Florence Pipe Foundry & Machine Co.

National Labor Relations Board - Board Decisions

May 27, 1955

112 N.L.R.B. 960 (N.L.R.B. 1955)

960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Farmer and Mem-
bers Murdock and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.'
2. The labor organization named above claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All truckdrivers and warehouse employees at the Employer's Mem-
phis, Tennessee, warehouses, including the maid,2 but excluding all
office clerical employees, professional employees, technical employees,
watchmen, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
1 The Employer is a Tennessee corporation with its principal office and place of business
at Memphis, Tennessee , where it owns two warehouses and is engaged in the dry storage
of merchandise for various customers . This merchandise is delivered to the docks of its
warehouses by interstate trucking firms and railroads During the 1954 calendar year,
the Employer furnished warehouse facilities for which it received $183,928 .06, of which
80 percent was received for storage services on goods which originated outside the state
of Tennessee . Upon receiving instructions from its customers , the Employer released about
80 percent of the stored merchandise at its docks for shipment outside the State of Ten-
nessee. As the Employer' s warehouse activities constitute a link in the chain of interstate
commerce and its annual income received for these storage and shipping services rendered
which constitute a part of interstate commerce totals in excess of $100,000, we find that it
would effectuate the purposes of the Act to assert jurisdiction over the Employer. Breeding
Transfer Company, 110 NLRB 493.
2 The parties agree generally upon the composition of the requested unit. However, the
Petitioner would exclude a maid who performs cleaning duties in the warehouse office and
goes on errands for the warehouse employees . The Employer is neutral . We find that
she has interests in common with the trucking and warehouse employees and therefore
include her in the unit . United States Gypsum Company , 109 NLRB 1402.
Florence Pipe Foundry & Machine Co. and Pattern Makers
League of North America , Philadelphia Association, AFL
Local 2040, United Steelworkers of America, CIO and Pattern
Makers League of North America , Philadelphia Association,
AFL. Cases Nos..-CA-1038 and 4-CB-219. May 27,1955
DECISION AND ORDER
On February 2, 1955, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
112 NLRB No. 120.
FLORENCE PIPE FOUNDRY & MACHINE CO. 961
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and supporting briefs, and
requested oral argument. The requests for oral argument are hereby
denied because the record and briefs, in our opinion, adequately pre-
sent the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings and conclusions of the Trial Ex-
aminer insofar as they are consistent with the findings, conclusions,
and order set forth below.
1. We agree with the Trial Examiner that employees engaged in
the work of pattern mounting in the Company's pattern shop are with-
in the unit description of the Pattern Makers' certification and out-
side the production and maintenance unit which the Steelworkers is
entitled to represent.
The record shows, as set forth in the Intermediate Report, that on
September 28, 1950), as the result of a craft severance proceeding ini-
tiated by the Pattern Makers (Case No. 4-RC-1971), the Board certi-
fied that union as the collective-bargaining representative of the
Company's patternmakers and patternmaker apprentices, who, until
then, had been included in an overall production and maintenance unit
represented by the Steelworkers. No mention was made in the Board's
decision in the severance proceeding 1 of the work of pattern mounting.
The record in the instant case shows, however, that at the time of the
certification and for many years previously, the Company's pattern-
makers and apprentices had performed the function of pattern mount-
ing in the pattern shop, that this work requires the use of the same tools
as patternmaking, and that it involves the exercise of skills acquired by
patternmakers in the course of their apprenticeship. We therefore
find, as did the Trial Examiner, that the work of pattern mounting in
the Company's pattern shop is directly related and incidental to the
work of patternmaking, and that employees engaged in such work are
therefore within the scope of the Pattern Makers' certification in Case
No. 4-RC-1971.2
1106 NLRB 828
2 Although the Steelworkers and the Company, in 1951, had negotiated a job evaluation
plan which included a new job classification of pattern mounter in the pattern shop, and
a job description had been drawn up, the job had not been filled at the time of the cot tifi-
cation of the Pattern Makers As our unit finding relates to conditions existing at the
time of the Board's decision in the representation proceeding, the fact that the pattern
mountei's job was subsequently filled by a production and maintenance employee who is
neither a patternmaker nor a patternmaker apprentice is clearly immaterial to a deter-
mination of the unit issue.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner further found that the Company violated
Section 8 (a) (1) and (5) of the Act by negotiating or otherwise treat-
ing with the Steelworkers and by applying the Steelworkers' contract
in regard to posting and filling the pattern mounting job in the pat-
tern shop; that it violated Section 8 (a) (1) and (3) by acceding to the
Steelworkers' pressures to reassign the pattern mounting work in
reprisal against the patternmakers for voting out the Steelworkers and
selecting the Pattern Makers as their bargaining representative; and
that the Steelworkers violated Section 8 (b) (1) (A) and (2) by at-
tempting to cause and actually causing the Company to so discriminate
against the patternmalzers. We deem it unnecessary to pass upon these
findings, for even assuming, without deciding-, that the Respondents
have violated the Act, we are of the opinion that, under the special cir-
cumstances of this case, no remedial order is required. The only tnnfair
labor practices alleged have arisen out of a dispute between the two
unions as to the scope of the Board's certification of the Pattern
Makers; there is no contention or evidence that the Company has
refused to bargain with the Pattern 'Makers on any other Issue or that
any patternmaker or apprentice has lost his job or any wages as a
result of the assignment of pattern mounting to the Steelworkers. As
the unit question has been fully litigated in this proceeding, and as
there appears no reason to believe that the parties will refuse to accede
to our determination of this question, we shall dismiss the complaint
in its entirety.
[The Board dismissed the complaint.]
MEMBER LEEDO1VI took no part in the consideration of the above De-
cision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Pattern Makers League of North America, Philadelphia
Association, AFL (a labor organization herein called the Pattern Makers), the Gen-
eral Counsel issued a consolidated complaint on June 24, 1954, against Florence Pipe
Foundry & Machine Co and against Local 2040, United Steelworkers of America,
CIO (a labor organization herein called the Steelworkers), alleging violations of Sec-
tion 8 (a) (1), (3), and (5) as to the Company and of Section 8 (b) (1) (A) and
(2) as to the Steelworkers. Copies of the complaint and charges were served upon
the Respondents, and the Respondents thereupon filed answers denying the commis-
sion of the unfair labor practices alleged.
Pursuant to notice, a hearing was held in Trenton, New Jersey, on August 12 and
September 30, 1954, before the duly designated Trial Examiner All parties were
represented by counsel and were afforded full opportunity to be heard, to adduce
relevant evidence, to present oral argument, and to file briefs and proposed findings
and conclusions. Motions of the Respondents to dismiss the complaints are disposed
of in accordance with the following findings of fact and conclusions of law
Upon the record, and upon the observation of the demeanor of witnesses, I make
the following-
FLORENCE PIPE FOUNDRY & MACHINE CO. 963
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent Company is a New Jersey corporation with its principal plant at
Florence, New Jersey, where it is engaged in the manufacture of pipe and related
products. The value of Respondent's interstate shipments exceeded $500,000 in 1953.
I find that the Company is engaged in commerce within the meaning of the Act.
H. UNFAIR LABOR PRACTICES
A. Chronology of events
Respondent Steelworkers was certified by the Board in 1940 as exclusive bargaining
representative of all production and maintenance employees of the Company,' includ-
ing patternmaking employees, and the Steelworkeis has had contracts with the
Company since then. In April 1953, the Pattern Makers instituted representation
proceedings seeking certification of the Company's patternmakei s and patternmaker
apprentices, the Steelworkers intervened in that case and opposed the Pattern Makers'
proposed unit. The Board overruled the Steelworkers' contention and directed an
election in the unit requested (106 NLRB 828), and on September 28, 1953, the
Board certified the Pattern Makers, after an election won by the Pattern Makers, as
statutory bargaining representative of the Company's "patternmakers and pattern-
maker apprentices " The effect of this certification was to sever approximately 10
patternmakers and apprentices from the plantwide unit of approximately 1,100
employees represented by the Steelworkers.
On December 4, 1953, the Pattern Makers and the Company executed a collective-
bargaining agreement, to expire in January 1955, covering the Pattern Makers' unit.
This contract contains, inter alia, grievance and arbitration provisions, union-security
provisions, and a management clause (article XVII) which states that "Management
of the plant and the direction of the working forces, including the right to hire, suspend
or discharge for proper cause, and the right to relieve employees from duties because
of lack of work or for other legitimate reasons is vested exclusively in the Company,
provided that this will not be used for the purpose of discrimination against any
member of the Union "
The work of the Company's patternmakers at the time of the aforementioned
representation case, and during a period of approximately 30 years before, included
a function known as pattern mounting. In October 1953, shortly after the Pattern
Makers' certification, the Steelworkers filed a grievance under its then current con-
tract with the Company, the Steelworkers thereby claimed that "the job of pattern
mounting was beyond the scope of [the Pattern Makers'] bargaining unit" and
demanded that the Company "fulfill their obligations under the [Steelworkers']
contract, to post the [pattern mounting] job that existed in the pattern shop."
According to the testimony of Steelworkers' Representative John Kelley, the Steel-
workers thus "wanted a member of the production and maintenance employees . . .
to handle that [pattern mounting] job, rather than a pattern maker." The Company
rejected the Steelworkers' grievance in the initial and intermediate stages of the
contract grievance procedure, the Company's stated position being that "it has always
been a function of patternmakers to mount patterns. We believe this practice should
continue " The Steelworkers thereupon took the matter to arbitration in accordance
with arbitration provisions of the Steelworkers' contract with the Company.
The arbitration hearing was held on January 20, 1954 The Pattern Makers
did not appear or otherwise participate although invited by the Company to do so.
In addition to opposing the Steelworkers' claim on the merits, the Company also
contended at the arbitration hearing that the pattern mounting matter was not
arbitrable. On February 23, 1954, the arbitrator issued his award and opinion; he
rejected the Company's contention that the matter was not arbitrable and he otherwise
sustained the Steelworkers' claim that pattern mounting belongs within the Steel-
workers' bargaining unit in accordance with the recognition clause, article I, of the
Steelworkers' contract. (This article provides that "the term `employees' as used in
this agreement [and as to whom the Steelworkers is recognized "as the sole collective
bargaining agency"] refers to production and maintenance men only. . . . Pattern
Makers and Pattern Makers' apprentices are excluded from this agreement, pending
determination of their jurisdiction "
The Steelworkers advised the Company at the conclusion of the arbitration pro-
ceeding that several avenues were available to the Steelworkers to compel the Com-
20 NLRB 150
.300028--5G-col 112-62
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany's compliance with the award: an unfair labor practice action before the Board;
a suit in the State court for performance of the award, or a strike at the expiration
of the Steelworkers' then current contract with the Company. The Steelworkers made
it "perfectly clear" to the Company in this connection, according to Steelworkers'
testimony, "that if in the interim, prior to the expiration of our then contract, the
Company would not abide by the arbitrator's award and if the dispute so resultant
would not be otherwise decided in such interim, then at the expiration of the contract,
in the absence of an agreement, we would resort to our right to strike."
On March 3, 1954, the Company requested the Board's Regional Director to meet
with the Company and the two rival unions in an effort to reach an amicable resolution
of the pattern mounting dispute; the parties accordingly met on March 24, but
without success. Meanwhile, on March 8, 1954, the Company acceded to the
Steelworkers' demands and posted a notice on its bulletin boards announcing an
opening for a pattern mounter in the pattern shop, the notice also stating, in effect,
that the job would be filled in accordance with applicable seniority and other pro-
visions of the Steelworkers' contract with the Company. On April 9, the Company
accordingly appointed to the job one George Lee whom it transferred, in conformity
with the Steelworkers' contract, from another department within the Steelworkers'
unit. Lee had been and was then required to be a member of the Steelworkers, for
the Steelworkers' contract contained a union-shop provision.
The Company had not met with the Pattern Makers concerning the pattern
mounting matter before posting the job notice of March 8; it did meet with the
Pattern Makers afterward, however, but only to advise the Pattern Makers that the
Company "was going" to transfer Lee to the position. The Pattern Makers, mean-
while, had not specifically requested the Company to bargain concerning the matter,
or in behalf of Lee; however, throughout the entire period under consideration it
has taken the position, and as it advised the Company, that the pattern mounting
function was within its certification and that the Company could not lawfully deal
with the Steelworkers in the premises.
In July 1954, after issuance of the complaint in this case, the Company filed a mo-
tion with the Board by which it sought to reopen the 1953 representation case so
that the Board might clarify the unit description and thus resolve the issues presented
by the complaint in the present case. The Steelworkers opposed the motion on the
ground that the matter should be resolved in the instant complaint case. The Board
denied the Company's motion on July 26, 1954.
B. The pattern mounting work in question
In its 1953 Decision and Direction of Election upon the Pattern Makers' petition,
the Board described the unit of patternmakers and apprentices as follows (106
NLRB 828, at p. 830) :
The Employer is engaged in the manufacture of cast iron pipe, hydrants,
valves, and related fittings and machinery castings. The pattern shop is located
in a separate building adjacent to 2 pattern storage buildings and the main
machine shop. There are 9 patternmakers, 2 apprentice patternmakers, a pat-
tern storageman, a janitor, a flaskmaker, a truckdriver, and a helper assigned to
the pattern shop They are all under the immediate supervision of the pattern
shop foreman who is directly responsible to the assistant to the general foundry
foreman. The patternmakers perform the usual tasks of their craft and exercise
the customary skills of journeymen patternmakers. They are engaged in re-
pairing metal patterns, making new patterns, and checking the dimensions of
patterns against blueprint specifications. They do not perform any production
work. The pattern storageman, although a former patternmaker, no longer
performs the duties assigned to the craftsmen in the pattern shop. The Peti-
tioner seeks to represent only the patternmakers and apprentices. .. .
The decision does not mention pattern mounting work; the record in that case shows,
however, that pattemmakers were performing such work at the time and the present
record further shows, as already stated, that patternmakers alone had been doing
pattern mounting work in the pattern shop for many years
Pattern mounting in the Company's pattern shop consists generally of centering a
finished wood pattern on a plate, of either wood or metal, with risers and gates so
that a mold can be made from the pattern. This task involves the use of the same
tools and equipment employed in making or repairing a pattern, such as woodturning
tools, chisels, shrinking rules, bandsaws, ripsaws, planers, sanders, lathes, and core-
box machines. The skill and knowledge utilized in pattern mounting is acquired by
patternmakers during their apprenticeship. This pattern mounting, according to
FLORENCE PIPE FOUNDRY & MACHINE CO. 965
George H. Smith, the Company's assistant foreman in charge of the pattern shop, is
"part of pattern making."
During the 2-year period before Lee was transferred to pattern mounting and thus
came under pattern shop supervision, there was insufficient pattern mounting to
keep even one patternmaker fully occupied at that work alone; upon Lee's transfer,
however, the job became a full-time one, one reason being that Lee's skills and train-
ing are not those of a patternmaker and he has taken longer than a patternmaker to
do the work. Moreover, even since Lee's accession to pattern mounting, the pattern-
makers have still been given some of the more difficult mounting assignments and the
patternmakers have otherwise been required to assist Lee in the job.
In addition to the pattern mounting in the pattern shop, with which we are con-
cerned here, the Company has pattern mounters in its foundry department under
foundry department supervision. These foundry pattern mounters do not use wood-
working tools; they use, instead, production tools such as cranes and drill presses.
On those occasions when pattern mounting in the foundry requires gates and risers,
such work is performed in the pattern shop by pattern shop personnel. Pattern
mounting in the pattern shop thus differs in skills and job content from foundry
pattern mounting, as Company Personnel Director Louis H. Kite testified; and the
jobs are not interchangeable, Kite also testified. The Pattern Makers does not claim
to represent the employees who mount patterns in the foundry.
In January 1951 the Company and the Steelworkers, the latter then representing
the patternmakers and all other plant personnel, initiated a job evaluation program;
and in July 1952 they accordingly negotiated a job classification called pattern mount-
ing in the pattern shop, the job description specifying a lower wage rate than that
paid to patternmakers. This pattern shop mounting job remained a "paper" one,
as the Pattern Makers asserts here; for the patternmakers continued doing that
mounting work as they always had done, and at their regular patteinmaker rate; and
it was not until the Pattern Makers obtained its certification upon winning the
election in 1953 that the Steelworkers urged that an actual pattern mounting job in
the pattern shop should be set up and filled in accordance with the 1952 classification,
separate and apart from so-called patternmaking functions.
C. Resolution of issues
The General Counsel contends that the Company violated Section 8 (a) (1) and
(5) of the Act by recognizing the Steelworkers as bargaining agent as to pattern
mounting work in the pattern shop, the theory being that such function is covered
by the Pattern Makers' certification and that only the Pattern Makers is entitled to
deal with the Company in that regard. The General Counsel also contends that the
Company violated Section 8 (a) (1) and (3) of the Act by removing pattern mount-
ing from patternmakers and assigning it instead to an employee (Lee) who was
within the Steelworkers' bargaining unit and who was therefore obliged to be a
member of the Steelworkers under the latter's contract with the Company. The
General Counsel also claims that the Steelworkers violated Section 8 (b) (1) (A)
and (2) of the Act by causing the Company to discriminate against the pattern-
makers in violation of Section 8 (a) (1) and (3) of the Act. The Company con-
tends, on the other hand, that it acted in good faith in complying with the arbitrator's
award and it further asserts that the complaint should be dismissed because the
Pattern Makers never requested the Company to bargain concerning pattern mount-
ing work and also because there is no showing, in effect, that the Company had failed
or otherwise refused to take up the matter as a grievance under the grievance pro-
visions of the Pattern Makers' contract. The Steelworkers asserts, inter alia, that the
Pattern Makers' certification does not encompass pattern mounting and is therefore
covered by the Steelworkers' certification, and it therefore also contends that the
aforementioned strike threat and its other action does not, in the circumstances of
this case, constitute a violation of the Act.
Presumably, when the Board establishes a unit on a craft basis it certifies a union
to represent employees who use the skills of their trade on their job. There is no
question here, the Board has already so determined, that the Company's pattern-
makers are skilled employees who employ their craft skills in the pattern shop. Citing
the testimony of the Pattern Makers' President Protheroe in the representation case
that the Company's patternmakers are employed "100% of their time in the making,
altering, and repairing of patterns" and that Protheroe disclaimed other jobs in the
pattern shop, the Steelworkers contends that the Pattern Makers thereby also dis-
claimed pattern mounting particularly in view of the fact that the Steelworkers and
the Company had negotiated a pattern mounting classification in July 1952. As the
patternmakers were performing pattern mounting at the time and as the pattern
mounting classification had never been put into effect, I would interpret Protheroe's
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remarks as meaning that he considered such mounting to fall within the phrase
"making, altering , and repairing"; and it further seems to me that the functions which
Protheroe did not claim were those which patternmakers were not performing and
which are specifically mentioned in the Board 's decision , namely, "a pattern storage-
man, a janitor , a flaskmaker , a truckdriver , and a helper ." While pattern mounting
in the pattern shop may not involve the fullest scope of a patternmaker 's skills,
such pattern mounting as historically performed by the Company 's patternmakers
does entail a degree of such craftmanship . The record fully establishes that this pat-
tern mounting is "part of pattern making, " as Mr. Smith testified , and is, in any
event, directly rela.ed and incidental to it I conclude , therefore , that employees
engaged in such work are within the scope of the unit description of the Pattern
Makers' certification and necessarily outside the unit which the Steelworkers is en-
titled to represent . Cf. National Oats Company , 110 NLRB 623 (as to the pellet
machine operator ); Westinghouse Radio Stations, Inc., 107 NLRB 1407 ( as to Emmel
and McKinney ); Local 211, United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry , 107 NLRB 463.
The exclusive bargaining mandate of Section 8 ( a) (5) of the Act carries with
it "the negative duty to treat with no other " as to matters pertaining to the affected
unit. N. L. R. B . v. Jones & Laughlin Steel Corp , 301 U. S . 1, 44-45; Medo Photo
Supply Corp. v. N. L. R. B., 321 U. S. 678, 683 -684. Unless it is otherwise privileged
here, the Company has therefore violated this exclusive bargaining mandate by
negotiating or otherwise treating with the Steelworkers and by applying the Steelwork-
ers' contract in regard to posting and filling the pattern mounting job in the pattern
shop It is true, as the Company contends , that a demand by the statutory bargaining
representative is ordinarily a necessary condition to establishing a violation of
Section 8 ( a) (5) of the Act . Implicitly , however, the demand always was present
here , for the Pattern Makers made it pellucidly clear to the Company throughout the
entire situation that the Pattern Makers alone , and not the Steelworkers , was entitled
to treat with the Company concerning pattern mounting . Moreover , there was really
nothing left to discuss , for the Company advised the Pattern Makers what it "was
going" to do , and that was that. Furthermore , where a union has been certified by
the Board , it would seem fundamental that the union is not then required to nego-
tiate as to whether the employer may deal with another union in disregard of the
certification.
Leaving the 8 (a) (5) issue for a moment , and considering the 8 ( a) (3) aspect
of the case , we have a situation where the Steelworkers has caused the Company
to remove mounting work from the patternmakers . The record establishes that the
patternmakers , exclusively and traditionally , have performed this work , even dur-
ing the period while the Steelworkers represented the patternmakers as part of the
plantwide unit and even after the Steelworkers and the Company had negotiated
the "paper" job classification for the function . It was only when the patternmakers
designated the Pattern Makers to represent them that the Steelworkers suddenly
bestirs itself and causes the Company-over the Company 's objections-to remove
the work from the patternmakers and Pattern Makers' members and to reassign it to
a Steelworkers ' member who is employed within the Steelworkers ' bargaining unit.
It seems clear , within the factual context present here , that the Steelworkers ' obvious
motive was one of reprisal against the patternmakers for voting out the Steelworkers
and instead selecting the Pattern Makers as their bargaining representative By
acceding to the Steelworkers ' pressures to reassign the mounting work for the reason
found, I conclude that the Company thereby encouraged membership in the Steel-
workers and discouraged membership in the Pattern Makers in violation of Section
8 (a) (3) and ( 1) of the Act See Radio Officers v. N. L R. B., 347 U. S. 17, 42-46;
Bickford Shoes, Inc., 109 NLRB 1346; Utley Co. v. N L. R. B. , 217 F. 2d 885 (C. A.
6), and cases cited therein.
Calling attention to the aforestated management clause in the Pattern Makers'
contract and asserting , in addition , that "the assignment of work among different
employees is a management prerogative and is not a subject of bargaining," the
Company further contends , in connection with both the 8 ( a) (3) and (5) issues, that
the Company did not violate these sections of the Act because the Pattern Makers
did not resort to its contract grievance machinery and because the Company also
invited the Pattern Makers to participate in the Steelworkers ' arbitration proceeding.
The Company cites McDonnell Aircraft Corp., 109 NLRB 930.
In the McDonnell Aircraft case the employer , for nondiscriminatory business
reasons, unilaterally transferred certain work from employees within a bargaining
unit to unrepresented employees outside the unit. In dismissing an 8 (a ) ( 5) allega-
FLORENCE PIPE FOUNDRY & MACHINE CO. 967
tion the Board held that the employer satisfied its bargaining obligation by treat-
ing the union 's complaint about reassignment of work as a grievance under appli-
cable contract provisions and by otherwise evincing a willingness to arbitrate the
matter. However, the Board distinguished the case from the "usual" situation of
unlawful unilateral action which , inter alia , "undermines the authority of the bar-
gaining representative " The McDonnell case is thus clearly distinguishable from
the instant matter, for the Company took the action under consideration here, not for
economic reasons unrelated to considerations of union membership or union repre-
sentation , but because of the strike threat and other urgings of the rival Steelworkers'
union. The management clause cannot immunize an employer for conduct which
is otherwise unlawful-indeed , the clause itself limits such application ; and the
failure of the Pattern Makers to resort to its grievance procedure and the possibility
that the Company might have to defend an enforcement action on the arbitration
award similarly are no defenses here. National Licorice Co v. N. L R B, 309
U. S. 350, 365 ; N. L. R. B. v. Newark Morning Ledger Co, 120 F. 2d 262, at 266
(on rehearing ) (C. A. 3), cert. denied 314 U. S. 693 ; N. L. R. B. v. Walt Disney
Productions, 146 F. 2d 44 , 47-49 ( C. A. 9), cert. denied 324 U. S. 877 ; Hamilton-
Scheu & Walsh Shoe Co., 80 NLRB 1496, 1497; Dant & Russell, Ltd ., 92 NLRB 307,
312, 207 F. 2d 165 (C. A. 9 ), 344 U. S 375
The Steelworkers has filed a scholarly brief analyzing the legislative history of
the Act and some of the Board 's leading decisions under Section 8 (b) (1) (A) and
(2) of the Act . This analysis supports the Steelworkers ' contention , so the Steel-
workers asserts , that it has not violated the Act as the complaint alleges But the
premise underlying the Steelworkers ' entire argument , and which I have rejected, is
that the pattern mounting function is within its certification and outside the Pattern
Makers ' certification as statutory bargaining representative.
The gravamen of the Steelworkers ' conduct is not that the Steelworkers caused or
attempted to cause the Company to violate Section 8 (a) (5) as to the Pattern
Makers. Cf . Miami Copper Company, 92 NLRB 322, 324 . Rather, what the Steel-
workers has done in this matter, as I have already found , is attempt to cause and
actually cause the Company to discriminate against the patternmakers by taking
pattern mounting work from them in reprisal for their selection of the Pattern
Makers and their rejection of the Steelworkers . Clearly , even within the principles
enunciated in cases cited by the Steelworkers , this conduct by the Steelworkers
violates Section 8 (b) (1) (A) and ( 2) of the Act by threats of, and conduct ac-
complishing , economic reprisal against a particular group of individuals. E g.,
National Maritime Union of America ( Texas Company ), 78 NLRB 971 , 978, 985-
986; Perry -Norvell Company , 80 NLRB 225 , 239. See , also the Radio Officers, at
pp. 32, 42, and Utley cases , supra ; Fox Midwest Amusement Corp., 98 NLRB 699,
719 Cf. Salt River Valley Water Users' Assn v. N. L R . B , 206 F. 2d 325 (C. A. 9).
CONCLUSIONS OF LAW
I The Company has violated and is violating Section 8 ( a) (1), (3), and (5)
and Section 2 (6) and ( 7) of the Act
2. The Steelworkers has violated and is violating Section 8 (b) (1) (A) and
( 2) and Section 2 (6) and ( 7) of the Act.
III. THE REMEDY
I shall recommend that each of the Respondents cease and desist from the unfair
labor practices found , and I shall also recommend such affirmative relief as I consider
necessary to effectuate the policies of the Act , including the restoration of pattern
mounting work to the pattern mounters This does not mean, of course , that the
Company may not make whatever work assignments it chooses for nondiscriminatory
reasons; it does mean that it may not take such action for reasons relating to union
membership or to the exercise of other rights of employees guaranteed by Section 7
of the Act , including the right to refrain from such membership and other activities.
The record shows that no patternmaker has lost his job or even any wages as a
result of the reassignment of pattern mounting , although the wage item must be
speculative . If permitted to go unremedied , however , such discrimination as occurred
here would take on greater significance in a changing economic situation. Radio
Officers v N L. R B, supra , at pp. 38, 54-55.
[Recommendations omitted from publication.]