Milwaukee Electric Tool Corp., 1135 (1962)

practices herein found and otherwise to effectuate the policies of the Act. Viewing, as I must, the Board's findings in its 10 (k) decision as a guide to the measure of relief required in this proceeding, I shall accordingly recommend that the order in this case require the Respondents to cease and desist from the commission of unfair labor practices of the kind here found, not only against the particular employers against whom the Respondents have been found in this report to have engaged in conduct violative of Section 8 (b) (4) (D), but against all employers in the Philadelphia area.

Some question has been raised as to whether a cease and desist order phrased in the statutory language might not under certain circumstances be misread to restrain legitimate strike or concerted activity not within the contemplated prohibition of Section 8 (b) (4) (D). Of course, nothing in the remedial order is to be interpreted as prohibiting the Respondents from engaging in strike or other activity of a kind construed by Board or court decisions to fall outside the proscription of that section. It is for that reason that the phrase, 'except insofar as such action is permitted under Section 8 (b) (4) (D),' has been added to the Order 30

Upon the basis of the foregoing findings of fact, and the entire record in this case, I make the following:

CONCLUSIONS OF LAW

1. The Respondents, Locals 420 and 428, both local unions of United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United ,States of America, affiliated with the American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of the Act.

2. By engaging in strikes and by inducing and encouraging employees of the employers listed in the marginal note 31 to engage in strikes or concerted refusals in the course of their employment to use, process, or otherwise handle or work on certain goods, articles, materials, or to perform services, in each instance with an object of forcing and requiring employers to assign certain rigging work to members of the Pipefitters, who had not been assigned and were not then lawfully entitled to such work, rather than to other employers who had been assigned to and were performing such work, the Respondent, Local 420, engaged in unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act.

3. By engaging in a strike and by inducing and encouraging the employees of Bowers Brothers Company to engage in a strike or a concerted refusal in the course of their employment to use, process, or otherwise handle or work on certain goods, articles, or materials, or to perform services, with an object of forcing or requiring Bowers Brothers Company to assign certain rigging work to members of the Pipefitters employed by Bowers, rather than to Frank W. Hake's employees who were members of the Riggers, the Respondent, Local 428, engaged in unfair labor practices within the meaning of Section 8 (b) (4) (D).

4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act.

   [Recommendations omitted from publication.] 80 See, e. g., the Board's order in United Marine Division, Local 533, at al., 107 NLRB 686, and footnote 8 thereof.

   al (a) Employees of C. E. Williames Company, Inc., and of Charles Benjamin Rigging Company, at the Byberry State Hospital job; (b) employees of Herman Goldner Co., Inc., and of Bolger-Parker Company, at the Rohm & Haas Company Bristol plant job ; (c) employees of York Corporation, at the Federal Reserve Bank Building job; (d) employees of York Corporation and of George Young Co., at the Horn & Hardart restaurant job ; and (e) employees of William H. Walters & Sons, Inc., and of Frank W. Hake, at the FidelityPhiladelphia Trust Building job.

   Milwaukee Electric Tool Corporation and Bernard J. Stempniewski and Local 1035, International Union of Electrical, Radio & Machine Workers, CIO. Cases Nos. 13-CA-1625 and 13-CA-1645.

   June 13,1955 DECISION AND ORDER

   On July 9, 1954, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the 112 NLRB No. 142.

   Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (5), (3), and (1) of the Act and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. On July 26, 1954, the Respondent filed exceptions to the Trial Examiner's Intermediate Report, the conclusions and findings therein, the recommended order, and rulings upon motions and objections made by the Trial Examiner at the hearing. Thereafter, the General Counsel and the Union filed motions requesting the Board to reopen the record in this proceeding and in Case No. 13-CA-1477, also involving this Respondent which the Board decided on November 23, 1954 (110 NLRB 977), and consolidate these cases with Case No. 13-CA-1865, in which a complaint was issued on December 13, 1954, against the Respondent in this proceeding. By order of April 5, 1955, the Board denied these motions.

   The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.

   The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions thereto, and the entire record in the case and finds merit in the Respondent's exceptions. The Board adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent they accord with its findings below.

1. The Board disagrees with the Trial Examiner's finding that the Respondent violated Section 8 (a) (5) of the Act. In a prior case,

   Case No. 13-CA-1477, the Respondent herein was charged with a violation of Section 8 (a) (5), the General Counsel contending that a complete and final contract was negotiated between the Respondent and the Union, which the Respondent refused to execute. He sought as a remedy that the Board order the Respondent to execute the contract. On November 30, 1953, the Trial Examiner in that case issued his Intermediate Report finding that the Respondent had engaged in and was engaging in certain unfair labor practices , that it had not acted in good faith in negotiations with the Union , and thereby violated Section 8 ( a) (5) of the Act. However, the Trial Examiner failed to adopt the General Counsel's theory of the case and to recommend that the Respondent be ordered to execute the contract, the relief sought by the General Counsel. Thereafter, the Respondent filed exceptions to the Intermediate Report and on January 15, 1954, the General Counsel also filed exceptions wherein he alleged that the Trial Examiner erred in failing to make the recommendation to the Board that the Respondent be ordered to execute the contract.

   The consolidated complaint in the instant proceeding charges the Respondent with violating Section 8 ( a) (5) of the Act on or after January 21, 1954, by refusing to meet with the Union for the purposes MILWAUKEE ELECTRIC TOOL CORPORATION . 1137 of collective bargaining and by taking unilateral action with respect to the working conditions of its employees. The record shows that during the period between the issuance of the Intermediate Report in Case No. 13-CA-1477 and the filing of exceptions to that report, the Respondent and the Union conferred by telephone and by mail concerning the scheduling of bargaining sessions. After exceptions were filed, however, the Respondent took the position, which it urges as a defense to the present 8 (a) (5) charge, that any obligation it might have had to bargain with the Union was suspended until such time as the issues pending before the Board in Case No. 13-CA-1477 had been determined with finality. In the circumstances of this case, the Board finds merit in the Respondent's position.

   Case No. 13-CA-1477, pending before the Board in January 1954, presented alternative theories as to the Respondent's obligation to bargain with the Union : (1) As the Trial Examiner found, that the Respondent had not engaged in good-faith bargaining and was under a duty to meet and negotiate with the Union in an attempt to reach an agreement, (2) as the General Counsel contended, that the Respondent had bargained to a final contract with the Union which it was under a duty to sign; and, (3) as the Respondent urged, that it had bargained in good faith to an impasse. Until the Board resolved the issue raised by the exceptions as to whether a bargaining contract in fact existed or whether the parties had reached an impasse, the nature of the Respondent's obligations under Section 8 (a) (5) was in doubt.

   Had the Board concluded that a contract had in fact been negotiated and should be signed by the Respondent, any negotiations for another contract which the Respondent and the Union might have conducted while the issue was awaiting Board determination, would have been futile. Inasmuch as the nature of the Respondent's duty to bargain during the period from January 15, 1954, when the General Counsel filed exceptions in Case No. 13-CA-1477, until November 23, 1954, when the Board dismissed the unfair labor practice charges in Case No. 13-CA-1477, was in doubt and awaiting clarification by the Board, the Board finds that the Respondent did not violate Section 8 (a) (5) during that period by refusing to negotiate with the Union.

   Member Peterson, in a mistaken construction of the majority view of the 8 (a) (5) issue, attempts to broaden the decision which the majority has made upon the exceptional facts of this case. Here the General Counsel in his exceptions to the Intermediate Report in the earlier complaint case urged not that the Board order the Respondent to bargain upon request but rather that the Board require the Respondent to sign the tentative agreement which had resulted from the negotiations of the...