International Die Sinkers Conference

National Labor Relations Board - Board Decisions

May 29, 1958

120 N.L.R.B. 1227 (N.L.R.B. 1958)

INTERNATIONAL DIE SINKERS CONFERENCE 1227
rites would have issued against the Union if Bennett had availed himself of the
privilege attaching to his former membership and filed his withdrawal card within
the stipulated period. But because he did not take advantage of that privilege we
are asked to find a violation. And yet, were we to adopt the rationale of the General
Counsel, had Bennett availed himself of the privilege attaching to his withdrawal
card by filing it together with a $2 fee within the 5-day period, Adel employees not
holding withdrawal cards might complain, with as much merit as is encountered here,
that they were discriminated against because they were required to pay a $10 initiation
fee instead of the $2 fee required of Bennett.
It appears to me that if a union may as a standard nondiscriminatory practice
advantage its former members in obtaining reinstatement over new members, it may
also disadvantage these same former members if they do not avail themselves of
their privilege within a stipulated period of time. And while it cannot be denied
that in a sense Bennett was penalized for refraining from revitalizing his union
affiliation during a period when he had a right to refrain from union affiliation, such
a penalty-if it be regarded as such-stemmed solely from fee differentials based on
classifications of new and former members, and such differentials the Board in Food
Machinery found lawful. The penalty did not therefore arise from a lack of uni-
formity in dues requirements, and the Union's demand for Bennett's discharge was
not based on his failure or refusal to reinstate his membership in the Union during
a period when he was free to refrain from union affiliation. Neither was Bennett
restrained and coerced in his right to refrain from union affiliation during the first
31 days of his employment by Adel because he chose not to take advantage of a
privilege accruing to him by virtue of his former affiliation with the Union and the
fact that he held an honorary withdrawal card.
Unable as I am to find a material distinction between this case and Food Machinery,
I consider myself bound by the Board's decision in that case and, accordingly, must
recommend dismissal of the complaint.'
Upon the basis of the foregoing findings of fact and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The operations of the Employer occur in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. The Respondent Union is a labor organization within the meaning of Section
2 (5) of the Act.
3. The Respondent Union has not engaged in unfair labor practices as alleged in
the complaint, within the meaning of Section 8 (b) (1) (A) and (2) of the Act.
[Recommendations omitted from publication.]
1 The Board's decision in Newspaper Guild, cited by the General Counsel, does not, in
my opinion, in any way modify or illuminate its decision in Food Machinery.
International Die Sinkers Conference , San Jacinto Die Sinkers
Lodge #410; International Die Sinkers Conference ; and Lodge
12, District 37, International Association of Machinists, AFL-
CIO and General Metals Corporation . Case No. 39-CC-37.
May 29, 1958
DECISION AND ORDER
On January 9, 1958, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above -entitled case, finding that the Re-
spondents had not engaged in and were not engaging in the alleged
unfair labor practices within the meaning of Section 8 (b) (4) (A)
of the Act and recommending that the complaint be dismissed, as set
forth in the copy of the Intermediate Report attached hereto. There-
120 NLRB No. 160.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after, the Charging Party filed exceptions to the Intermediate Report
and a brief.
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 brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent consistent herewith.
The facts disclose that on or about May 6,1957, the Charging Party
agreed to help out Cameron Iron Works by performing certain op-
erations on a die Cameron was making for a customer. The Charging
Party knew at the time it undertook this work that Cameron would
normally have performed the operations itself but for the effects of
a strike against it by the IAM-a strike which the Charging Party
does not attack as unlawful. The IDSC, as representative of the em-
ployees of the Charging Party, thereupon induced and encouraged
them to refuse to perform any operations on the Cameron die, with
an object of forcing or requiring the Charging Party to cease handling
the product of Cameron and to cease doing business with Cameron.
When the Charging Party discharged an employee for refusing to
do such work, the IDSC engaged in a strike against the Charging
Party, accompanied by picketing of the plant involved. At the same
time the IAM also picketed the plant, with picket signs stating that
the IAM's dispute was with Cameron and that the IAM was not seek-
ing to induce a strike by the employees of any other employer. The
IDSC subsequently advised the Charging Party that it would termi-
nate the strike and return to work only if the Charging Party agreed
not to require its employees to work on the Cameron die.
We agree with the Trial Examiner's conclusion that it was per-
missible primary activity for the IAM to picket the involved plant
of the Charging Party while that plant was the situs of the farmed-
out or struck work which the Charging Party was knowingly per-
forming for another employer (Cameron). We note that the IAM's
picket signs clearly indicated that the Charging Party had involved
itself in the labor dispute with Cameron, and that the IAM's appeal
was not directed to employees of any other employer. We distinguish
the present situation from "hot cargo" cases involving work com-
pleted by the primary employer and thus no longer involved in the
labor dispute. We find, for the reasons set forth in the Intermediate
Report and on the basis of the judicial authority cited in footnote 9,
that the Charging Party here, by knowingly doing the primary em-
ployer's farmed-out struck work, in effect engaged in strikebreaking,
stripped itself of neutrality and unconcern with respect to the labor
dispute, and allied itself with the primary employer and against the
-TAM. We further find that the Charging Party thereby removed
INTERNATIONAL DIE SINKERS CONFERENCE 1229
itself from the protection bestowed by Section 8 (b) (4) (A) on
innocent secondary employers having no interest or concern in the
labor dispute.
Because of the involvement of the Charging Party in the primary
-dispute between the IAM and Cameron, we agree with the Trial
Examiner's further conclusion that the IDSC, -as the statutory repre-
sentative of the Charging Party's employees, did not violate Sec-
tion 8 (b) (4) (A) by inducing those employees to refuse to work
on the farmed-out strike-bound die. We do not reach the argument of
the Charging Party that to hold the IDSC's conduct lawful in this
case would make the Charging Party "fair game" for any and all
-other labor organizations who for any reason wanted to picket it or
otherwise obstruct its operations. Here, we note, the IDSC had a
legitimate interest by reason of its status as the statutory represent-
ative of the employees whom the Charging Party sought to involve
as strikebreakers. As the Supreme Court said in N. L. R. B. v. Truck
Drivers Local Union No. 449 International Brotherhood of Team-
sters, etc. (Buffalo Linen Supply Co.), 353 U. S. 87, 96, the protection
afforded by the Act "is not so absolute as to deny self-help : . . when
legitimate interests of employees and employers collide.... The
ultimate problem is the balancing of the conflicting legitimate
interests."
Accordingly, we agree with the Trial Examiner that the Respond-
ents did not engage in the alleged violations of Section 8 (b) (4) (A)
,of the Act.
[The Board dismissed the complaint.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed May 21 , 1957, and thereafter amended on May 30 and June
24, 1957, by H. W. Schmid as plant manager and vice president of General Metals
Corporation , herein called the Charging Party or General Metals, the General
Counsel of the National Labor Relations Board , herein called the General Counsel i
and the Board , respectively , by the Acting Regional Director for the Sixteenth
Region (Fort Worth, Texas), issued a complaint dated June 25, 1957, against
International Die Sinkers Conference , San Jacinto Die Sinkers Lodge #410; Inter-
national Die Sinkers Conference (hereinafter called IDSC, Die Sinkers , or Lodge
410); and Lodge 12, District 37, International Association of Machinists , AFL-CIO
(herein called IAM or Machinists ). The complaint alleged that the Respondents
had engaged in and were engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and (7) of the
Labor Management Relations Act, 1947, 61 Stat . 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleged that : On April
29, 1957, the employees of Cameron Iron Works , represented by IAM , went on
'This term specifically includes the attorney appearing for the General Counsel at the
hearing.
e
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike over a wage issue; on or about May 13, 1957, IDSC officers induced, encour-
aged, and instructed the officers of Lodge 410 not to sink a die received by
General Metals on or about May 6 from the Cameron Iron Works; on or about
May 17, Die Sinker employee James McGuire refused to sink said die and was
thereupon-'discharged by General Metals; following the discharge of McGuire,
Lodge 410, the representative of the employees of General Metals, went on strike
until May 27; Lodge 410 and IAM picketed the premises of General Metals from
May 20 to May 23, 1957, an object and purpose of the instructions, encouragement,
and inducement and of the striking and picketing being to force or require General
Metals to cease using, selling, handling, or otherwise dealing in the products of
Cameron Iron Works and to cease doing business with Cameron Iron Works in
violation of Section 8 (b) (4) (A) of the Act.
All the Respondents duly filed answers wherein they admitted some of the allega-
tions of the complaint but denied the commission of any unfair labor practices.
Pursuant to notice a hearing was held at Houston, Texas, on October 29 and
30, 1957, before the duly designated Trial Examiner. All parties were represented
by counsel and were afforded full opportunity to be heard, to examine and to
cross-examine witnesses, and to introduce evidence bearing upon the issues. At
the conclusion of oral argument held at the end of the hearing, the Trial Examiner
advised the parties of their right to file briefs, and findings of fact and conclusions
of law or both. Briefs were received from all parties on or about November
21, 1957.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. COMMERCE
General Metals Corporation is a corporation existing under and by virtue of the
laws of the State of California with its principal office and place of business located
at 220 Bush Tower, San Francisco, California. It is now and has been engaged in
the manufacture of diesel engines, hydraulic assemblies for aircrafts, die sinkings,
land forgings, and ^ operates plants located at Oakland, Vernon, and Hollydale,
California, and at Houston, Texas. The latter plant is the only one involved in
these proceedings.
At its Houston plant General Metals during the year 1956, which period is
representative of all times material herein, has purchased steel, alloys, metals, die
blocks, machinery, and equipment which was transported to its Houston, Texas,
plant from points outside the State of Texas. During the same period it has sunk
dies and made forgings valued at more than $50,000 which were sold, shipped,
and transported from its Houston plant to points outside the State of Texas.
The Trial Examiner finds that General Metals is engaged in commerce within
the meaning of the Act.
No testimony on commerce was adduced as to Cameron Iron Works.
II. THE UNIONS INVOLVED
Respondent Lodge 410, Respondent IDSC, and Respondent IAM are unincorpo-
rated associations and are labor organizations within the meaning of Section 2 (5)
of the Act.
Lodge 410 has its principal office and place of business in Houston, Texas, and
is engaged within this locality in promoting and protecting the interests of its
employee members, and in transacting business. Respondent IDSC has its principal
office and place of business at Cleveland, Ohio, and is engaged throughout the
United States in promoting and protecting the interests of its employee members,
and in transacting business.
Respondent IAM has its principal office and place of business at Houston, Texas,
and is engaged within this locality in promoting, protecting the interests of its em-
ployee members and in transacting business. .
III. THE UNFAIR, LABOR PRACTICES
A. The facts
In Houston, Texas, Cameron Iron Works and General Metals Corporation, two
separate and distinct corporate entities, are each engaged in the manufacture and
sale of forgings. In the manufacturing of forgings both companies operate die shops
'INTERNATIONAL DIE SINKERS CONFERENCE 1231
where dies are "sunk," i. e., blocks of steel are hollowed out to the shape desired
for the end product, and forge shops where these dies placed in hammers shape
molten metal into the desired form. Forgings are the end product resulting from
these two operations. General Metals sells these forgings to customers who integrate
them into products of their own, whereas Cameron apparently integrates its own
forgings into various and sundry more complicated machinery for use by the oil
industry.
Cameron and General Metals each have separate labor agreements covering their
employees in the die shop and those in the forge shop. At Cameron the die shop
employees are represented by IAM while the record is silent as to which union
represents the employees in the Cameron forge shop. On the other hand General
Metals has a contract with IDSC covering the employees of its die shop and a contract
with the United Mine Workers covering the employees of its forge shop.
The contract between General Metals and IDSC contained a no-strike clause and
a grievance procedure consisting of three steps.
The 1957 IAM-Cameron agreement covering the Cameron diesinkers provided
for an opener for the negotiation of wages only. Apparently these reopened wage
negotiations between Cameron and IAM reached an impasse with the result that
on or about April 29, 1957,2 the Cameron die shop employees went on strike to
enforce the IAM economic demands. It is admitted that this was a legal economic
strike by IAM. The Cameron forge shop employees did not join the strike but
continued working.
At the time the strike of the Cameron diesinkers began, a die, known in this record
as the Cameron die or die No. 67081, was left in the Cameron die shop in a state
of partial completion. At that time the "hold down holes" had been bored in the
blocks. The blocks had been shanked to fit the Cameron hammers and, although
there is some doubt about this, the blocks apparently had been edged. But the
blocks had not been sunk, i. e., the pattern had not been hollowed out of the steel
blocks. It is admitted that the blocks would have been sunk and completed by the
Cameron diesinkers except for the intervention of the IAM strike at Cameron.
On or about May 6, Cameron by telephone told General Metals that Cameron
had a Government job which it "had" to produce but that Cameron diemakers were
on strike and inquired whether General Metals could sink these dies for it. Cameron
also added that it was quite possible that in the future Cameron would require a
great deal of forgings from General Metals for Cameron's own parts. As the last
business General Metals had had with Cameron was in the year 1952, this sugges-
tion of possible future business interested both General Metals Plant Manager
Schmid and its District Sales Representative Taylor.3 They decided to "help
Cameron out" by sinking die No. 67081.
During this telephone conversation the dimensions of the partially completed die
blocks had been given so Taylor checked these dimensions with Tony Winkler, a
General Metals diesinker employee. This check disclosed that the die blocks were
too high for the General Metals machines so that the blocks would have to be re-
shanked before General Metals could sink the die. When Taylor mentioned that
the die blocks were from Cameron, Winkler told him that "we can't sink that die."
However, General Metals gave Cameron an estimate for the completion of the
dies. On or about May 6 Cameron sent General Metals a purchase order in the
amount of $750 for "Labor to sink die No. 67081.1'4 And on the same day Cameron
had these die blocks shipped from its plant into that of General Metals where said
dies were destined to rest, untouched, until returned to Cameron on or about June 6.
On May 16, having heard rumors that there was going to be trouble over the
sinking of these Cameron dies, Plant Superintendent Arthur called in the IDSC
shop committee, in order to ascertain the truth of the rumors. Ira Franklin, presi-
dent of Lodge 410, admitted that Lodge 410 had instructions from IDSC President
Joe Meiner that the diesinkers were not to sink the Cameron die as Cameron was on
strike. When Arthur argued that the employees would be refusing to do General
Metals work, rather than Cameron work, Committee Member Przybyla answered
that General Metals was not going to make the forgings from the dies and that the
s All dates herein are in the year 1957 unless otherwise specified
3In his brief General Counsel refers to Cameron as "a sometimes customer" of General
Metals
`Although this order on its face obviously did not entail the manufacture of any forg-
ings, Schmid testified that General Metals "always" had the refusal of making the forg-
mngs from these dies. However, Taylor indicated that from a financial point of view
General Metals had little, if any, interest in the making of the forgings as the Cameron
Government order was for only 25.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dies constituted "struck work" as they came from a strike-bound plant. Although
not denying Przybyla's statement , Arthur indicated that any employee who refused
to work on the Cameron dies would have to be discharged.
On Friday, May 17, having completed his prior assignment, diesinker McGuire
requested a new assignment . Cameron die shop Foreman Hopkins assigned McGuire
to the job of sinking the Cameron dies. McGuire refused the assignment on the
ground that Cameron was on strike and that he would be barred from every union
shop in the country if he did struck work. Hopkins threatened McGuire with dis-
charge if he persisted in that refusal. At McGuire's request the IDSC shop com-
mittee was brought in. Lodge President Franklin reiterated that IDSC President
Meiner had given orders not to sink the Cameron dies and, therefore, refused to
grant McGuire permission to sink the die. Hopkins thereupon discharged McGuire
who then refused to sign the discharge forms. The shop committee immediately
called the diesinkers in the plant out for a short meeting but returned in 10 minutes
to inform Hopkins that IDSC was calling a special meeting of both shifts of die-
sinkers outside the plant. Hopkins objected that under the contract IDSC had no
right to call such a meeting or to go on strike. However, the diesinkers washed up,
punched out, and left the plant, not to return until May 27.
On Monday, May 20, the General Metals plant was picketed by IDSC pickets
carrying placards reading: "Unfair Labor Practice against IDSC Local 410" and
by IAM pickets 5 carrying signs worded as follows:
Lodge No. 12, I. A. of M. in Dispute with Cameron Iron Works. Machinists
No. 12 by this picket line does not seek to induce or encourage employees of
any other employer to engage in a strike or work stoppage or concerted
refusal to work.
Between May 20 and 23 numerous meetings and telephone calls occurred between
officials of General Metals and Joe Meiner or Ed Watt, international officers of
IDSC. These were so repetitious as not to require detailed findings here. Suffice
it to say that these IDSC officials acknowledged that IDSC had instructed Lodge
410 not to sink the Cameron die as that was "struck work," that IDSC members
were not to do struck work, and that the International had sanctioned the strike
of Lodge 410. Both IDSC and Lodge 410 agreed to return to work regardless
of the existence of an JAM picket line if employee McGuire were reinstated with
back pay and the diesinkers were not required to do struck work. On the other
hand General Metals maintained throughout that (1) the strike was an unlawful
secondary boycott in violation of the Act, (2) the strike and the picketing were
in violation of the no-strike clause of the contract, and (3) they were in disregard
of the grievance procedure. General Metals did offer to reinstate McGuire without
back pay if he would sink the Cameron dies. Both sides remained adamant and,
therefore, reached no mutual settlement.
The IDSC and IAM pickets remained around the General Metals plant from
Monday, May 20, until sometime Thursday, May 24, when both organizations
withdrew their pickets. There has been no picketing by either organization since
that time.
Although no settlement of the dispute was reached between General Metals and
-IDSC or Lodge 410, on Monday, May 27, the General Metals diesinkers, except
McGuire, returned to the plant, punched in, and began working. They have been
working steadily at the General Metals plant ever since.
On June 6 General Metals shipped the Cameron die, still untouched, back to
Cameron.
An on July 1 McGuire was reinstated by General Metals without back pay and
:has been steadily employed ever since.
B. Conclusions
It is now well-settled law that a labor organization violates Section 8 (b) (4) (A)
of the Act when it induces or encourages employees to engage in a secondary
boycott, an object of which is to cause the employer to cease doing business with
some other person.
5IAM contended at the hearing that there was no proof that these pickets were IAM
- It seems a fair inference that signs bearing the IAM name are carried by JAM pickets.
If, in fact, the pickets carrying such signs were interlopers, it would seem that the burden
of so proving would shift to the IAM. Consequently the Trial Examiner makes the above
finding.
INTERNATIONAL DIE SINKERS CONFERENCE , 1233
Charging Party General Metals and the General Counsel are in agreement that
under the undisputed facts of the instant case both IDSC and IAM clearly violated
that section of the Act. But each of them has his own individual theory as to how
Section 8 (b) (4) (A) was violated.
1. The Charging Party's theory
The Charging Party's position is simple and direct. At the hearing and in its
brief the Charging Party argued that the violation "is answered by the language of
Section 8 (b) (4) (A),,itself" and that "it is not necessary to go beyond the bare
language of the statute to determine that the respondents have each and all com-
mitted violations of it." In other words, the Charging Party argues for an absolutely
literal reading of the Act. It is quite true that such a literal interpretation of the
Act does indicate violations of the Act. But the problem is not quite that simple.
Such an interpretation of this section would outlaw all the strikes, primary as
well as secondary. Such an interpretation would nullify Section 13 of the Act
which guarantees to the employees the right to strike. In addition the congressional
debates make it very plain that in passing Section 8 (b) (4) (A) Congress only
intended to outlaw secondary boycotts in order to protect innocent, neutral third
party employers.
Immediately upon the passage of the present Act and universally ever since, the
Board and the courts have held in conformity with such congressional intent that
Section 8 (b) (4) (A) could not be interpreted absolutely literally as the Charging
Party would have us do here. Obviously, therefore, the problem is more complex
than the Charging Party appears to believe.
2. The General Counsel's theories
On the other hand, the General Counsel in his statement at the hearing and in his
brief has advanced both complex and prolix theories in order to prove violations
of this section by each Respondent here. Some of these became sufficiently complex
and intricate as to cause learned counsel for IDSC to comment, with some justification,
as to them: "Which frankly we do not understand."
In creating his case against IDSC, General Counsel appears to argue:
1. The IAM strike against Cameron was the primary strike. That of IDSC
against General Metals was a secondary strike. Chronologically, at least, the
General Counsel is correct.
As a corollary to this, both the Charging Party and the General Counsel concede,
for the purposes of this case, that the IAM strike was a legal strike against Cameron
over economic issues.
2. IDSC and Lodge 410 officials, the so-called secondary unions, induced IDSC
employees at General Metals to strike by instructing them not to do "struck work,"
i. e., not to sink Cameron die No. 67081, which both the Charging Party and the
General Counsel acknowledge constituted "struck work," i. e., work which would
have been completed at Cameron but for the IAM strike.6
As a corollary, the Charging Party and the General Counsel also concede-nay,
they insist-that IAM, which may be referred to here as the "primary union" having
been involved in what the General Counsel refers to as "the primary dispute," did
not induce or encourage the employees of General Metals to strike. This insistence
becomes most important in the General Counsel's case against IAM because there
he appears also to concede that IAM may well have had the right to follow the
struck work from Cameron to the General Metals plant and to have picketed that
plant while the struck work rested therein.
The fact that the General Counsel insists that the illegal inducement came from
IDSC and Lodge 410, the secondary unions here according to this argument, and
not from IAM, the primary union, which in the normal secondary boycott case is
the party most interested in enlarging the area of dispute by inducing the secondary
employees, gives one pause in considering which strike was in fact primary and
which secondary.
3. The final step in this argument, which is fully justified by the facts, is that "an
object" of the IDSC strike at General Metals was to cause General Metals to cease
doing struck work for Cameron or, as the General Counsel phrases it, to cause
O These and all the other concessions made by the Charging Party and the General
Counsel in this case were justified and required by the undisputed facts.
483142-59-vol. 120-79
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Metals to cease doing business with Cameron. And with this the General
Counsel figuratively wrote "Q. E. D." to his case against IDSC and Lodge 410.
In making this case against IAM, the General Counsel theorized as follows:
1. IAM did not induce or encourage the employees of General Metals to strike.
This is fundamental to the argument of the General Counsel because he has
conceded that the IAM strike against Cameron was a legal strike and that IAM
may well have had the right to follow the struck work die to the General Metals
-plant and to have picketed that plant so long as that die was in the plant. If this is
so, then perhaps the inducement by picketing would also be legal. Hence the
General's insistence that IAM did not engage in inducement or encouragement.
2. IAM is guilty of having violated Section 8 (b) (4) (A) by a form of "guilt
by association."
As IAM did not picket the General Metals plant for the entire period the struck
Cameron die rested therein, which perhaps IAM might lawfully have done, but
instead picketed only a few days simultaneously with the IDSC pickets beginning
a day or so after the IDSC strike had come into existence and ending weeks before
the struck die was returned to Cameron, the General Counsel argues:
Respondent Machinists were not engaging in its strike [against Cameron]
before the premises of General Metals nearly as much as they were aiding,
supporting, adopting and ratifying the [illegal] action of the Die Sinkers'
Respondents in their strike against General Metals.
Thus, the argument goes, as a "co-sponsor, a conspirator, a joint venturer" with
IDSC due to their simultaneous picketing, IAM became "jointly responsible for the
actions of the D:e Sinkers' Respondents, including their proscribed objective " So
the primary union, by associating on the picket line of the secondary union before
the plant of the secondary employer, became infected through that association
with the heretofore proven illegalities of the secondary union. With that General
Counsel again figuratively adds "Q. E. D." to his case against IAM.
This ingenuous argument raises the question of the inducement If one thing
is certain here on the facts and from the concessions of the parties, it is that IAM,
the primary union, did not induce or seek to induce an extension of the area of the
conflict of the primary dispute by encouraging a strike at General Metals. In the
normal, classical Section 8 (b) (4) (A) situation it is the primary union which
seeks to extend the area of the original conflict by inducing the secondary union
to strike its employer in order to bring pressure against the primary employer-but
not so here.
In the instant case, according to this argument, IDSC and Lodge 410, the secondary
union, induced its members, the employees of General Metals, the secondary
employer, to strike But the facts reveal as to this that it was the General Metals
employees who telephoned IDSC headquarters in Cleveland seeking advice as to
whether they had to do struck work under the IDSC-General Metals contract In
response to this request for advice these employees were advised by both IDSC
and Lodge 410 that that contract did not require them to work on struck work,
that IDSC instructed them not to do such work, and that IDSC would sanction a
strike in the event General Metals insisted upon doing such struck work. Thus
the General Metals employees in effect inquired of themselves as an integral part
of Lodge 410 and IDSC for an explanation of their rights under their contract with
General Metals to refuse to do struck work. General Counsel refers to the
resulting explanation of rights under this contract thus sought by the employees
as "inducement." If the General Counsel's theory is accepted here, then anytime
a union advises its members as to their rights under a contract and a primary strike
results therefrom, that union is guilty of having violated Section 8 (b) (4) (A).
In other words, the General Counsel has reached the same result by more devious
means as did the Charging Party with its literal interpretation argument.
However, the Board and the courts are still on record to the effect that Section
8 (b) (4) (A) does not outlaw primary strikes, a position which the present General
Counsel recognized on December 17, 1957, in a speech before the Bar Association
of New York City.7
This theory also fails to show any inducement by Lodge 410 or IDSC of anybody
other than its own members. There is no claim made that IDSC or Lodge 410
induced or attempted to induce IAM or the employees of Cameron. IAM, the so-
4 See address by Jerome D Fenton, General Counsel of the National Labor Relations
Board, before section on Labor Law of the Association of the Bar of the City of New
York delivered on Decembei 17, 1957
INTERNATIONAL DIE SINKERS CONFERENCE 1235
called primary union, becomes theoretically guilty of a violation by reason of having
associated on the picket line with the "guilty" IDSC, even though the General Counsel
concedes that IAM might well have had the legal right to follow that Cameron die
if it had picketed at all times the die was at General Metals plant. So here we have
the primary union infected through guilt by association with the allegedly illegal
inducement by the secondary union of its own members. This theory at least has
the asset of flexibility in handling the primary and secondary parties. In fact this
extreme flexibility practically requires a revision of the definiton of secondary boycott
in order to be applicable to this case. The guilt by association theory has been uti-
lized for many nefarious purposes in the past but never, to the knowledge of this Trial
Examiner, in a Board case.
Other than the fact that die No. 67081 happened to become struck work by reason
of the prior IAM strike at Cameron, there seems to be no reason to refer to the IAM
strike as primary or the IDSC strike as secondary. The two strikes were completely
independent one from the other. The IAM strike was caused by an impasse reached
in wage negotiations with Cameron. The IDSC strike was caused by a difference
of opinion on contract interpretation with General Metals: whether the contract
required General Metals employees to do struck work. While the IAM strike was
first in point of time and, therefore, according to the General Counsel the primary
strike, we have to return once again to the fact that IAM did not induce, or seek to
induce, the strike at General Metals. Nor did IDSC induce, or seek to induce, the
employees at Cameron. Therefore neither created the other. Nor could either have
prolonged the other. Hence there is a total lack of any causal relationship between
these two separate strikes such as would justify calling one primary and the other
secondary. In the opinion of the Trial Examiner, each was an independent,
primary strike.
Both the Charging Party and the General Counsel premise their contentions that
IDSC violated Section 8 (b) (4) (A) upon the fact that IDSC violated the terms
of its contract with General Metals in two particulars. The Charging Party states
in its brief: "The Die Sinkers' strike was in violation of the collective bargaining
contract and of Section 8 (b) (4) (A)." The General Counsel's brief is replete
with statements to the effect that "the strike action [of IDSC] was taken in derogation
of the no-strike clause and in disregard of the grievance procedure of the contract"
and "if ever a contractual duty [to do struck work] was clear and recognized by
all parties, it was true of this case." Perhaps IDSC did breach its contract with
General Metals. But a breach of a collective-bargaining agreement is not an unfair
labor practice nor is the Board the forum in which to try breach of contract actions.8
The dispute at General Metals was a primary dispute over the interpretation of the
General Metals contract with IDSC. This primary dispute over struck work was
unconnected to or with the IAM strike at Cameron in any way, shape, or form
except for the pure happenstance that the struck work about which the dispute cen-
tered happened to come from the Cameron plant. Struck work from any other
plant could have resulted in the same dispute at General Metals as it is clear that
IAM did not seek the assistance of IDSC and IDSC had no desire or intention of
assisting IAM by striking at General Metals because IDSC was at all times willing
to return to work despite the existence of an IAM picket line at General Metals.
And that brings us to the argument of the Respondents.
C. The Respondents' argument
Respondents argue that General Metals lost its neutrality by making itself into
an ally of the primary employer, Cameron, and thereby lost the protection of Section
8 (b) (4) (A).
There can be no question from the congressional debates that Section 8 (b) (4)
(A) was included in the Act for the purpose of protecting innocent, neutral third
party employers from becoming enmeshed in the economic disputes of primary
parties through no fault of their own and from which these neutral employers could
not extricate themselves through their own efforts The courts have always inter-
8 "The Senate Amendment contained a provision which does not appear in Section 8
of existing law This provision would have made it an unfair labor practice to violate
the terms of a collective bargaining agreement. The conterence agreement omits
this provision of the Senate Amendment Once parties have made a collective bargaining
contract the enforcement of that contract should be left to the usual processes of the law
and not to the National Labor Relations Board " House Conference No 510 on 11 R 3020
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preted Section 8 (b) (4) (A) in accordance with that congressional intent.9 Very
recently the Board again unanimously reaffirmed this same principle although the
dissenting member in that decision did so in a footnote.'°
Congress sought to protect such neutral third party employers from 'becoming
enmeshed in the primary dispute by limiting the area economic conflict to the primary
parties by making it an unfair labor practice for a labor organization to attempt to
extend that area through inducing or encouraging employees of other employers to
strike. At that time Congress apparently considered that labor organizations were
the worse offenders in extending the area of conflict through their picketing activities.
However, the congressional debates make it clear that only innocent, neutral
employers were intended to be the beneficiaries of the protection so devised.
However, the instant case again varies from the norm. In the instant case General
Metals, the so-called secondary employer who up to that point had absolutely nothing
to do with the primary dispute, was requested by the struck employer and agreed to
"help out" Cameron, the primary employer, by doing some work for that primary
employer. -
The Cameron order was not in the normal and usual course of business for General
Metals. This order was the first General Metals had had from Cameron in at least 5
years. And the only reason Cameron gave General Metals the order to work on
Cameron die No. 67081 on this occasion was that Cameron was unable to complete
the die itself because of the IAM strike at its plant although its Government contract
required the prompt completion of that die. General Metals knew full well that
JAM was on strike at Cameron and that the work it had been asked to do was
"struck work" which Cameron would have performed except for its own strike.
Despite this knowledge and despite a warning from its own employees that they
would not do struck work, General Metals deliberately decided to "help out" Cameron
in this instance for its own pecuniary benefit both in the struck work and in anticipated
future business from Cameron from whom it had had no business in the. past 5 years.
While not disputing the above facts, the General Counsel argues: "If this secondary
employer [General Metals] had knowledge of anything, it was that he had a safe
shop in which to take struck work and have it performed with the assurance of no
labor trouble because of the reliance upon this contract and the past performance of
his employees." In other words General Metals, according to the General Counsel,
figured that it could help out a fellow employer engaged in an economic dispute with
its employees for a profit to itself and without danger of labor troubles at its own
plant due to its contract with IDSC. However, on this occasion General Metals,
disregarding the warning it had had, miscalculated the reluctance of the American
working man to be made in effect into a strikebreaker. Therefore, by accepting for
a consideration, and attempting to force its employees to do struck work in order to
assist a struck employer in his economic conflict with his employees, General Metals
succeeded in extending the area of economic conflict beyond the original dispute
and to itself.
By knowingly and intentionally accepting Cameron's struck work for its own profit,
General Metals allied itself with the primary employer, shed its neutrality and
innocence, and, in effect, became a partisan disputant in the primary strike. By so
doing General Metals knowingly and intentionally removed itself from the class of
the employers Congress sought to protect by Section 8 (b) (4) (A) and thus stripped
itself of that protection.
General Counsel, on the other hand, argues that the only employees entitled to
claim the benefit of this "ally doctrine" are the employees of the primary employer
which, naturally under his theory, would eliminate IDSC and the employees of
General Metals from claiming this defense. He maintains that the Board has never
extended this doctrine to protect the'employees of the secondary employer. Perhaps
he is right, so far as precedent is concerned, for the Trial Examiner has never before
seen a case where the primary and secondary unions got as twisted around as they do
under the theories advanced here by the General Counsel. Basically, this case is
between what General Counsel refers to as a secondary employer and a secondary
union . Universally, until now, the secondary boycott cases have been basically be-
tween the secondary employer and the primary union because, as noted heretofore, in
the usual case the primary union has induced the employees of the secondary
0 Douds v. Metropolitan Federation of Architects, etc (Project Engineering Company),
75 F. Supplement 672; N. L R. B. v. Bnsines4 Machine and Office Appliance Mechanics,
etc, Local 459 (Royal Typewriter Co.),,228 F 2d 553 (C A. 2)
10 J G. Roy and Sons Company, 118 NLRB 286
INTERNATIONAL DIE SINKERS CONFERENCE 1237
employer to strike in order to bring economic pressure against the primary, employer
in order to assist the primary union. But here the primary union did not induce or
encourage any extension of the primary dispute. The primary union is guilty, if at
all, only through association with the secondary union. Hence this may well be the
first case where the secondary union has pleaded and proved the ally doctrine.
The fundamental error of the General Counsel here is his failure to recognize that
Section 8 (b) (4) (A) was enacted for the benefit of a certain class of employer:
the innocent, neutral third party employers who have become enmeshed in the
economic conflicts of others through no fault of their own and from which they
cannot extricate themselves through their own efforts. None of this description
applies to General Metals once it had accepted the order to do struck work from
the primary dispute for its own pecuniary benefit and with full knowledge of the
primary dispute. General Metals was thereafter not neutral: it was the ally of the
primary employer. General Metals was no longer innocent: it deliberately entered
into the primary dispute. General Metals was no longer a third party: it intentionally
became an active participant in the primary dispute. General Metals did not become
enmeshed in the primary dispute through no fault of its own: it intentionally sought
to "help out" the primary employer by doing struck work for it for a consideration.
And, lastly, General Metals was not without ability through its own efforts to
extricate itself; it could have continued its normal course of business and refused
this special job to do struck work from the primary conflict. General Metals'
difficulties here were all attributable to the fact that it deserted its normal course of
business in order to do a special job in order to help out a strike-bound employer for
whom it had done no work for 5 years or more. Its troubles were of- its own
deliberate making. Congress did not intend in passing Section 8 (b) (4) (A) to
protect an employer who deliberately, intentionally, and with full knowledge of all
the facts chose for a consideration to assist a party to the primary dispute and thereby
to extend the area of economic conflict beyond the primary dispute.
It must also be noted here that the Charging Party not only allied itself with the
primary employer but also attempted to ally its own employees with that strike-
bound employer thus, in effect, using its employees to break the IAM strike for
Cameron.
When IDSC refused to permit its members to do struck work, the Charging Party
sought the assistance of the Board's processes in its efforts to force its own employees
to ally themselves also with the so-called primary employer in his struggle against
the primary union. If, under the circumstances of this case, the Congress intended
the processes of the Board to be used for such purpose, then there would seem to
have been some substance in the oft-repeated claim that the Act, as amended, was
a "slave labor act." The Trial Examiner does not believe that Congress so intended.
The Trial Examiner must hold that General Metals was not within the protection
of Section 8 (b) (4) (A) when it knowingly and for a consideration attempted to
do struck work which otherwise would have been done by the striking employees
of the primary employer, Cameron. Further the Trial Examiner must also find that
each of the strikes involved here was a primary dispute beyond the ambit of Section
8 (b) (4) (A). And finally the Trial Examiner must accordingly find that Section
8 (b) (4) (A) was not violated by IDSC, Lodge 410, IAM, or any of them,
individually or collectively.
Consequently the Trial Examiner will recommend that this case be dismissed
in its entirety.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Die Sinkers Conference, San Jacinto Die Sinkers Lodge #410;
International Die Sinkers Conference; and Lodge 12, District 37, International Asso-
ciation of Machinists , AFL-CIO, are labor organizations within the meaning of
Section 2 (5) of the Act.
2. General Metals Corporation is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
3. The aforementioned labor organizations, and each of them , have not engaged
in unfair labor practice within the meaning of the Act.
[Recommendations omitted from publication.]