rellingel's statements at this meeting, Weatherwax testi-
fied as follows: "He said he would try to get a raise for us if we would
give him the right to hire and fire and disregard both unions and start from
scratch as we were before we had a union in there; and it we would do this,
he would go to Mr. Slee and try to get us this raise." Weatherwax's-version is
corroborated by the testimony of Lee and McElwaine. Rellinger denied that
on this date he specifically asked the men to "disregard" the Union. In view of
the circumstances, the undersigned finds that Rellinger made the statements
attributed to him by Weatherwax
Concluding Findings
The events above described reveal that the respondent introduced the Engi-
neers into its Brass Foundry and Gray Iron Foundry. They further- disclose the
respondent's strong support of the Engineers' organizational activities and efforts
to continue its existence at both foundries. That the respondent felt compelled
to conduct itself in this manner as a result of the threat of the Engineers to
,'The June 30 contract , is a more detailed agreement than the one dated April 1. It
contains a closed -shop clause and a provision for a check-off in the event that employees
are in arrears of dues Converse testified, and the undersigned finds, that the June 30
contract was "put in effect" at the Giay Iron Foundry , and not at the Brass Foundry
because of the controversy "we got into" at the Brass Foundry.
134
1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place a "gang of pickets" about these- foundries and to exert other economic
pressure affords no justification for its actions.i" Accordingly, the undersigned ^
finds that the respondent interfered with, restrained and coerced its employees In
the exercise of the rights guaranteed them in Section 7 of the Act.
The undersigned further finds that, by reason of the respondent's interfer-1
ence, restraint, and coercion in its favor, the Engineers was not, and is not a
representative freely chosen by the employees at the respondent's foundries. Since
the contracts of April 1 and June 30, 1942, with respect to the Brass Foundry
and Gray Iron Foundry, were entered into with a labor organization which had
been assisted and supported by the respondent's unfair labor practices, such con-
tracts are illegal." These contracts constitute further interference with, re•
straint, and coercion of the respondent's employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
B. The refusal to bargain
1. The appropriate unit
The complaint alleged that the production and maintenance employees of
the respondent's Brass Foundry, exclusive of supervisory and clerical employees,
constitute an appropriate bargaining unit. The Engineers and the respondent
contend that th°s unit is inappropriate, and the Engineers urge that all of the
respondent's employees engaged in work at the Brass Foundry, Gray, Iron Foundry
and Machine Shop, exclusive of supervisory and clerical employees, constitute a
unit appropriate for the purposes of collective bargaining.
The Brass Foundry and Gray Iron Foundry are situated within the city of
Toledo. Ohio, approximately seven miles apart. The Machine Shop is located
in North Baltimore, Ohio, approximately 30 miles from Toledo. The principal
d,fference between the work performed at the Brass Foundry and Gray Iron
Foundry is that in the former brass is worked upon, and in the latter gray iron
is utilized in its operations. The essential operations in these foundries are
identical and the work classifications are the same. When castings in brass or
gray iron are made at the foundries, in many cases they are shipped to the
Machine Shop for finishing Castings are sold in the commercial market and
interchanges of workers and materials between the foundries. One office, one
accounting system, awl one group insurance plan are maintained for both foun-
dries Although the operations of the Brass Foundry, Gray Iron Foundry and
Machine, Shop are integrated to a degree, each can function without the others.
Employees from both foundries testified at the bearing ; several testified that
they desired a bargaining unit comprised of employees engaged in both foundries,
while about an equal number testified that they, desired the employees in each
foundry to constitute separate bargaining units. Evidence of uncoerced choice
is found in the independent action of the Brass Foundry employees in affiliating
with the TTnion, thus indicating a separation of interests from other employees and
a desire to he treated apart from them. -
In 1937 the respondent bargained collectively with an affiliate of the Union
which ('armed to represent the employees of the Brass Foundry, and a tentative
16 See National Labor Relations Board v. Star Publishing Company/, 97 F. (2d) 465
(C C \ ')( : Matter of The-New York and Porto Rico Steamship Company, 34 N . L. R. B.
10"R: Hatter of Ward Bakinq Company , etc, 8 N . L. R B 558; Wilson & Co., Inc. v.
National Labor Relations Board, 123 F. (2d) 411 (C. C. A. 8) ; McQuay-Norris Mfg. Co.
v N T, R B . 116 F. (2d) 748 (C C A 7).
17 See International 4 ssociation of Machinists v National Labor Relations Board, 311
U S 72; National Labor Relations Board v: Electric Vacuum Cleaner Company, 316
U. S 685.
THE FRANCE FOUNDRY AND MACHINE 1COMPANIY, 135
agreement was reached.18 The respondent, aluo bargained with a labor organiza-
tion affiliated with the American Federation of Labor as the represents=
Live of the molders in its Gray Iron Foundry As late as February 15, 1941,
the respondent entered into an agreement with International Molders & Foundry
Workers Union, Local 425, affiliated with the American Federation of Labor,
whereby the respondent agreed that'it would "Upon request bargain collectively
with the Union [International Molders & Foundry Workers Union, Local 425,
affiliated with the American Federation of Labor] as the exclusive representa-
tive of its production and maintenance employees" at its Gray Iron Foundry.19
It is clear, therefore, in light of this past history, that the respondent considers
each of its Toledo foundries to be a separate unit for the purpose of collective
bargaining. Moreover, this history indicates that the choice of the respondent's
employees has been expressed in favor of separate units composed of employees-
,in each foundry.
In view of the foregoing, the undersigned finds that all production and mainte-
nance employees of the respondent at its Brass Foundry, located at Bancroft
Street, in the city of'Toledo, Ohio, exclusive of supervisory and clerical employees,
at all times material herein constituted and now constitute a unit appropriate for
the purposes of collective bargaining with respect to rates of pay, wages, hours of
employment, or other conditions of employment and that said unit insures to
employees of the respondent the full benefits of their right to self-organization and
to collective bargaining and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
The respondent's Brass Foundry, payroll for June 20, 1942, lists 55 employees of
whom 51 are within the unit above found to be appropriate. As heretofore found,
of these 51 employees, 41 signed applications for membership in the Union on June
11 and 12, 1942. Consequently, the undersigned finds that the Union at all times
material herein represented 41 of the 51 employees in the appropriate unit.20
The undersigned finds that at all times material herein, the Union was the duly
designated representative of a majority of the employees in the aforesaid appro-
priate unit, and that, by virtue of Section 9 (a) of the Act, the Union was at all
times material herein and is the exclusive representative of all the employees in
such unit for the purpose of collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employment.
3. The refusal to bargain
Following the obtaining of the signatures of 41 employees within the unit found
above to be appropriate and on June 15, 1942, Beemer communicated with the
respondent by telephone and spoke to Superintendent Rellinger of the Brass
Foundry. Beemer informed Rellinger that the Union represented a majority of
the employees at the Brass Foundry and called upon the respondent to negotiate
"in regard to a contract." Rellinger transferred the telephone call to Slee. Slee
advised Beemer that "he believed he was tied up with another union but that he
11A written contract was-iievervexecuted bythe, respondent and this, organization, for
immediately after the agreement was reached the Brass Foundry was struck, and there-
after a fire caused the respondent to halt its Brass Foundry operations for a number
of months.
13 Although the evidence is not clear, it appears that this organization is the American
Federation of Labor affiliate with which the respondent has been dealing as the bargaining
agent of its Gray Iron Foundry molders.
20 Beemer's uncontradicted testimony shows, and the undersigned finds, that the Union
application forms received in evidence were "final" applications, and that the employees
who signed signified their intention to apply for membership in the Union. _
11
136 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
would consult his attorney and let" Beemer know the next day. Beemer tele-
phoned Slee on the next day and was informed by him that he had been unable
to communicate with his attorney. During this conversation Beemer told Slee
that he was sending him a letter advising the respondent to refrain from bargain-
ing with any other union "because they, did not represent a majority of his em-
ployees, and that we did, and that if he failed to negotiate with us we intended
filing a petition for an election," and that a copy of this letter was being sent to
the Board. On June 16 the Union prepared aletter addressed to the respondent.
The letter apprised the respondent of the Union's-status as the representative of a
majority of the respondent's employees at the Brass Foundry ; it called upon the
respondent to indicate whether or not the respondent would recognize the Union
as such representative, and negotiate accordingly; it cautioned the respondent
against entering into any contract with any other labor organization; it stated
that the Union would file unfair labor practice charges with the Board in the
event that the respondent recognized or dealt with any other organization as the
representative of the respondent's employees at the Brass Foundry ; and it stated
that the Union would file a petition with the Board for its certification as the
exclusive bargaining agent for the respondent's employees at the Brass Foundry
should the respondent "fail or refuse to comply" with the Union's request. On
June 17 Slee telephoned Beemer and stated that he had not as yet received this
letter, whereupon Beemer assured Slee that it had been mailed. On June 18
Beemer and Slee had another conversation, during the course of which Slee advised-
Beemer that he had received the letter prepared on June 16, and asked shim how
long this "Union stuff had been going along" ; Beemer replied, "for some' time."
At this time Beemer again asked that the respondent bargain with the Union, and
Slee promised that on the following day he would communicate with Beemer and
let him know definitely. In the course of this conversation Beemer reiterated that
the Union represented a majority of the Brass Foundry workers. Slee's secretary
telephoned Beemer on the morning of June 19 informing him that Slee was called
out of town and would return to Toledo on June 22. On June 22 Beemer attempted
to communicate with Slee and failed to reach him. On June 23, at about 10: 30
p. m., Beemer finally communicated-with Slee at the latter's home. Again Beemer
demanded that the respondent bargain with the Union as the "representative of
the majority" of its employees ; arid, glee replied that he would-not do so because he
"was attached to-this other union" and had a contract running until April 1, 1943."
Beemer on this occasion also asked Slee to consent to an. election; bu$.Slee refused 21
The respondent based its refusal to bargain with the Union on the ground
that it was bound to a contract with the- Engineers. Since the undersigned has
found that the agreements of April 1, and June 30,1942; 'entered into-by the re-`
spondent and the Engineers, are illegal in their application to the respondent's
foundries and constitute further interference, restraint and coercion of the
respondent's employees in the exercise of the rights guaranteed them in Section
7 of the Act, the respondent's refusal was wholly without merit.
The undersigned accordingly finds, that on June 23, 1942, and at all times
thereafter, the respondent refused to bargain collectively with the Union as
the exclusive representative of its employees in the unit found above to be
appropriate, and has thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed them in Section 7 of the Art.
C. The discriminatory discharge of Charles Lee
1 Charles Lee was employed by the respondent at its Brass Foundry on December
10, 1939, and continued in his employment, until October 6, 1942. Lee was em-'
21 The above findings are based upon the uncontradicted testimony of Beemer.
THE Fl ANCE FOUNDRY AND MACHINE 1COXITANY 137
ployed in fhe brass cleaning room, and on'October 6, 1942, had been employed for
a longer time than any other employee in his department. He joined the Engi-
neers on December 22, 1941, and was elected a member of its Brass Foundry shop
committee. On June 11, 1942, Lee affiliated with the Union and became one of
its most active members. He was chairman of the Union shop committee and
was active in soliciting members for the Union
Lee testified as follows concerning a conversation he had with Slee shortly
after he had joined the Union:
He came in my room when I was running the portable grinder and said to
me, he said, "Charles, I didn't think you was that kind of a man."
And I said to him what kind of a man did he mean, and he said, "To join
the union."
I said, "As far as that goes I am still the same man to you acid your coin-
parry and I have always been 1 stood loyal to you and your company."
"lee did not deny having made this statement, and the undersigned finds that the
conversation occurred as related by Lee.
Lee testified, and the undersigned finds, that on October 6, 1942, lie was told
that Slee wanted to see him; lie went into Slee's office where Slee told him pro-
duction had fallen off and that he was responsible for it; Slee thereupon dis-
charged him Rellinger testified that he had been investigating the decline
in production for some time; that he found that his orders were not carried out
by the employees as they should have been ; that the men were congregating
and holding conversations during working hours causing a decrease in the re-
spondent's output. He further testified as follows with respect to Charles Lee :
"Well, Charles Lee, as I have investigated, for several weeks, I find that when
1 issue.orders in the plant or try to carry out, it seems like they had to see some
one else, and presumably by checking, it went back to Charley Lee." The ac-
cusation that Lee was responsible for the decline in production is vague and not
supported by the evidence. There is no showing of any specific instances of Lee's
interference with production. Lee's work in the brass cleaning room was not
directly related to the Brass Foundry's production. Lee denied talking to the
men during working hours, leaving his work," or acting in any manner that would
result in a' decline in production, and the undersigned so finds . The evidence is
uncontradicted that Lee was a capable and efficient worker, and Rellinger so
testified.
The undersigned accordingly finds Lee was discharged because of his member-
ship ill and activities on behalf.of the Union, and not because of any responsibility
for the Brass Foundry's'decreased production.
The undersigned finds that the respondent discharged Charles Lee on October
6, 1942, because of his membership in and activity on behalf of the Union thereby
discriminating in regard to his hire and tenure of employment, discouraging
membership in the Union, and interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT' OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the-respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among 'the" several States' and tend, to lead to labor disputes, burdening and
obstructing commerce and the free flow of commerce.
21 Slee did not testify concerning the circumstances . surrounding Lee's discharge, and
Lee's testimony is uncontradicted in this regard.
isdphis denial is supported by the testimony of John Jensen , one of Lee's fellow workers.
138 DECISIONS (F NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since it has been found that the respondent has been engaged in certain unfair
labor practices it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act and
to restore as nearly as possible'the status quo existing prior 'to the commission
of the unfair labor practices. ,
Since it has been found that the respondent refused to bargain collectively
with the Union as the representative of the- majority of the respondent's em-
ployees within an appropriate unit, it will be recommended that the respondent
upon request bargain collectively with the Union.
Since it has been found that the closed-shop contracts entered into by the
respondent and the Engineers and dated April 1 and June 30, 1942 are invalid
with respect to the respondent's foundries because the Engineers did not repre-
sent a free and uncoerced majority of the respondent's employees in an appro-
priate unit at the time the contracts were executed and because these contracts
are the results of, and constitute in themselves, unfair labor practices, it will
be recommended that the respondent cease and desist from giving effect to said
contracts in their application to its foundries as well as to any extensions, re-
newals, modifications, or supplements thereof, and any superseding' contracts
which may now be in force. Nothing herein, however, shall be determined to
require the respondent to vary its wage, hour, seniority, or other substantive
features of its relations with the employees themselves, which the respondent
has established in performance of the contracts or the said contracts as extended,
renewed, modified, supplemented or superseded.
Since it has been found that the respondent discharged Charles' Lee because
of his membership in and activity on behalf of the Union, it will be recommended
that the respondent offer to Charles Lee full reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority and other rights
and privileges, and make him whole for any loss of pay he may have suffered
by reason of the respondent's discrimination against him by payment to him of
a sum of money equal to the amount which he normally would have earned as
wages from the date of his discharge to the date of the offer of reinatatement,'less
his net earnings," during said period.'
It will also be recommended under the circumstances of this case that the
respondent be ordered to reimburse each employee at its Brass Foundry and Gray
Iron Foundry for any amounts which the respondent has deducted from his
wages for Engineers' initiation fees or dues. The respondent deducted initiation
fees and dues from its employees, thus aiding a company-assisted union. The
check-off system could not be avoided by the employees. ' The undersigned finds
that the money thus deducted from the wages of the employees constituted the
price of retaining their jobs, a price coerced from them for the respondent's
purpose of supporting and assisting the Engineers. The undersigned further
finds as a result of the imposition of the check-off system the employees suffered
a definite loss and deprivation of wages equal to the amounts deducted from their
wages and paid to the Engineers. It is appropriate that the employees be made
2• By "net earnings" is, meant,earnings less expenses, such as for transportation,. room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Bt otherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R B. 440. Monies received for
work performed upon Federal, State, county, municipal, or other work-relief projects shall
be considered as earnings, See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
/
THE FRANCE FOUNDIRY AND MACHINE C'OM,PANIY 139
whole by reimbursement of amounts exacted from them for illegal purposes.
The undersigned will therefor recommend that in these circumstances the effects
of the unfair labor practices may be fully remedied and the purposes and policies
of the Act may be completely effectuated only by restoring the status quo. Hence,
it is recommended that the respondent reimburse its employees for the amounts
deducted from their wages for initiation fees and dues in the Engineers.
Upon the basis of the foregoing findings of fact dnd upon the entire record
in-the case. the undersigned makes the following
CONCLUSIONS OF L--,w
1. International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, Local #12, affiliated with the Congress of Industrial Or-
ganizations, and International Union of Operating Engineers, affiliated with
the American Federation of Labor, are labor organizations, within the meaning
of Section 2 (5) of the Act.
2. All maintenance and production employees of the respondent at its Brass
Foundry, located at Bancroft Street, Toledo, Ohio, exclusive of clerical and
supervisory employees, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
3. International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, Local #12, affiliated with the Congress of Industrial Or-
gganizations, was on June 12, 1942, and at all times thereafter has been the
exclusive representative of all the employees in the aforesaid unit for the pur-
poses of collective bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing on June 23, 1942, and at all times thereafter, to bargain col-
lectively with International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, Local #12. affiliated with the Congress of
Industrial Organizations, as the exclusive representative of its employees in
the appropriate unit, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Charles
Lee and thereby discouraging membership in International Union, United Ailto-
mobile, Aircraft & Agricultural Implement Workers of America, Local #12,
affiliated with the Congress of Industrial Organizations, the respondent has
engaged in and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
6. By assisting the'International Union of Operating Engineers and by inter-
fering with, restraining, and coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8 (1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the•respondent, The France Foundry & Machine Company,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a.) Refusing to bargain collectively with. International Union, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America, Local #12,
affiliated with the Congress of Industrial Organizations, as the exclusive repre-
sentative of all maintenance and production employees of the respondent at its
Brass Foundry, located at Bancroft Street, Toledo, Ohio, exclusive of clerical
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and supervisory employees, with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment ;
(b) Discouraging membership in, International Union, United Automobile, Air-
craft & Agricultural Implement Workers of America, Local-#12;affiliated with-the
Congress of Industrial Organizations, or any other labor organization of its
employees, by discriminating in regard to the hire and tenure of employment
or any other terms or conditions of employment of its employees ;
(c) Giving effect to the contracts dated April 1, 1942, and June 30, 1942, with
International Union of Operating Engineers, affiliated with the American Federa-
tion of Labor, with'respect to their application to the respondent's Brass Foundry
and Gray Iron Foundry, located in Toledo, Ohio, or to any extensions, renewals,
modifications, or supplements thereof, and any superseding contracts which may
now be in effect ;
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form, join, or assist labor
organizations, to bargain, collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will effec-
tuate the policies of the Act :
(a) Upon request, bargain collectively with,International Union, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America, Local #12, affili-
ated with the Congress of Industrial Organizations, as the exclusive m epresentative
of all maintenance and production employees of the respondent at its Brass
Foundry, located at Bancroft Street, Toledo, Ohio, exclusive of clerical and super-
visory employees, with respect to rates of pay, wages, hours of employment, and
other conditions of employment ;
(b) Offer to Charles Lee immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority and other
rights and privileges ;
(c) Make whole Charles Lee for any loss of pay he may have suffered by reason
of the respondent's discrimination in regard to his hire and tenure of employ-
ment, by payment to him of a sum of money equal to that which he normally would
have earned as wages from the date of his discharge to the date of the respondent's
offer of reinstatement, less his net earn , ings,25 during said period
(d) Reimburse each of its employees at its Brass Foundry, located at
Bancroft Street, Toledo, Ohio, and at its Gray Iron Foundry, located at Girard
Street, Toledo, Ohio for all initiation fees and dues of International Union of
Operating Engineers, affiliated with the American Federation of Labor which
it has deducted from his or her wages.
(e) Post immediately in conspicuous places in its Gray Iron Foundry at Girard
Street, Toledo, Ohio, and in its Brass Foundry at Bancroft Street, Toledo, Ohio,
and maintain for a period of at least sixty (G0) consecutive days from the date
of posting, notices to its employees stating: (1) that the respondent will not
engage in the conduct from which it is recommended that it cease and desist in
,paragraph 1 (a), (b), (c),.and (d) of these recommendations; (2) that the
respondent will take the affirmative action recommended in paragraph 2 (a),
(b), (c) and (d) of these recommendations; and (3) that the respondent's
employees are free to become or remain members of International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America, Local #12,
affiliated with the Congress of Industrial Organizations, and that the respondent
20 See footnote 24, supra.
THE FRANCE FOUNDRY, AND MACHINE COMPANTY'' 141
will not discriminate against any employee because of his membership or activity
in said organization; _
(f) Notify the Regional Director of the Eighth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report, what steps,
the respondent has taken to comply herewith.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
. As,provided in Section '33 of Article II of the' Rules and Regulations of the
National Labor Relations Board-Series 2-as amended, effective October 28,
1942, any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, D. C, an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as it relies upon,
together with an original and four copies of a brief in support thereof. As further
provided in said Section 33, 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 after the dizte of the order transferring the case to the Board.
PEYTON FORD,
Trial Examiner.
Dated December 14, 1942