Boeing Airplane Co.

BOEING AIRPLANE COMPANY 147 in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of, hp Act. 3. By interfering with , restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not engaged in any unfair labor practice by reason of the discharge of Ruby Harris and by reason of other conduct alleged in the complaint to have interfered with, restrained, and coerced his employees except insofar as such conduct has. been found hereinabove to have violated Section 8 (a) (1) of the Act. [Recommendations omitted from publication.] BOEING AIRPLANE COMPANY, SEATTLE DIVISION and SEATTLE PROFES- SION AL ENGINEERING EMPLOYEES ASSOCIATION. Ci ase No. 19-CA- 806. Septeinber 30,19541. Decision and Order On December 28, 1953, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the Respondent, the General Counsel, and the Union filed exceptions to the Intermediate Report and supporting briefs, and the Respondent and the Union requested oral argument. The requests for oral argument are hereby denied as the record and the exceptions and briefs, in our opinion, adequately present the issues and the contentions 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 In- termediate Report, the exceptions and briefs, and the entire record in this case, and, finding merit in certain of the General Counsel's and the Union's exceptions, hereby adopts only such of the Trial Examin- er's findings, conclusions, and recommendations as are consistent herewith.' 1. The Trial Examiner concluded that the union-sponsored Man- power Availability Conference was an unprotected activity, and that the Respondent was therefore privileged to discharge Pearson because of his participation therein. We do not agree. The material facts are substantially undisputed. Between April and`December 1952, the Union, which had represented the Respond- 1 The request of Engineers and Scientists of America for permission to submit a brief and to participate in oral argument is hereby denied as untimely filed. 2 For the reasons set forth in their separate dissenting opinion, Members Rodgers and Beeson would adopt the Trial Examiner 's recommendation that the complaint be dismissed. 110 NLRB No. 22. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's engineers since 1946, and the Respondent were negotiating for a new contract. By the latter date they had reached an impasse on the subjects inter alia of base salary rates and rate ranges. As a substitute for strike action in support of its demands, the Union attempted to organize the Manpower Availability Conference as a device for bring- ing together representatives of various employers who needed engi- neers, and engineers employed by the Respondent who desired or might desire to change employment. The stated purposes of the con- ference were to help such engineers obtain the best competitive offer, and possibly counteract the effect of the so-called gentlemen's agree- ment; 3 to help ascertain the true market price for engineers, for use in negotiations with the Respondent; and to put pressure on the Re- spondent by reducing the engineering services available to it. Pearson was selected by the Union to lead the organization and activation of the conference. On about January 15, 1953, under the Union's name and over Pear- son's signature as "Director Manpower Availability Service (Licensed and Bonded Employment Agent)," invitations to attend the confer- ence were sent to approximately 2,800 employers of engineers. The invitations stated that their purpose was to put employers of engineers in contact with employed union members who were dissatisfied with either their working conditions or their compensation, and were,there- fore available for new positions; the invitations pointed out that some of the Union's members were actively seeking new positions, while the interest of others would depend on the advantages to be gained from a change in employment. A copy of the invitation was sent to the Respondent, with a covering letter to Vice-President Logan, signed by the chairman of the Union's executive committee, advising him that the Union was conducting the conference and had retailed an agency to brings its members and prospective employers together. Logan was further advised that the purpose of the conference was to enable the union members to bargain for their services, and to obtain for the Union data as to the true market value for engineers. On January 27, 1953, Logan discharged Pearson because of his ac- tivities in connection with the Manpower Availability Conference. The Respondent's reasons, as presented to the Union, were in sub- stance that the conference was a deliberate plan to create a situation in which substantial numbers of engineers would leave the Respond- ent; such a situation would be very damaging to the Respondent, par 'The gentlemen's agreement was an agreement or understanding among the members of the Aircraft Industries Association , an association of approximately 80 companies in the aircraft manufacturing and related industries including the Respondent , that they would not inter alsa offer employment to any employee of a member of the Association with- out that member's express permission We reject the Respondent's contention that the evidence adduced with respect to the impact of the gentlemen 's agreement was inadmissable hearsay, and also reject its further contention that the impact of that agreement was not prop-11y in issue in the proceeding. BOEING AIRPLANE COMPANY 149 titularly in view of the existing shortage of engineers; Pearson's ac- tivities in connection with the conference were against the Respond- ent's best interests; and the Respondent was not required to continue paying it salary to an employee engaged in a program seriously dam- aging to it. The Union's efforts to activate the conference were unsuccessful, and Pearson was ultimately reinstated by the Respondent. The question presented by Pearson's discharge, in its context, is whether the Manpower Availability Conference, as a device for achieving the Union's lawful objectives, was a means entitled to the protection of the Act. In answering that question in the negative, the Trial Examiner weighed in the balance the worth of the objectives sought by the Union and the potentialities of damage to the Respond- ent and, finding the former outweighed by the latter, concluded that the Manpower Availability Conference ought to be characterized as indefensible and therefore unprotected. As authority for his ra- tionale, the Trial Examiner appears to have relied largely on the Jefferson Standard Broadcasting case.' Although that case involved conduct characterized as indefensible, neither that case nor any other case under the Act supports a rationale which weighs potential bene- fits against potential damage, and arrives at a result predicated upon a subjective value judgment. Such an approach, moreover, presents the obvious danger that decisions concerning the rights of employers and employees under the Act will be controlled by subjective feel- ings, rather than objective facts. Such a test we cannot accept. The answer to the question can, however, be found by reference to the many Board and court precedents establishing and delineating the rights and obligations of employers and employees in seeking to gain their legitimate economic objectives. The Manpower Availa- bility Conference was initiated to achieve two principal objectives- for purposes of mutual aid or protection, to secure other employment for those union members who desired to change employment, and pos- sibly to counteract the effect of the gentlemen's agreement,5 and for purposes of collective bargaining, to strengthen the Union's hand in its negotiations with the Respondent. No citation of specific cases is needed to establish that concerted activities for such purposes are presumptively lawful and protected. They do not lose their protec- tion merely because they are novel; nor do they lose their protection solely because they may result in financial loss to the employer against 4 Jefferson Standard Broadcasting Company, 94 NLRB 1507, 1611-1512 , affd sub nom Local Union No 1229, Intel national Brotherhood of Electrical Wo, kers v. N. L. R B , 346 U S 464. 475, et seq 5 Whether the gentlemen 's agreement in fact restricted the employment opportunities of the Respondent's engineers is in our opinion immaterial to the issues of this case. Whether or not a concerted activity is protected does not depend on whether or not it is necessary. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whom they may be directed.' Such concerted activities lose the pro- tection of the Act, and those who participate in them become subject to disciplinary action, only when they contravene the policies of the Act, or some other basic public policy. Activities which have been held to be unprotected or unlawful under these principles, or to warrant withholding the remedial pro- visions of the Act, have included such conduct as violence or threats of violence,7 seizure of property,' attempts at unilateral dictation of terms of employment or other usurpation of working time,° inter- ference between an employer and its customers while continuing to work," engaging in harassing tactics," intermittent work stoppages to win unstated ends.12 and engaging in conduct which cast doubt on the Union's good faith at the bargaining table.13 But this Union's concerted activity, as expressed through the Manpower Availability Conference, was subject to none of these disabilities; nor did it other- wise contravene the policies of the Act or any other basic public policy. There was here in essence only a conditional threat that some of the Respondent's employees would resign if the Respondent did not meet the Union's stated bargaining demands, conduct which the Board, with court approval, has held to be protected concerted activity." Moreover, here the Manpower Availability Conference was directly related to matters of collective bargaining in issue between the Re- spondent and the Union-notably wages, as to which an impasse had been reached in negotiations. And the nature of Pearson's conduct in connection with the Conference cannot be equated with the conduct in- volved in the cases relied on by the dissent. The vice of the employees' conduct in the Jefferson Standard Broadcasting case was that it in- volved a direct attack upon the employer and its business, unrelated to terms or conditions of employment or to any matter in issue between 8 The classic example of a protected concerted activity-a strike-obviously may result in serious financial loss to the affected employer . See also N. L. R. B Y. Peter Cailler Kohler Swiss Chocolates Co., 130 F 2d 503, 506 (C. A. 2). It would seem moreover to be apparent that other normal and lawful activities of a union , such as the successful nego- tiation of a wage increase or other changes in terms and conditions of employment, may well involve an added financial burden to the employer W. T. Rawleigh Company v. N. L. R. B., 190 F. 2d 832 (C. A. 7). s N. L. R. B. v. Fansteel Metallurgical Corp ., 306 U. S. 240. 9 N L. R. B. v Montgomery Ward & Co., 1'57 F. 2d 486, 496-497 ( C. A. 8) ; C. G Conn, Ltd. v. N. L. R B., 108 F. 2d 390, 397 (C A. 7) ; Phelps Dodge Copper Products Corpora- tion, 101 NLRB 360, 367-369 ; Underwood Machinery Company, 74 NLRB 641, 645--647 10 The Hoover Company v . N. L. R. B., 191 F 2d 380, 386, 389-390 (C. A 6) ; Mont- gomery Ward & Company, 108 NLRB 1175; Jefferson Standard Broadcasting Company, supra. 11 Textile Workeis Union of America, CIO, et al ( Personal Products Corporation), 108 NLRB 743 12 International Union, U A TV., A. F. of L, Local 232, et at v Wisconsin Employment Relations Board, et al ., 336 U. S 245 I3 Bausch & Lomb Optical Company, 108 NLRB 1555. 14 Southern Pine Electric Cooperative, 104 NLRB 834 ; Nemec Combustion Engineers, 100 NLRB 1118, 1123, enfd. 207 F 2d 655 (C A. 9), cert. denied 347 U S. 917. BOEING AIRPLANE COMPANY 151 the union and the employer. In that case, striking union Inenibers cir- 'culated handbills vitriolically attacking the employer on the quality of its television broadcasts, calculated solely to injure the employer's busi- ness and omitting all reference to a lallor controversy lest the disclosure of motive might hurt their cause in the eyes of the public. In the -Hoover case, the union engaged in a boycott of the employer's prod- ucts-likewise an action directed solely at injury to the Employer's .business, and unrelated to any collective-bargaining issue.15 Here the employees collectively were seeking legitimate ends-to broaden their opportunities for employment, to obtain the best market for their services, and to lessen their dependence upon the Respondent for em- ployment-all matters clearly and properly related to the issue of wages, then the subject of negotiation with the Respondent.16 To hold, as the Trial Examiner concluded and as our dissenting colleagues would hold, that such activity ought to be characterized as indefensible, and therefore unprotected, would in our opinion be an unwarranted extension of the doctrine involved in the cases on which they rely, and .an unwarranted intrusion on the rights of employees as guaranteed in Section 7 of the Act. Such a step we are not prepared to take. Under all the circumstances, we find that the Manpower Availability Conference was a concerted activity protected by Section 7 of the Act. As the Respondent discharged Pearson because of his participation in .a protected concerted activity, it thereby discriminated against him to discourage union membership and activity, in violation of Section 8 (a) (3) of the Act, and further interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1). Whether the Respondent's con- duct be viewed as a violation of Section 8 (a) (3), or Section 8 (a) (1), or both, we further find that the remedy of back pay hereinafter pro- vided will effectuate the policies of the Act. 2. We agree with the Trial Examiner that the Respondent did not refuse to bargain in violation of Section 8 (a) (5). Pearson's dis- .charge resulted from the Respondent's good-faith but mistaken belief 1s The Montgomery iI'ard case cited by the dissent involved an unlawful usurpation of working time. See footnote 9, supra 19 Member Murdock is disposed to believe that an important aspect of the vice which the courts found in the employees' conduct in Jefferson Standard Broadcasting and in Hoover was that it involved an attempt by employees not on strike to interfere with the employer's efforts to sell the very same services or products which the employees were be- ing paid to produce Thus in the Jefferson case the Court agreed that employees had been discharged "for cause" who had made a "sharp, public, disparaging attack upon the quality of the company's product and its business policies." And in Hoover, although the goal was recognition of their union, the court said : "It is a wrong done to the company for employees, while being employed and paid wages by a company to prevent others from purchasing what their employer is engaged in selling and which is the very thing their employer is paying them to produce. An employer is not required under the Act to finance a boycott against himself " The instant case is distinguishable because it did not Involve any disparagement or boycott of the employer's product or services-only a concerted effort by employees to obtain a better market for their services after an impasse in wage negotiations. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to its rights under the Act; such a discharge is therefore neither evidence that the Respondent was not bargaining in good faith nor it- self a refusal to bargain. In view of the Respondent's good-faith bar- gaining concerning the discharge following the event, we find it un- necessary to decide the extent of the Respondent's obligation, if any, to bargain before such a discharge." In the absence of any evidence of had faith we find, in agreement with the Trial Examiner, that the Re- spondent did not violate the Act in connection with the salary increase involved herein. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with the operations of the Respondent set forth in section I of the Ijitermediate Report, have a close, intimate, and substantial rela- tion to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. As the Respondent's unfair labor practices resulted from its good-faith but mistaken belief concerning its rights under the Act in a limited area, and there is nothing therein to suggest the likelihood of other types of violations of the Act, we shall order it to cease and desist only from engaging in the same or any like or related conduct. We have found that the Respondent interfered with, restrained, and coerced its employees, and discriminated in regard to Pearson's hire and tenure of employment. Although Pearson has been reinstated, he is entitled to reimbursement for any loss of pay suffered as a result of the Respondent's unfair labor practices. We shall therefore order that the Respondent make him whole for any loss of pay suffered as a result of the Respondent's unfair labor practices by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings 18 dur- ing the same period. We shall also order the Respondent to make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back pay due.19 On the basis of the foregoing, the Board hereby strikes all reference to Section 8 (a) (1) and (3) from the Trial Examiner's conclusion of law numbered 3, and makes the following additional : 17 S. D Cohoon cP Son, 101 NLRB 966, 967. 16 Crossett Lwmber Company, 8 NLRB 440, Republic Steel Corporation v V L R B 311 U. S. 7. 19 F. W. Woolworth Company, 90 NLRB 289. BOEING AIRPLANE COMPANY SUPPLEMENTAL CONCLUSIONS OF LAW 153 4. By discriminating in regard to the hire and tenure of employment of Charles Robert Pearson, thereby discouraging membership in Seattle Professional Engineering Employees Association, the Re- spondent has engaged in and is engaging in unfair labor practices with- in the meaning of Section 8 (a) (3) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices af- fecting commerce within the meaning of Section 2 (6) and (7) of the Act. Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations /ict, as amended, the National Labor Relations Board hereby orders that the Respondent, Boeing Airplane Company, Seattle, Washington, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Seattle Professional Engineering Employees Association, or in any other labor organization of its em- ployees, by discriminating in regard to their hire or tenure of employ- ment, or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Seattle Professional Engi- neering Employees Association, or any labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Charles Robert Pearson in the manner set forth in the section hereinabove entitled "The Remedy." (b) Post at its plant in Seattle, Washington, copies of the notice attached hereto as Appendix A.20 Copies of said notice, to be fur- nished by the Regional Director for the Nineteenth Region, Seattle, 20 In the event that this Ordei is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Washington, shall, after being duly signed by the Respondent's repre- sentative, be posted by the Respondent immediately upon receipt there- of and be maintained by it for a period of sixty (60) consecutive days thereafter, in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Upon request make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of back pay due under the terms of this Order. (d) Notify the Regional Director for the Nineteenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that except as otherwise found herein the complaint in this case be, and it hereby is, dismissed. MEMBERS RODGERS and BEESON, dissenting in part : We dissent from the conclusion of our colleagues that the Respond- ent, in discharging Pearson, violated Section 8 (a) (1) and (3) of the Act. Although, like our colleagues, we cannot agree with the sub- jective approach of the Trial Examiner to this issue, we nevertheless believe that he reached the correct result because the Union's con- certed activities, as expressed through the Manpower Availability Conference, contravened the basic policies of the Act. The Trial Examiner concluded-and the majority does not dispute this conclusion-that the Union's activity, in seeking to facilitate the resignations of a substantial number of the Respondent's engineers, could have caused substantial damage to the Respondent's business. Moreover, contrary to the assertion of the majority, such damage can- not be equated with the losses potentially inherent in a strike; for the damage caused by the Union's activities would have resulted from a permanent severance of the employer-empoyee relationship and not, as in a strike, from the mere temporary cessation of work. Pearson sought both to participate in the Union's activity and to continue to draw his pay from the Respondent. The Respondent discharged him because it did not believe it was required to finance such an injury to itself by continuing on its payroll an employee engaged in activities designed to induce other employees to sever their employment rela- tionship. The Respondent's belief, in our opinion, was correct, and its action was wholly within its rights. The situation presented by this case is not new-for the Board and the courts have held that an employer is not required to finance an injury to itself by retaining on its payroll employees whose participa- BOEING AIRPLANE COMPANY 155 tion in concerted activities was directed toward injuring or destroying its business.2' In affirming the Board's conclusion in the Jefferson Standard Broadcasting case, the Supreme Court stated, at pp. 472,476: There is no more elemental cause for discharge of an employee than disloyalty to his employer. It is equally elemental that the Taft-Hartley Act seeks to strengthen, rather than to weaken, that cooperation, continuity of service and cordial contractural rela- tion between employer and employee that is born of loyalty to their common enterprise. ... It [the employees' conduct] was a continuing attack, in- itiated while off duty, upon the very interests which the attackers were being paid to conserve and develop. Nothing could be fur- ther from the purpose of the Act than to require an employer to finance such activities. Nothing would contribute less to the Act's declared purpose of promoting industrial peace and stability. In„th'at case, the Supreme Court also quoted with approval the fol- lowing language from the opinion of the court of appeals in the Hoover case : An employee can not work and strike at the same time. He can not continue in his employment and openly or secretly refuse to do his work. He can not collect wages for his employment, and, at the same time, engage in activities to injure or destroy his em- ployer's business. In our opinion, these salutary principles are equally applicable to Pearson's discharge. We are not here concerned with the legitimacy of the Union's objectives, but rather with the illegitimacy of the means by which the Union sought to achieve those objectives. The Man- power Availability Conference was not a gathering together in concert of employees in order to compel the grant of a bargaining demand by 'a temporary refusal to work; it was, rather, an employment agency operated under the aegis of the Union for the purpose of causing the permanent severance of the employment relationship. Such activ- ity is the antithesis of the purposes of the Act, which seeks to strengthen the bonds of cooperation between employer and employee. It is equally as disloyal, equally as injurious to the employer's business and equally as disruptive of industrial peace and stability, as the con- duct which was condemned in the above-cited cases. Because it was conceived and utilized for purposes opposed to the purposes of the Act, the activities of the Manpower Availability Conference derive 21 Jefferson Standard Broadcasting Company, 94 NLRB 1507 , 1511-1512, affd. sub nom. Local Union No. 1229, International Brotherhood of Electrical Workers v N. L. R. B., 346 U. S.-464 ; The. Hoover Company v. N. L R. B , 191 F . 2d 380 ( C A. 6) ; Montgomery "Ward 4 Company, 108 NLRB 1175. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no protection from the guarantee of Section 7 of the Act. The Re- spondent's discharge of Pearson, because of his participation in such an unprotected activity, was accordingly not unlawful, and we would therefore dismiss the complaint in its entirety. Appendix A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Seattle Professional Engineering Employees Association, or in any other labor or- ganization, by discriminating in regard to the hire or tenure of employment of our employees, or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Seattle Professional Engineering Employees Association, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, ex- cept to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL make whole Charles Robert Pearson for any loss of pay suffered as a result of our unfair labor practices. All our employees are free to become or remain or to refrain from becoming or remaining members of the above-named Union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment because of membership in or activity on behalf of any such labor organization. BOEING AIRPLANE COMPANY, Employer. Da.ted---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. BOEING AIRPLANE COMPANY 157 Intermediate Report and Recommended Order STATEMENT OF THE CASE After an investigation of a charge and amended charge duly filed by the Seattle Professional Engineering Employees Association, designated in this Intermediate Report as SPEEA or alternatively as the Union, the General Counsel of the National Labor Relations Board, in the name of the Board, caused the Regional Director for its Nineteenth Region at Seattle, Washington, to issue a complaint on June 3, 1953, in which Boeing Airplane Company, Seattle Division, was named as a respondent employer. The complaint alleged that the Respondent has engaged and has continued to engage in unfair labor practices affecting commerce, within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended and reenacted by the Labor Management Relations Act, 1947, 61 Stat. 136, designated herein as the Act. Copies of the charge, the amended charge, the complaint, and a notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices the complaint, as amended in certain minor respects, alleged in substance that: (1) The Union is now, and has been since August 31, 1951, at least, recognized by the Respondent as the exclusive collective-bargaining representative of a majority of its employees in a defined unit appropriate for the purposes of a collective bargain; (2) the Respondent and the Union on or about April 7, 1952-pursuant to a notice given by the Union under the terms of a contract then current-initiated negotiations for a new agreement; (3) the Respondent and the Union have been unable to reach agreement in the negotiations conducted thereafter; (4) the Respondent on or about January 27, 1953-during the pendency of the negotiations with the Union-discharged Charles Robert Pearson because of his union membership and activities and because of his participation in certain specified concerted activities calculated to break the impasse in the contractual negotiations; (5) the Respondent-by its discharge of Pearson because of his participation in a concerted activity designed to strengthen the Union's position in contractual negotiations, its refusal to permit Pearson to be represented by union spokesmen in a conference immediately prior to his discharge, and its affirmation of determined opposition to the particular type of concerted activity in which Pearson had engaged at the Union's direction-failed and refused to bargain in good faith with the Union as the representative of its employees; (6) the Respondent, on or about March 12, 1953, unilaterally made a wage in- crease effective for the employees in the unit for which the Union is the recog- nized representative, and thereby additionally failed and refused to bargain with the Union in good faith; and (7) the Respondent's course of conduct, as described, involved unfair labor practices affecting commerce within the meaning of the Act, as amended. The Respondent's answer, duly filed, admitted the jurisdictional allegations of the complaint and the status of the Union as a labor organization, but denied the commission of any unfair labor practices. Specifically, the Respondent admitted the appropriateness of the unit, described in the amended complaint, for the pur- poses of a collective bargain, and it admitted recognition of the Union at all times since approximately May 8, 1946, as the exclusive representative of employees in a unit substantially identical with that described in the complaint. The firm's answer also admitted the execution of a contract with the Union in 1951 and its participa- tion in negotiations for a new agreement initiated in April of 1952 by that organ- ization. It admitted the failure of the parties to reach an agreement as of the date of the complaint. The Respondent, in its answer, admitted certain factual allega- tions with respect to Pearson's discharge, but denied that the discharge was effected because of Pearson's membership in the Union or because of any identification of the activities in which he engaged as union activities. The Respondent denied that its course of conduct with respect to the discharge and subsequent reemploy- ment of Pearson involved a refusal to bargain; insofar as the wage increases of March 12, 1953, are concerned, the answer admitted unilateral effectuation of the increases, but asserted that they were less than the increases demanded by the Union, and that they were made effective only after proper notice and discussion with the labor organization. As a further ground of defense, the Respondent alleged that the Union had refused to bargain collectively in good faith with the Respondent, in violation of Section 8 (b) (3) of the statute, in that it had organized, promoted, and operated a Manpower Availability Conference as described in the complaint, and engaged in certain activities related to such a conference as a threat of economic action against the Respondent, in pressing its collective-bargaining demands. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In accordance with the notice already cited, a hearing was held before me, as a duly designated Trial Examiner, at Seattle, Washington, between June 23 and 25, 1953, both dates inclusive. The General Counsel, the Respondent, and the Union were represented by attorneys. All the parties were afforded a full opportunity to participate, to be heard, and to introduce evidence pertinent to the issues. At the outset of the case, the General Counsel moved to amend the complaint in certain minor particulars; these motions were granted without objection. Cer- tain rulings with respect to the admissibility of evidence were announced at the hearing; these rulings are hereby affirmed. At the close of the testimony each of the parties argued orally; their argument has been embodied in the stenographic transcript. Pursuant to appropriate notice given at the hearing, briefs have been received from the Respondent and the charging labor organization. No brief has been received, however, from the General Counsel's representative. Upon the entire record in the case, and upon my observation of the witnessgs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Delaware corporation with its principal office at Seattle, Washington. The firm operates plants in Wichita, Kansas, and in Seattle and Renton, Washington, at which it is engaged in the manufacture of aircraft and air- craft parts. In the course and conduct of its business, and at all material times, the Respondent has purchased for use in its Seattle and Renton plants materials, sup- plies, and equipment originating outside of the State of Washington valued in ex- cess of $1,000,000 annually; it manufactures and sells to agencies of the United States Government and to operators of commercial airlines, aircraft and aircraft parts valued in excess of $1,000,000 per year. The Respondent makes no contention that it is not involved in commerce and business activities which affect commerce, within the meaning of those terms as de- fined in the Act. See Boeing Airplane Company, 103 NLRB 1025. I find that it is engaged in such activities and that assertion of the Board's jurisdiction would effectuate the objectives of the statute. II. THE LABOR ORGANIZATION The Seattle Professional Engineering Employees Association is, and at all mate- rial times has been, a labor organization within the meaning of Section 2 (5) of the Act, which admits employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES THE FACTS A. Preliminary statement All of the relevant evidence with respect to the issue involved in this case is em- bodied in documentary material or substantially undisputed testimony. I am en- tirely satisfied that any conflicts revealed in the record are due to differences of recollection. And since none of them appear to involve significant factual questions, I have undertaken to present the relevant data in narrative form without reference to the testimony of any particular witness-except to the extent that such references may be necessary, if at all, in connection with my narrative summation. B. The contractual negotiations In 1946 after a consent election, the Union was "certified" as the exclusive repre- sentative of certain employees in the Respondent's engineering division. Since its certification, the Union has executed several contracts; there have been no work stoppages incidental to any of the negotiations. Approximately 3,500 employees were at work for the Respondent, throughout the period with which this case is con- cerned, within the SPEEA unit. On April 2, 1952, in a letter to the Respondent, SPEEA notified the latter of its desire to amend the 1951 agreement between the parties, by the negotiation of cer- tain changes in relation to wages, salaries, and overtime compensation. In its letter, SPEEA described the changes as: . . . changes which we feel are necessary to improve the morale of the Engi- neering Division and to establish the engineer in his proper place in relation to the rest of society with regard to his salary and working conditions. BOEING AIRPLANE COMPANY 159 The letter indicated that other subjects might be brought up during the course of negotiations , however. On the following day, A. F. Logan, vice president in charge of industrial relations for the Respondent, at its Seattle Division, acknowledged the receipt of SPEEA's letter by the firm and indicated that its representatives would be available to meet the Union's committee on April 7, 1952. A number of meetings were held thereafter. SPEEA appears to have requested wage and salary increases for various classifications in the engineering division which ranged from 28 to 36 percent of the then current wage and salary levels. On June 27, 1952, in a letter to E. M. Gardiner, the chairman of SPEEA' s executive commit- tee, Vice-President Logan reported that the Respondent would be willing to in- crease the "base salary rate" of each employee covered by the firm's agreement with the Union by 6 percent, and to increase all minimum and maximum rates established by the agreement in the same percentage . Vice-President Logan also presented a company offer with respect to overtime compensation. The Respondent offered to make each of these suggested adjustments effective as of July 1, 1952, if the Union accepted its offer within 60 days. In a reply letter, dated on July 10, 1952, SPEEA rejected the offer. Further negotiations revealed that an impasse had been reached. Thereafter in August and September of 1952, the parties met on several occasions with a representative of the Federal Mediation and Conciliation Service. At the suggestion of the Federal conciliator, apparently, SPEEA representatives raised for consideration a number of additional matters with respect to which they wished to negotiate contractual changes. On August 25, 1952, in a letter to Vice-President Logan, these proposals were formalized . A detailed analysis of the Union's "Second Contract Agreement Proposal" would not appear to be required, except to note that the Union modified its request for a base pay raise and called for a 13.5 percent in- crease for all of the employees in SPEEA classifications, retroactive to the first of July. The other subjects covered in the proposal involved such matters as overtime, merit raises, incentive pay, pensions, installation of an engineering efficiency system, removal of time clocks, salary data, sick leave, and company recognization of the Union's "area representative" system-which appears to be roughly comparable to the shop steward arrangement common in conventional labor organizations. The revised proposals were described by the Union's executive committee as "equitable and practical" in view of the discussions held with company representatives since the inception of negotiations. In the meantime on or about August 21, 1952, pursuant to notice previously given, the amended 1951 agreement between the Respondent and the Union had been automatically terminated . Each of the parties to the agreement however, in an exchange of correspondence, had declared its readiness to continue negotiations for a new agreement. Such negotiations, as we shall see, did in fact continue-and the conditions established under the expired contract have been maintained, with one exception to be noted, up to date. In the course of the conferences before the Federal conciliator, the impasse in negotiations seems to have disappeared. In any event, the Respondent's first formal reply to SPEEA's "Second Contract Agreement Proposal," as embodied in a letter dated September 3, 1952, presented a modified proposal with respect to sick leave. Vice-President Logan, however, closed the letter with the observation that: In all other particulars, a review of the whole situation as it is apparent to us, including recent developments in negotiation, has not led us further to modify our previous offer. The parties last met with a Federal conciliator on September 11, 1952; there- after, apparently in the hope and expectation that the impasse had been broken, the parties dispensed with the conciliator's services and resumed direct negotiations. C. The Manpower Availability Conference During the negotiations for the 1951 agreement previously noted, at a time not set forth specifically in the record, the executive committee of the Union appears to have organized a so-called action committee specifically designated to originate and formulate plans for various types of union action short of a strike, calculated to focus economic pressures upon the Respondent and thus to strengthen the Union's position in the negotiations . The record shows that this committee suggested sev- ,eral courses of action calculated to bring pressure upon the Respondent Company; among the suggestions was one that SPEEA organize and conduct a Manpower Availability Conference for the benefit of any Boeing engineers who might wish to seek employment elsewhere. (The exact nature and significance of the suggestion DECISIONS OF NATIONAL LABOR RELATIONS BOARD with respect to a conference-with which this case is immediately concerned-will be set forth elsewhere in this report.) Since the executive officials of the Union expected that a new agreement with the Respondent would be executed shortly, and since such an agreement later did in fact materialize , the suggestion with respect to a Manpower Availability Conference was never elaborated. In August of 1952, however, while the negotiations for a new agreement were being held under the guidance of a Federal conciliator , the chairman of the action committee resubmitted the suggestion , among others, to a meeting of SPEEA area representatives shortly before a scheduled general membership meeting; thereafter, I find, it was discussed informally by the area representatives and members of the executive committee of the organization. At SPEEA's August membership meeting, the conference was cited in an action committee report as one of several courses of action calculated to focus economic pressure upon the Respondent . A majority of the members at the meeting, which appears to have been held on August 4, 1952, approved the committee's report and directed the executive committee of the organization to publish it for the information of the membership . This was done , and the report appears to have been distributed shortly thereafter . With the approved report on the Manpower Availability Con- ference, the executive committee distributed a ballot calculated to secure an expres- sion from the membership as to its willingness to participate in a conference of the type outlined. The report indicated that it was being submitted to determine whether or not the membership desired to initiate "punitive action" of the type indicated, at the time. In pertinent part, the report read as follows: INTRODUCTION The Manpower Availability Conference is conceived as a "market place" where Engineers who seek more desirable employment can meet with Companies which seek to hire more Engineers There are three major reasons for sponsor- ing such a conference; namely, to help those Engineers desiring to move to obtain the best competitive offer, to help to discover the true market price for Engineers , and as a punitive action to reduce the Engineering services available to Boeing. GENERAL PLAN First, signatures of Engineers who pledge themselves to attend such a con- ference will be obtained through the Area Representatives . A few items of personal data , such as years of experience , will also be obtained for submission to the invited Companies to serve as an inducement . Area Representatives will keep this information confidential . If membership response is favorable, a letter will be written and mailed to every Company we know of in the country which employs Engineers . Perhaps ads could be inserted in the "Positions Available" columns of newspapers in a number of leading cities , inviting inquiries of SPEEA. Next, a date would be set for the conference and arrange- ments made for the interviews with those Companies who accept our invitation. After the conference, each Engineer who was interviewed would be asked to drop a card bearing his present salary and the increase offered into a box. This information would then be summarized and circulated to all Boeing Engi- neers. A summary of the experience of persons hired by the participating Companies could be made and circulated to all of the other Companies on our mailing list. It is expected that this information would excite the interest of both groups . Another conference could then be called and the procedure re- peated. This conference should be sufficiently unusual to be newsworthy and could thus aspire to considerable free publicity . This publicity in turn would have a further punitive action to discourage new hires from coming to Boeing A number of questions may arise. First , "What if the Conference doesn't work?" There is little purpose in conjecturing about success of this item. If only ten Engineers pledge to attend or if only one Company accepts our invitation , the conference will obviously fall far short of expectations and might be called off. All we would have lost in that eventuality would be some work and printing cost. We will never know for sure , though, unless we try. As a point of interest, however, several Companies have been sounded out and they all have indicated unofficially that they desire to be included Second, "Is it ethical?" There is nothing unethical about providing a time and a place for these two groups to get together After all, it is Boeing policies which provide the impetus for a change, not SPEEA. Anyway, Boeing has set the ethical standard with their Gentlemen 's Agreement . Third, "Won't the Gentle- men's Agreement of the Aircraft Industries Association be a hindrance?" BOEING AIRPLANE COMPANY 161 Possibly, but we have a method which might get around that for some Engi- neers, namely, expressing willingness to AIA members to notify Boeing in advance of plans to seek employment elsewhere. At any rate, we might be surprised at the variety of Companies who are sufficiently interested in our qualifications to make attractive offers. Fourth question, "What if the Company finds out about the Conference?" It would be our intention that they find out well in advance, when some invited Companies send them our letter, if they haven't learned of it sooner by word of mouth. . . . The so-called gentlemen's agreement of the Aircraft Industries Association, to which reference is made in the above-quoted report, refers to a resolution adopted by the Aircraft Industries Association with respect to the practices of member com- panies in connection with their engineer recruitment programs Insofar as it may be material, the agreement and the Respondent's interpretation of it will be dis- cussed elsewhere in this report. Late in September or early in October of 1952 the results of the ballot or "pledge" circulated to the SPEEA membership in connection with the Conference report were announced. There were 871 replies from approximately 2,100 members in the Respondent's employ. The replies were distributed as follows. Pledge: I I pledge to attend this conference, I desire to change Companies, and I authorize the Executive Committee to notify Boeing of my in. tention not more than two weeks prior to the conference ---------- 2 I pledge to attend this conference and I desire to change Companies, but I desire not to disclose my intention to Boeing---------------- 3 1 pledge to attend this conference, but do not necessarily desire to change Companies at this time-- --------- --------- ------------ ---- 4 I am willing that the conference be conducted, but I will not par- ticipate-------------------------------------------------------- 5 1 desire that no conference be conducted---------------------------- Percentage Number of Replies 10 1 5 86 9 86 420 48 28 321 36 82 34 3 89 Prior to the receipt of these pledges, the executive committee had appointed a special Manpower Availability Conference Committee to develop detailed plans for the indicated conference, and to initiate such a conference if necessary. Charles Robert Pearson, an engineering designer in the Respondent's employ, had been named as committee chairman. For convenience, the Manpower Availability Con- ference will be designated hereafter in this report as the MAC, and Pearson's com- mittee will be designated as the MAC Committee. The executive committee of the Union requested the MAC Committee to perfect its plans for an MAC, but to un- dertake no action implementing such plans which might jeopardize current negoti- ations for a new contract. Sometime in September or October of 1952, after the results of the ballot previously noted were tabulated, SPEEA's executive commit- tee notified the Respondent of the results at a bargaining conference; the Respond- ent's representatives were informed however that since the negotiations appeared to be going well, no action with respect to the MAC would be taken by the Union, for at least 4 weeks. According to Edward M. Gardiner, then chairman of the Union's executive committee, this information was communicated to the Respondent on or about September 29, 1952. Pursuant to the instructions of the executive committee the MAC Committee organized a number of subcommittees and proceeded to formulate detailed plans for the conduct of the projected conference. As of October 17, 1952, the subcommittees would appear to have been organized, and their responsibilities assigned. Partici- pation in the MAC, as planned, was to be limited to SPEEA members in the Re- spondent's employ. The Union had some members employed at the Continental Can Company, but they appear to have been employed under a trade agreement still in effect. D. Further contractual negotiations In a letter addressed to the Union dated November 20, 1952, the Respondent stated its "ultimate position" with respect to the various issues under negotiation With respect to "base salary rates and rate ranges" the Respondent reiterated its previous offer of a 6-percent across-the-board increase effective as of July 1, 1952. Chairman Gardiner of SPEEA testified, however, that the Respondent, dehors the contract, indicated its intent to initiate a program of merit increases twice a year, instead of only once a year as formerly, and to increase its fund for merit increases from 3 to 6 percent of the unit payroll. 238207-55-vol. 11 O 12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company also proposed a revision in the method of computation to be used in the calculation of hourly rates of pay for scheduled overtime work on the part of employees in the firm's so-called "exempt" classifications, the revision to be effec- tive January 2, 1953. Chairman Gardiner, as a witness, characterized this pro- posal as less favorable than the Respondent's offer with respect to overtime com- pensation in July 1952. As of that time, the Respondent had offered to pay for overtime work on a revised basis, retroactive to the first of the month; the Re- spondent's "ultimate position" however, as noted, limited such retroactivity to the 6-percent increase in base salary rates and rate ranges. The Respondent concurred in SPEEA's proposal with respect to a sick leave clause, and countered various union proposals with respect to the improvement of efficiency in the utilization of engineers with a proposal that the firm's job classification structure be revised' in cer- tain specified respects. Except in the particular respects noted, the Respondent proposed execution of a contract which would embody terms and provisions "similar" to those in the previ- ous agreement between the parties. The letter in which the Respondent stated its ultimate position also included certain statements and commitments with respect to various issues raised in the Union's second contractual proposal; these covered such matters as merit increases, incentive compensation, pensions, salary data, and com- pany recognition of the Union's "area representative" system. In the context of the present case, however, none of these issues would appear to be material. The Respondent's offer, as described, was subsequently rejected by the union mem- bership in a formal referendum. In a letter dated December 20, 1952, Chairman Gardiner formally communicated this information to Vice-President Logan; he ex- pressed the "expectation" however that negotiations between the Union and the Re- spondent would continue. E. The Respondent's proposal to revise salary rates and rate ranges unilaterally On December 26, 1952, the Respondent acknowledged SPEEA's letter of the 20th. The letter referred to SPEEA's expressed expectations that negotiations with the Company would continue and went on to say that: . you may be assured that the Company also intends the continuance of such negotiations to the end that a new contract may be consummated between the parties, and will extend the fullest cooperation in arranging mutually con- venient meetings for this purpose. The Union was advised however that there were, in the opinion of the Respondent, "compelling reasons" why its proposals with respect to salary rates and overtime com- pensation should be placed in effect as soon as possible. In this connection, the Respondent's letter continued as follows: It is recognized that the action designated . . . is less than you have de- manded, and it is assumed that your demands, to the extent that they are not met by such action, will be among the subjects of further negotiation. The proposed action would be completely without prejudice to such further negoti- ations or to your position in respect of such negotiations. However it is felt by the Company that such action should be taken as to the employees represented by your organization as soon as the necessary govern- mental approvals can be obtained, for the reasons that bargaining in respect of a new contract has extended over a period of many months, without agree- ment having been reached; that it appears that there is no immediate possibility of reaching any mutual agreement short of granting all or substantially all of your demands-which the Company is unwilling to do; that such action is de- sirable and equitable in view of the effective or contemplated increases to other Company employees; and that the Company's competitive hiring position com- pels such action. The Company indicated a desire to discuss the matter, and suggested a conference at a fixed date. On January 5, 1953, subsequent to the conference date suggested on behalf of the Respondent, Chairman Gardiner acknowledged the Respondent's statement of its intention to apply unilaterally for Wage Stabilization Board and Air Force ap proval with respect to its proposed changes in base salary rates and overtime com- pensation Vice-President Logan was advised that SPEEA would file an objection to any such proposal with the Wage Stabilization Board and that it would file an unfair labor practice charge with the National Labor Relations Board On Janu- ary 7 the Respondent, in reply, advised the Union that: BOEING AIRPLANE COMPANY 163 Certainly no disparagement of your organization or of the negotiations being conducted by your organization is either intended, or would result from such increases inasmuch as the proposed action is less than you would have demanded and it is a fact well known to your members that you have not withdrawn your overall demands but are continuing to press them. Further, as we have stated several times previously, the proposed action is completely without prejudice to your demands and further bargaining in respect of them, and the Company is ready to meet with you at any time for such purpose. The proposed increases are not conditioned in any way upon withdrawal of your demands. Thus, it would seem the proposed action should be regarded as mutually advantageous to your organization, to the employees it represents, and to the Company; would be consistent with and in no way prejudicial to good faith bargaining; and on the contrary would amount to a constructive step in the bargaining process. A statement as to the reasons for the Union's objection to the Company's proposed unilateral action was invited. The Union's reply, however, was somewhat delayed. On February 6, 1953 (after a series of events to be set forth elsewhere in this report) Gardiner, as the spokesman for the organization, advised the Respondent that: It is our view that the proposed increases are so timed and planned that their effect would be to hamper SPEEA in the performance of its functions as a col- lective bargaining agency. Implicit in your letter is the view that the pending negotiations must be protracted, and that the increases you propose should be accepted because they can be made promptly. We take the view that the dispute as a whole can, and should be settled promptly; that the effect of any such partial adjustments in compensation would serve to delay rather than hasten comple- tion of the pending negotiations. Previously-as early as January 22, 1953, I find-Vice-President Logan had called Chairman Gardiner to ask if SPEEA- would reconsider its previous refusal to join the Company in an application to the WSB for approval of the 6-percent increase. He had even offered, I find, to let SPEEA take credit for the increase as a partial satisfaction of its demands, and had assured Gardiner that the proposal involved no effort to embarrass the Union or impede the negotiations. Gardiner's reply, the record shows, had been negative. F. The organization of the Manpower Availability Conference Late in December 1952, presumably at or about the time of the rejection by the SPEEA membership of the Respondent's final offer, Chairman Pearson of the MAC Committee had been instructed to effectuate the committee's plans, previously drafted, with respect to the conduct of a Manpower Availability Conference. Specifically, Pearson's testimony shows, he was instructed to secure a local city license to conduct an employment agency. This action appears to have been taken-despite the belief of the committee members that the MAC, as projected, would not fall within the scope of the Seattle city ordinance with respect to the licensing of employment agencies-in order to avoid any possible question as to the applicability of the ordinance. Early in January 1953, Pearson sought and secured the suggested employment agency license. At or about the same time his draft of a letter of invitation to the MAC, prepared for transmittal to approximately 2,800 employers of engineers throughout the country, was approved by the Union's executive committee. On a date not set forth clearly in the record, shortly after January 14 or 15, 1953, the invitations were sent; they were printed on the letterhead of SPEEA and went out over the facsimile signature of Chas. Robt. Pearson, Director Manpower Availability Service (Licensed and Bonded Employment Agent). A copy of the letter of invita- tion was sent to the Respondent. In a covering letter addressed to Vice-President Logan, which the Respondent appears to have received on January 23, 1953, Chair- man Gardiner summarized the purposes for which the MAC would be held. His letter read as follows: DEAR SIR: - 1. This is to advise you that SPEEA has started and will complete a Manpower Availability Conference. 2. Various companies are to be invited to come to Seattle to interview those SPEEA members who have expressed a desire to entertain offers of employment. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. This conference is being conducted for the following purposes: a. To provide members with improved opportunities to bargain for, their services. Our membership has requested SPEEA to restore the freedom and privacy of engineers who seek to improve their situations by changing employers. b. To obtain data on the true market value of engineers with various amounts of experience. 4. In offering this service to its members, SPEEA has retained an agency for bringing together those engineers and companies who may care to discuss employment possibilities. SPEEA offers no special inducement to engineers to terminate, nor does it enter in any way into negotiations between the companies and the engineers. The testimony of Vice-President Logan indicates that he had no idea, upon receipt of the above letter, as to the identity of the "agency" which SPEEA had retained to "bring together" interested engineers and companies which might care to discuss employment possibilities. He also testified that he had never previously heard of Pearson, that he was unaware of Pearson's employment by the Respondent as an engineer, and that he had no reason to connect Pearson with the "agency" previously noted. I credit this testimony. When told that Pearson was a Boeing engineer, and that he was then out of the city in connection with the Respondent's business, Logan ordered him recalled for a conference. G. The discharge of Charles Robert Pearson On January 27, 1953, pursuant to instructions, Pearson reported at the Respond- ent's plant After a slight delay, he was conducted to Vice-President Logan's office. The latter indicated that he wished to discuss the letter of invitation to the MAC signed by Pearson as a licensed and bonded employment agent, as forwarded to the Respondent by Chairman Gardiner. In response to a direct inquiry, Pearson admitted that the facsimile signature on the letter was his own. When asked if he was a "licensed and bonded employment agent" however, Pearson declared that the question directly concerned his activities in behalf of SPEEA; he therefore insisted that he would be unable to discuss the matter further unless "appropriate members" of the SPEEA executive committee could be present. Although pressed to give a reply, Pearson insisted that the matter at issue concerned his legitimate union activ- ities only, and could not be continued on a personal basis. Logan, however, in- sisted that the matter had nothing to do with SPEEA, or Pearson's membership in it, or his activities in its behalf. He renewed his inquiry as to whether Pearson was a licensed and bonded employment agent, stating that, if this were the case, he had some suggestions to make. Pearson, however, insisted that since "any and all employment agency activities" in which he might be engaged were on behalf of SPEEA, the question involved a SPEEA matter and should be handled as such, rather than as a personal inquisition; he inquired as to whether Logan intended to call in the responsible SPEEA officials. Vice-President Logan denied that the con- ference was either an inquisition or personal; he described it only as an attempt to get "some facts" from the employee. Up to this point, the conversation had been punctuated by the efforts of Pearson to take notes, and to reduce his own comments to written form before each reply. At or about the point indicated above, however, Logan called in a secretary and had stenographic notes made with respect to the balance of the conference. No substantial conflict is revealed in the record with respect to the accuracy of Pearson's notes and I have, thus far, relied upon them. My findings with respect to the balance of the conversation in Vice-President Logan's office, however, will be based upon the transcribed notes of his stenographer. Vice-President Logan continued to insist that his inquiry had nothing to do with Pearson's membership in SPEEA or his activity in its behalf. As the record shows, he went on to say that: I am interested rather in whether you are or are not a licensed and bonded employment agent. Furthermore, I am interested in whether you are or are not working as an employment agent at this time. . . . It is our belief that in the absence of any information from you and your refusal to give us any information with respect to your alleged activities as an employment agent we can make a reasonable assumption that the allegations are true. You have had reasonable opportunity to inform us otherwise if such were the case. We do not believe that you can do justice to such activities and your work as an employee of Boeing when carried on simultaneously. And, therefore, the BOEING AIRPLANE COMPANY 165 suggestion which I had intended to make and now make is that you elect to give up one or the other of these activities. We do not propose that you shall proceed to carry both of them out... . Pearson reiterated his contention that the discussion could not be continued until appropriate union representatives were present, and he refused to acknowledge Logan's comments as related to anything other than "direct" SPEEA business. Logan replied that: You have had your chance to make your choice, and it is obvious you have no intention to do that, so that places us in the position where we have to make our own decision as to which of these activities; namely, the operation of an employment agency or your assigned work as a Boeing employee are going to be paramount in your mind. We will, therefore, make the decision that your work as an employee at Boeing would be entirely too greatly impaired by your outside activities as an employment agent, and we are therefore unwilling to permit you to continue such activities and remain in our employ. Our decision for the reasons stated is that you are being terminated forthwith. Pearson observed in reply that the timing of the Respondent's action was definitely connected with SPEEA's release of the Manpower Availability Conference invita- tions, and that his discharge could only be interpreted as a retaliatory action against SPEEA and discrimination against him in retaliation for his legitimate union activ- ities He demanded that the Respondent's action be "dropped" and that ap- propriate union officers be present at any further discussion of it Vice-President Logan rejected Pearson's statement as to the implications of his action, and closed the discussion. In due course, Pearson received official notice that his employment had been terminated. The notice indicated that he had been dismissed for refusal to answer questions relative to his outside activities as an employment agent. On the afternoon of the 27th after his departure from the plant, Pearson attended a meeting of SPEEA's executive committee to discuss his discharge. A letter appears to have been dispatched immediately to the Respondent, requesting a conference on the subject of Pearson's termination. On January 29, 1953, Vice-President Logan, on behalf of the Respondent, indicated willingness to arrange such a conference promptly. (In the meantime, Pearson had received and accepted an offer of em- ployment by SPEEA, as a member of its office staff, in order to enable him to maintain his income.) A conference was held on February 6, 1953. The SPEEA representatives contended that Pearson had been engaged in SPEEA activities as a union member, and that he had been unjustly terminated. They also expressed the opinion that his termination had been due to a misunderstanding; that Vice- President Logan had genuinely desired to determine why Pearson had acted as he did; that Pearson had considered the subject under discussion as one of direct concern to SPEEA and thus had refused to discuss it in the absence of SPEEA representatives; and that Logan, because of his conception as to the purpose of the conference, had felt that the presence of SPEEA's representatives would not be re- quired. In reply to this statement of the Union's position, at the conference on February 6, Logan indicated that he had no objections to the attendance of SPEEA representatives, as requested by Pearson, at a second conference. On or about February 9, 1953, such a conference was held. There is some doubt as to whether Pearson attended the conference. His own testimony would indicate that he did not. Chairman Gardiner's testimony would indicate otherwise. The conflict is a minor one, however, and I find its resolution unnecessary. Logan reiterated the questions he had directed to Pearson, and stated the Respondent's position with re- spect to the propriety of the latter's actions. The Union's view, with respect to the propriety of Pearson's conduct was stated in reply. A general discussion ensued and, in summation, Vice-President Logan said that the Respondent would send a letter to Pearson restating its position Such a letter was dispatched by the Respondent on February 11, 1953. After a reference to the Union's request for a "more particularized statement" as the Re- spondent's reason for his termination, and a repetition of the reason given on his ter- mination slip, Vice-President Logan restated the Respondent's opinion that the entry on Pearson's termination slip correctly summarized the position taken by him at the January 27 conference, at which he had been informed of the reason for his termina- tion . In response to SPEEA's request however, the letter was offered as a "review" of the matter It reviewed the receipt of the Manpower Availablity Conference in- "itation and Chairman Gardiner's covering letter, and went on to say that: It was clearly apparent from this letter and invitation that SPEEA had started and intended to carry out a nation-wide solicitation of our business competitors, 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and others who compete with us in hiring engineers, in an effort to bring about a situation in which substantial numbers of engineers would leave the employ of this Company, for employment elsewhere. It is obvious that even if there were an adequate supply of engineers at the present time, such a program would be against the best interests of Boeing Airplane Company. However, as you know, there is not an adequate supply of engineers at this time; the Company is in serious need of more engineers and has been conducting an extensive nation-wide advertising campaign designed to fill this need. Thus, the invitation signed by you is part of a deliberate pro- gram which is very damaging to the Company. The letter recapitulated the Respondent's decision to recall Pearson for a confer- ence with respect to the invitation letter, and the course of the discussion at that conference on January 27. It continued as follows: As your work in connection with the program is clearly against the best interests of the Company and in violation of your obligations as an employee, you were asked to elect either to give up your work as an employment agent or to leave the Company's employ. You refused to make such an election, leaving the Company no alternative but to terminate you. It seems to us that while an employee continues at work, continues to draw salary from a company and is not on strike, it is no more than proper for that company to require that he do nothing intentionally which would have the effect of seriously damaging that company. On the other hand, it does not seem to us. that an employer should be compelled to continue paying a salary to an em- ployee who engages in a deliberate program resulting in serious damage to the Company, whether or not his activities have been authorized or ratified by a collective bargaining organization of which he is a member. For these reasons, your dismissal is considered proper. On February 13, 1953, the SPEEA executive committee presented a revised con- tract proposal to the Respondent. With respect to base salary rates and rate ranges. it proposed an increase of 9.7 percent to the nearest dollar; in connection with this proposal, and a companion proposal with respect to the method of computation to be: utilized in the determinatin of compensation for scheduled overtime, the Union proposed July 1, 1952, as a retroactive date. At the close of its letter, however, the Union advised the Respondent that: It is the intention of the Executive Committee to recommend rejection of any offer made by the Boeing Airplane Company until such time as Mr. Charles Robert Pearson is reinstated unequivocally. Such reinstatement shall not be in any way contingent upon his relinquishing his prerogative of managing the SPEEA Manpower Availability Conference. The Union's letter of invitation to the MAC, previously noted, had indicated that "commitments to attend" would be accepted by SPEEA up to February 6, 1953_ Shortly after that date-which also marked the occasion of the first conference be- tween the Union and the Respondent in regard to Pearson's discharge, as noted- Chairman Gardiner informed James D. Esary, Jr., the Respondent's labor relations manager, by telephone, that the Union had received approximately 12 replies to its letter of invitation, and that the Union's plan to conduct an MAC in March had been abandoned. The testimony of Pearson indicates that 18 letters were received in toto, some of these being received after the deadline date set in the Union's letter of invitation. Some, Pearson testified, expressed interest, other replies indicated, however, that the senders considered the distance to Seattle too great, or that they did not consider their needs serious enough to warrant participation. With this information at hand, Labor Relations Manager Esary dispatched a reply, dated on March 2, 1953, to the Union's revised contractual proposal. In a second letter on the same date, Labor Relations Manager Esary referred to SPEEA's indication, in its previous communication, that further contractual negotia- tions would be "fruitless" unless the Respondent reinstated Pearson. Esary advised the Union that: We are by this letter offering reemployment to Mr Pearson to his former position as of the time he is available and returns to work.... The labor relations manager, however, reiterated the Respondent's position that -Pearson's discharge fell entirely outside the scope of the contractual negotiations, but indicated that the Respondent did not wish to see any controversy of such a nature impair negotiations that directly affected a large number of engineers. His letter continued as follows: BOEING AIRPLANE COMPANY 167 Second, you have been very candid in stating to use the results of the Man- power Availability Conference, which as we understand it, did not attain the objectives for which it was intended. Mr. Pearson's termination has been re- viewed in light of this fact and the fact that, to our knowledge, further activities in connection with this Conference are not anticipated. The offer to reemploy him is not to be interpreted as reflecting any different position on the part of the Company as to activities of this type conducted by those who are not on strike but continue to draw salary. We cannot consider it proper to believe that such an employee has the right to conduct such activities to the detriment of.the Company At a conference on March 5, 1953, between representatives of SPEEA and the Respondent, Pearson's reemployment pursuant to the above-quoted offer was dis- cussed. And on March 17, 1953, he was reinstated to his former position without prejudice, and with all of the rights and privileges acquired by him prior to his termination. Further correspondence, in evidence, between the Respondent and SPEEA indi- cates a difference of opinion between the parties as to whether the restoration of Pearson's rights and privileges was the result of a "verbal agreement" or a result of the Respondent's own initiative. In the light of the entire record, a resolution of this conflict would not appear to be essential to a disposition of the issues involved in the case; I have made no attempt, therefore, to reach a conclusion as to the basis on which Pearson's rights and privileges were restored. H. The salary increase On March 6, 1953, before Pearson's reinstatement had become effective, J. H. Goldie, vice chairman of SPEEA's executive committee, advised the Respondent's labor relations manager by letter that the Company's final offer-as outlined on No- vember 20 and December 26, 1952, and reiterated on March 2, 1953-was again rejected. With respect to the Respondent's expressed intention to put into effect, unilaterally, the 6-percent salary increase previously proposed and rejected, Labor Relations Manager Esary was advised that SPEEA's executive committee had agreed to poll the membership of the Union, in order to learn its desires with respect to the acceptance of such an "interim" offer, if the offer would include full retroactivity with respect to overtime payment computations as well as base salary rates. A reply in this connection was requested from the Respondent, if it had "any further sugges- tions" in the matter. This communication was acknowledged by the Respondent in a letter dated March 12, 1953. It referred to the Union's position as an unqualified rejection of the Re- spondent's offer with respect to basic salary rates, and went on to advise the Union that, for reasons previously stated, the Respondent felt compelled to make its pro- posed increases effective without prejudice to further negotiations, and that the ad- justments previously outlined would be made effective forthwith. When the first paychecks which reflected the increase were distributed, they were accompanied by a notice from the Respondent to each employee in the SPEEA unit. That notice read as-follows: NOTICE You will note that the enclosed check represents an increase in your pay of 6% as of March 13, 1953. On April 23, 1953, you will receive payment of the 6% increase in your base pay for the period July 1, 1952, through March 12, 1953, as well as any amount arising from an increase in the overtime compensa- tion rate for "Exempt" classifications effective January 2, 1953. The new over- time rate for SPEEA "Exempt" employees is straight time plus $1.25 an hour where the base salary is above $100 a week, and time and one-half on all salaries of $100 a week or less. The former rate was straight time or $3.00 an hour whichever was the greater. These increases have been placed into effect without a new contract having been signed with your collective bargaining, SPEEA. This is less than the in- crease requested during the course of current negotiations, and is being placed into effect by the Company without prejudice in any way to the pending negotia- tions between the Company and SPEEA. Prior to placing these increases into effect SPEEA was advised and consulted, and SPEEA objected to the Company placing these increases into effect. The Company is hopeful of. and looking forward to the execution of a collective bargaining agreement with SPEEA which will be mutually agreeable to the parties. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The nature of the subsequent negotiations between the parties is suggested in cer- tain letters which have passed between representatives of the Respondent and Mr. F. D. Frajola, the new chairman of SPEEA's executive committee. As of the dates on which the hearings in this case were held no final agreement with respect to a new contract had been reached. CONCLUSIONS A. The issues In this posture of the record, the General Counsel contends that Pearson, as chairman of the Manpower Availability Conference Committee, had been engaged in assistance to a labor organization and other concerted activities for the purpose of collective bargaining or other mutual aid or protection; so considered, it is argued, his activities fell within the ambit of those accorded statutory protection under the Act, as amended. The Respondent's action, therefore, in regard to the termination of his employment is challenged as interference, restraint, or coercion directed against its employees in connection with their exercise of rights statutorily guaranteed, and as discrimination in regard to his tenure of employment and the terms and conditions of his employment, calculated to discourage membership in the Union, a labor organizz t! on. The General Counsel also contends that Pearson's discharge was calculated to ob- struct the organization of the Manpower Availability Conference, as planned, which the Union had developed to break a current impasse in the contractual negotiations. Although the General Counsel disclaims any intention to take a position with respect to the nature of the impasse, it is contended that the discharge of Pearson-calculated, as it was, to interfere with the operation of the projected conference-injected bad taith into the situation, and negated the existence of any good-faith impasse at that time and thereafter. As a subsidiary contention, the General Counsel alleges that the Respondent's unwillingness to allow Pearson representation by the union officials at the conference which preceded his discharge demonstrated its contempt for the Union and its intent to undermine that organization and render it ineffective as a contract negotiator. In this aspect of the case, therefore, the Respondent's discharge of Pearson is again challenged as evidence of the Respondent's bad faith, in connec- tion with the contractual negotiations then current. In the light of a situation which the General Counsel describes as a "bad faith impasse," the unilateral salary increase which the Respondent put into effect in March 1953 is challenged as additional evidence of a refusal to bargain in good faith, on the ground that it created a situation in which the Union found itself unable to bargain effectively. The Respondent's position, in opposition to these contentions, may be simply stated. It stands upon the proposition that the MAC, if successful, would have created a sit- uation so fraught with the possibility of irreparable damage to the Company as to warrant its characterization as a type of concerted activity not entitled to statutory protection. At one point, in oral argument, the Respondent's counsel suggested a possible contention that the organization of the MAC, as projected, would not have involved concerted activity, apparently on the ground that it would be calculated only to facilitate individual resignations from the Company's employ; this contention, how- ever, was never fully articulated, and there is no indication that it constitutes a sig- nificant part of the Respondent's theory of the case. I have, therefore, given it no consideration. Pearson's activities as chairman of the MAC Committee, therefore, are charac- terized by the Respondent as indefensible and unworthy of statutory protection. In the alternative, the Union's attempt to organize the MAC is characterized as a pressure tactic so unfair as to deserve characterization as a union unfair labor prac- tice, if so, the Respondent contends, it should be held unlawful as contrary to statutory policy, and thus clearly beyond the ambit of statutory protection. Pear- son was terminated, the Respondent contends, because of his participation in an unprotected concerted activity. The Respondent denies that his termination in- volved interference, resti aint or coercion, or discrimination with respect to his ten- ure of employment or the terms or conditions of his employment to discourage membership in the Union; and it denies, in addition, that his termination evidenced "bad faith" with respect to the contractual negotiations then in progress or that it injected an element of "bad faith" into the impasse then current with respect to basic salary rates and overtime compensation. In the light of that impasse the Respondent's unilateral action with respect to the salary adjustments previously noted should be characterized, the Respondent contends, as a matter of business necessity, and not as evidence of an improper refusal to bargain. BOEING AIRPLANE COMPANY 169 B. The statutory policy As the Board and the courts have frequently declared, the National Labor Rela- tions Act, by its terms, established a number of restrictions on the common law right of employers to dismiss their employees at will-for any reason or for no reason at all. The heart of the statute, in this connection, is to be found in Sec- tion 7, which defines the rights of employees, in pertinent part, as follows: Employees shall have the right to . assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. .. . The quoted language has been held to constitute a basic charter of employee rights. Decisional doctrine, however, has long since made it clear that the rights thus de- fined in the statute must be construed in the light of the Act's basic policies. In its statement with respect to these policies Congress has, among other things, de- clared that: Experience has further demonstrated that certain practices by some labor or- ganizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce by preventing the free flow of goods in such commerce through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public in the free flow of such commerce. The elimination of such practices is a necessary con- dition to the assurance of the rights herein guaranteed. [Emphasis supplied.] Within the frame of reference established by the language quoted above, a ra- tionale sufficient to justify disposition of the present case must be found. C Did the Manpower Availability Conference involve a concerted activity? Upon the entire record, there can be no doubt that the MAC was conceived as a device reasonably calculated to assist the Union, a labor organization; its stated objectives, as set forth in Pearson's testimony and in several communications to SPEEA members and the Respondent, were clearly intended to strengthen the po- sition of the Union in the negotiations then current I so find. And those objec- tives-assistance to any engineers who might wish to change employers, discovery of the true "market price" for engineers, and reliance upon any resultant employee attrition as a pressure tactic-also clearly involved mutual aid and protection. Over and above any value such activities could be expected to have as a form of assist- ance to particular engineers who desired more lucrative employment elsewhere, the MAC was clearly intended to make possible a strong union line in the current nego- tiations, for the anticipated benefit for those engineers who made no effort to leave. Did the development of plans for the MAC involve a concerted activity, then9 Clearly so. The original conception was developed by an officially designated union committee Upon the submission of the committee's report to the general membership, the suggestion with respect to a conference was overwhelmingly ap- proved in a referendum, which appears to have been participated in by a substan- tial number of the organization's members. The Respondent points out that of 3,500 employees within the unit only 2,100 were union members at the time of the referendum; that only 871 members returned their referendum ballots, with re- sults previously indicated; and that the MAC Committee was activated, in Decem- ber, by the votes of a majority at a general membership meeting which only 182 members attended Nevertheless, I do not believe that the referendum vote can be said as a matter of law to be unrepresentative. There can be no doubt that all 2,100 of the SPEEA members could have voted; I find no real basis for any con- tention that the vote as recorded, did not reflect the desires of an interested, repre- sentative, cross section of the membership. Even if it could be said, however, that the referendum results merely reflected the desires or intent of a minority, such a finding would not impair the validity of my conclusion-that the MAC involved a concerted activity, insofar as it reflected official SPEEA policy. It is so found. The actual conference plans were developed by a committee specifically desig- nated for the purpose, responsible to the SPEEA executive committee. And Pear- son, as the chairman of the MAC Committee, appears to have maintained a close and constant liaison with responsible union officials. Action to implement the committee's plans appears to have been taken only after a favorable vote at the Union's membership meeting in December, and upon the specific direction of the organization's executive committee. There can be no doubt whatever that the 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MAC, as it developed, was officially sponsored by the Union, and that it repre- sented a concerted activity within the meaning of that term as used in the statute. I so find. D. Did the Manpower Availability Conference involve a protected activity? The unqualified language of the statute with respect to employee conduct entitled to protection has already been noted. And in some Board and court decisions, under the original statute in particular, that language has been given wide scope. One of the more noteworthy decisions, upon which the General Counsel in the present case relies, finds expression in the language of Circuit Judge Learned Hand, in N. L. R. B v. Peter Cailler Kohler Swiss Chocolates Co Inc., 130 F. 2d 503, 506 (C. A. 2), he declared that We agree that the act does not excuse "concerted activities," themselves inde- pendently unlawful. N. L R. B. v Fansteel Metallurgical Corp., 306 U. S. 240 . . ., N. L. R. B. v. Sands Manufacturing Co., 306 U S. 332, 344 . Southern Steamship Co. v. N. L R. B., 316 U. S. 31 ., Hazel-Atlas Glass Co' v. N. L. R. B., 4 Cir., 127 F. 2d 109, 118 But so long as the "activity" is not unlawful, we can see no justification for making it the occasion for a dis- charge; a union may subsidize propaganda, distribute broadsides, support political movements, and in any other way further its cause or that of others whom it wishes to win to its side. Such activities may be highly prejudicial to its employer, his customers may refuse to deal with him, he may incur the enmity of many in the community whose disfavor will bear hard upon him, but the statute forbids him by a discharge to rid himself of those who lay such burdens upon him. Congress has weighed the conflict of his interest with theirs, and has pro tanto shorn him of his powers. . . . As the quotation indicates, however, the "concerted activities" deemed worthy of statutory protection are not without qualification. Very early in the administra- tion of the original statute, it was established that the rights therein guaranteed did not include the right to engage in concerted activities independently unlawful. Among the activities thus held unprotected were those which contravened specific statutory provisions or basic statutory policies. N. L. R. B v. Sands Mfg. Co., 306 U. S. 332; Scullin Steel Company, 65 NLRB 1294; Joseph Dyson and Sons, Inc., 72 NLRB 445, Thompson Products, Inc , 72 NLRB 886 Other activities denied protection were those which involved a violation of other Federal legislation or necessary State police regulations. N L R B. v Fansteel Metallurgical Corp., 306 U. S. 240, Southern Steamship Company v. N L. R. B., 316 U. S. 31; American News Company, 55 NLRB 1302. And the Board, itself, quickly developed a test of its own, independently of any considerations as to the "lawful" character of a given concerted activity, to determine whether particular types of conduct ought to receive statutory protection. In Harnischfeger Corporation, 9 NLRB 676, 686, the Board was called upon to consider the rights of employees who had engaged in a partial strike, and defined the issue as follows- The instructions given the men were designed to carry out a program of the Amalgamated; this being so, there is no question but that the action bringing about the discharges was union activity Section 7 of the Act expressly guaran- tees employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection We do not interpret this to mean that it is unlawful for an employer to discharge an employee for any activity sanctioned by a union or otherwise in the nature of collective activ- ity. The question before us is, we think, whether this particular activity was so indefensible, under the circumstances, as to warrant the respondent, under the Act, in discharging the stewards for this type of union activity Within this frame of reference, employee disobedience and partial work stoppages have been denied statutory protection as breaches of an implied condition of the employment contract. N. L R. B. v. Montgomery Ward iC Co., 157 F. 2d 486, 496 (C. A. 8); see C G Conn, Ltd. v N L. R B, 108 F. 2d 390 (C A. 7), Elk Lumber Co., 91 NLRB 333. In the last case cited, the Board declared that- Either an unlawful objective or the adoption of improper means of achieving it may deprive employees engaged in concerted activities of the protection of the Act. Wildcat strikes, undertaken in an effort to interfere with the collective bargaining process as applied by a duly authorized and designated bargaining representative, have also been denied statutory protection. Harnischfeger Corp v. N. L. R. B , 207 BOEING AIRPLANE COMPANY 171 -F 2d 575 (C A. 7) and the cases therein cited. And recently, a slowdown during contractual negotiations has been held unprotected because of its tendency to under- mine the statute's general policy of balanced bargaining. Phelps Dodge Copper Products Corporation; 101 NLRB 360 cf. Underwood Machinery Company, 74 NLRB 641, 646-647. In addition, at least one court has held, expressly, that an employer ought not to be forced to finance "disloyalty" on the part of employees who issue publicity statements unfavorable to the enterprise, reasonably calculated to injure or destroy their employer's business, while continuing to collect their wages. Hoover Co- v. N. L. R. B., 191 F. 2d 308, 389-390 (C. A. 6). In connection with the 1947 amendment of the Act, Congress, too, made its posi- tion clear with respect to the limitations which ought to be imposed upon "pro- tected" concerted activity. In the House Conference Report (No. 510, 80th Con- gress, pp. 38-39) on the statute as amended, reference is made to certain early Board decisions that the language of the original Act protected concerted activities regardless of their nature or objectives. The conference report pointed out that these Board decisions had not received judicial approval-and went on to say that: . the courts have firmly established the rule that under the existing provi- sion of section 7 of the National Labor Relations Act, employees are not given any right to engage in unlawful or other improper conduct. In its most recent decisions the Board has been consistently applying the principles established by the courts . By reason of the foregoing, it was believed that the specific provisions in the House Bill excepting unfair labor practices, unlawful concerted activities, and violation of collective bargaining agreements from the protection of section 7 were unnecessary. Moreover, there was real concern that the inclusion of such a provision might have a limiting effect and make improper conduct not specifically mentioned subject to the protection of the act. In addition, other provisions of the conference agreement deal with this par- ticular problem in general terms. For example, in the declaration of policy to the amended National Labor Relations Act adopted by the conference com- mittee, it is stated in the new paragraph dealing with improper practices of labor organizations, their officers, and members, that the "elimination of such prac- tices is a necessary condition to the assurance of the rights herein guaranteed." This in and of itself demonstrates a clear intention that these undesirable con- certed activities are not to have any protection under the act, and to the extent that the Board in the past has accorded protection to such activities, the con- ference agreement makes such protection no longer possible. [Emphasis supplied.] In a comparatively recent case-Jefferson Standard Broadcasting Company, 94 NLRB 1507-the Board had occasion to consider the propriety of certain discharges effectuated because the employees in question had, while still in the respondent's employ, distributed a handbill which deliberately sought to alienate their employer's customers by impugning the technical quality of his product, without any reference to the fact of its publication in connection with a labor dispute. The Board found that such tactics, under all the circumstances, were hardly less indefensible than acts of physical sabotage. It held that the employees involved had gone "beyond the pale" when they published and distributed the handbill in question. On appeal, this decision was reversed and remanded. Local Union No. 1229, International Brotherhood of Electrical Workers v. N. L. R B., 202 F. 2d 186, 187-189 (C. A., D. C.). Essentially, the court held that the Board was empowered, under the statute, to find certain types of concerted activity unworthy of protection only on the basis of a preliminary finding that such activties were unlawful. In the absence of such a finding in the case at bar, the court remanded the case for a determination as to whether the particular conduct in issue was or was not lawful. And the court's views with respect to the scope of the agency's discretion, and the standard of judg- ment which the agency ought to apply, were set forth as follows: Despite ^ the broad language of § 7, which assures employees the "right to . engage in . . . concerted activities for the purpose of collective bar- gaining or other mutual aid and protection," certain activities are excluded from the Act's protective ambit. For example, the Act expressly prohibits jurisdic- tional strikes, secondary boycotts and strikes for recognition in defiance of a certified union. And the courts have denied protection to employees resorting to "unlawful" means, e. g., a strike in contravention of the purpose of the Act [citing cases], in violation of a federal statute forbidding mutiny [citing case], or of local laws prohibiting acts of violence or seizure of property [ citing case]; 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or seeking "unlawful" objectives, e. g., concerted action to force an employer to violate a federal statute [citing case]. Protection under § 7 of the Act, then, is withdrawn only from those concerted activities which contravene either (a) specific provisions or basic policies of the Act or of related federal statutes, or (b) specific rules of other federal or local law that is not incompatible with the Board's governing statute. . . The Board properly applied this rule to the extent that it found that the objective of the "second-class" handbill "-to extract a concession from the employer with respect to the terms of their employment-was lawful." But the Board did not apply this rule to the handbill as a means for achieving that objective. Instead of determining the legality or illegality of the use of the handbill, it only found that, unlike other handbills used in the dispute which were signed by the Union and made reference to the pending negotiations, this one was "hardly less `indefensible' than acts of physical sabotage"-apparently primarily because its purpose was undisclosed on its face. . By giving "in- defensible" a vague content different from "unlawful," the Board misconceived the scope of the established rule. If the Court of Appeals for the District of Columbia has correctly defined the limits within which the Board is free to exercise its discretion with respect to the protection of concerted activity (cf. International Union UAW, AF of L v. Wiscon- sin Employment Relations Board, 336 U. S 245), the issue posed in the present case would appear to be relatively simple. Would the organization of a Manpower Avail- ability Conference, as projected, have involved "unlawful" conduct, within the mean- ing of that concept as defined in the Court's opinion? To this question, therefore, we are now required to turn. Since the above was written, the Supreme Court has decided that the Board's disposition of the case at hand fell within the area of its permissible discretion in the discharge of its responsibilities under Section 10 (c) of the Act, as amended. An inquiry as to the allegedly "unlawful" character of the MAC as a union activity, how- ever, would still seem to be germane I so find. E. Did the organization of the conference involve unlawful activity? The Respondent, basically, advances only one contention in this connection. Es- sentially, it argues that SPEEA's plan to conduct an MAC involved a rejection of the "mutual obligation" fixed by the statute upon employers and employee repre- sentatives to "confer in good faith" with respect to wages, hours, and other terms and conditions of employment, or the negotiation of a trade agreement. Under the circumstances, it is said, SPEEA's course of conduct involved a refusal to bargain collectively with the Respondent and amounted to an unfair labor practice under Section 8 (b) (3) of the statute. In theory, the argument may be sound. If the Union's attempt to plan and con- duct a Manpower Availability Conference could be said to contravene a specific pro- vision or basic policy of the statute, its "unlawful" character, under the established precedents, would seem to be established. In the present state of the law, however, with respect to union refusals to bargain, I find myself unable to conclude that the contention has merit. Section 8 (b) (3) of the statute has been construed in a relatively small number of cases. Nearly all of them have been concerned with a union's insistence, as a condition precedent to the execution of an agreement or the conduct of general negotiations, that the employer agree to a provision made unlawful by the amended Act. The Texas Company, et al., 78 NLRB 971, The Great Atlantic and Pacific Tea Company, 81 NLRB 1052; Jones & Laughlin Steel Corporation, et al., 83 NLRB 916; Committee for Companies and Agents, Atlantic and Gulf Coasts, Radio Officers, 82 NLRB 1344; Chicago Newspaper Publishers Association, 86 NLRB 1041, Graphic Arts League, 87 NLRB 1215; Union Employers' Section of Printing Industry of America, Inc., 87 NLRB 1418; Fairmont Construction Company, 95 NLRB 969, Safeway Storec• Incorpo- rated, 100 NLRB 390, American Newspaper Publishers Association, 104 NLRB 806, Puerto Rico Steamship Association, et al., 103 NLRB 1217. In one case, a union was found guilty of a refusal to bargain because of its insistence upon an illegal demand outside of a contract. Conway's Express, 87 NLRB 972. Neither situation is involved in the instant case. In the Chicago Newspaper Publishers case the Board declared that Section 8 (b) (3) of the statute imposes upon labor organizations a duty to bargain "coextensive" with the duty imposed upon employers under Section 8 (a) (5)-and it declared that the provisions of Section 8 (d), which establish the standard of good-faith bar- gaining, restate, in statutory form, the principles established tinder Section 8 (5) of BOEING AIRPLANE COMPANY 173 the original statute. And in Conway's Express, the Board declared that the union's good faith in advancing its challenged proposal could not be considered dispositive of the refusal to bargain issue. In its decision, the Board pointed out that it is the tendency of such proposals to "delay or impede or otherwise to circumscribe the bargaining process" which renders them improper. Does the instant case present a factual situation in which this dictum is applicable? I find myself unable to reach and maintain such a conclusion with conviction. The Board has held, in cases involving respondent employers, that threats on the part of such employers to close or dismantle their plants in order to avoid any need to recognize a union, to bargain with it, or to grant particular demands, involve a refusal to bargain. See, e. g., Parma Water Lifter Company, 102 NLRB 198, Howard-Cooper Corporation, 99 NLRB 891; Arlington-Fairfax Broadcasting Com- pany, Inc., 95 NLRB 846; Dixie Manufacturing Company, Inc., 79 NLRB 645, 658 These decisions are grounded in the theory that threats of the type indicated when coupled with an apparent current ability to make them effective, indicate a rejection of the collective-bargaining principle-i. e., the absence of any desire on the part of the employer to negotiate in good faith with respect to wages, hours, and other conditions of employment. It cannot be said, in my opinion, that an analogy between threats of this kind on the part of an employer, and a union's threat to initiate action calculated to facilitate a significant number of personnel resignations, would be completely un- reasonable. There are distinctions between the two threats now under consideration, however, which can and should be drawn. An employer's threat to close his plant is, in almost every instance, coupled with a very real and present ability to make such a threat effective Its coercive character when addressed to employees or their chosen repre- sentatives, therefore, would be readily apparent. In the case of the Union, a plan to organize and conduct a Manpower Availability Conference would undoubtedly pose a threat of potentially significant employee attrition-but such resignations as might occur would of course result from the decisions of individual employees, absent any inducement from the Union, to accept a better offer. In the MAC, as planned, the Union obviously would have had no control over the offers made, or the decision of any particular employee with respect to their acceptance or re- jection The element of coercion implicit in the situation, in short, would be grounded in the Respondent's fear, not of what the Union could or might do, but of the consequences which might be expected as a result of possible employee action, if the Union's program became effective. So considered, in my opinion, the analogy between the Union's course of conduct and an employer's threat to close a plant cannot be described as complete. Would the Union's course of conduct in and of itself, however, "delay, impede, or otherwise circumscribe" the collective-bargaining process? The question certainly could be answered affirmatively-since a Manpower Availability Conference, if successful, conceivably could lead to a significant diminution in the employee com- plement to be covered by any negotiated agreement. And a course of conduct calculated to facilitate the resignation of dissatisfied employees would certainly appear to involve a "partial" rejection of the collective-bargaining principle-at least on the part of the resigned employees The Respondent contends that a course of conduct directed to the stated end, for the "possible benefit" of the employees who remained in the Respondent's employ, would not be consistent with the statutory duty of a "certified" representative to represent all of the employees in a bargaining unit in dealings with a particular employer. Upon the entire record, however, there can be no doubt that the Union also conceived of the MAC as something more than a device to "facilitate an exodus" of engineers from the Respondent's employ. It appears to have been anticipated- not unreasonably, in my opinion-that the MAC would furnish SPEEA with some data as to the "market value" of engineers and thus strengthen its hand in the nego- tiation of a trade agreement for the engineers who remained Such anticipa- tions-without regard to the argument which might be made as to the weight they were given by the Union's responsible officials-certainly envisioned a continuation of the negotiations and the eventual execution of an agreement I find the precise issue posed by the Respondent's contention, therefore, balanced with doubt. To date, the Board has, on a number of occasions, found unions guilty of a refusal to bargain when their demands related to an objective proscribed by the statute It has had no occasion, as yet, to exercise its discretion in a case involving a lawful union objective pursued by allegedly improper means. In the absence of any guidance in the decisions or the statute's legislative history, I am reluctant 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to express a conclusion on the issue. It involves , essentially, a question of Board policy-with respect to which the Board, appropriately, should be the first to speak. One question remains. Should the Union's course of conduct be considered un- lawful on any other ground? The only theory suggested by the facts which would seem to be worthy of consideration is the possibility that the Union may have been guilty of conduct equivalent to a tortious inducement of breach of contract. As defined in Lumley v. Gye, 2 E. & B. 216 (Q. B. 1853), this tort involved the malicious and active inducement of the breach of a contract of personal service. As the decisions in the field proliferated, however-in this country and elsewhere-the requirement with respect to proof of malice was reduced to a requirement that mere wilfulness would suffice, and even this requirement was eventually abandoned. Today, in one jurisdiction or another, almost every contract, regardless of its nature, may be the object of the tort. Inducement of a breach, as an essential element of the wrong, has given way to prevention of performance; and the concept of active procurement has been expanded to include deliberate and even negligent inter- ference with contractual relations. As the law now stands, then, is the concept applicable here? In my opinion, this question must be answered in the negative. The United States Supreme Court, in Hitchman Coal and Coke Co. v. Mitchell, 245 U. S. 229 (1917), found a union guilty of wrongful conduct because, in the course of a successful organizational drive, it induced employees, by virtue of their adherence to the organization, to breach a so-called "yellow dog" contract which was one of their conditions of em- ployment Insofar as "yellow dog" contracts are concerned the case is no longer the law of the land, but it remains the most thorough and cogent statement by our highest court with respect to the application, in the labor relations field, of the con- cept that the inducement of a contract breach is wrongful. I have considered the ra- tionale of the Hitchman decision in detail. It found a violation by the union of its legal duty to refrain from interference with a contractual relation, despite the fact that the workers involved had been employed "at will" and despite the fact that the employment relationship involved had been one terminable by either party at any time. Nevertheless, I have concluded that the case will not support a conclusion that SPEEA's conduct, as outlined in this report, was tortious at law. It is clear that the organization and conduct of the MAC would not, in and of itself, have effected a severance of the employment relationship between the Respondent and its engi- neers-and there is no evidence whatever that the Union intended to offer any in- ducements at the conference to persuade its members to accept any offers made. A specific disclaimer of any such intention was given to the Respondent when SPEEA notified Vice-President Logan of its plans. A breach of contract is procured when the breach is directly and consciously sought, either as an end desired in and for itself, or as a measure out of which to gain some ultimate aim, such as a trade advantage. But a breach is merely caused when it occurs as an incidental-though perhaps clearly foreseen and inevitable- byproduct of an effort to achieve some objective having no connection with the object which led to the making of the contract. If the distinction between procure- ment and mere causation is valid, and if it be conceded that it ought to lead to a difference in results, those results should be grounded in distinctions as to the motive which caused the actor involved in the case to embark upon the challenged course of conduct. I find no indication of a "wrongful" motive in this case. The true basis of the tort would seem to be the policy of the law to prevent the theft of promised advantages; if so, the necessary motive must be the conscious intention to appro- priate for one's self. or one's organization, that which by law belongs to another. And such a motive may be said to exist, in my opinion, only when the object of the actor who induces a breach of contract is the same as the object of the injured party in the making of the contract If the actor's mind is bent upon an entirely different object, even though his action incidentally may cause the breach, it can hardly be called a "wrongful taking" of another's property. See Sayre, Inducing Breach of- Contract, 36 Harvard Law Review 663, 677-680 (1923). Such is the case, in my- opinion, here. I find no evidence in the present record that SPEEA intended, di- rectly and consciously, to induce or encourage engineer resignations at a Manpower Availability Conference-either as a desirable end in itself or as a means to achieve some direct advantage. Nor do I find evidence, in the record, of a conscious'desire or intention on the part of the Union to appropriate for itself that which by law- belonged to others, i e., the relational interest between the Respondent and its engi- neers Its object in organizing the MAC cannot be equated, in short, with the ob- jectives of the Respondent in the establishment of an employment relationship. In its search for current data as to the "market value" of engineers and in its search _ for a device which would strengthen its position in current contractual negotiations,. BOEING AIRPLANE COMPANY 175 the Union planned only to create a situation in which then current employment re- lationships might be destroyed, as an incidental-though clearly foreseen-result. Upon,the entire record, therefore, 1 have concluded that the course of conduct with which we are here concerned, apart from any ethical judgment which might be ap- plied to it, did not involve anything tortious. It should not, then, be characterized as "unlawful" on that ground. I so find. F. Did the Manpower Availability Conference involve an indefensible activity? As of the date on which this is written, the Board's appeal on the remand order issued by the Court of Appeals for the District of Columbia in connection with the Jefferson Standard Broadcasting Company case, has been submitted to the United States Supreme Court on briefs and oral argument In opposition to the position taken by the court of appeals, the Board currently seeks a determination by the Supreme Court that it is free to withhold the shield of statutory protection from ac- tivities which it may consider indefensible, even though they may not be independ- ently unlawful. Until such time as the Supreme Court speaks on the issue, therefore, the statutory obligation imposed upon the examiner and the Board requires that consideration be given to the contention that the organization of the MAC involved an "indefensible" course of conduct. Since the above was written, on December 7, 1953, the Supreme Court has de- clared, in effect, in N L. R. B v Local Union No. 1 ?29, 1. B. E. W., that the Board was empowered, and even obligated, to find the activities involved in the case before it unworthy of protection, without regard to their "lawful" or "unlawful" character. Justice Burton, for the Court, referred to the statutory mandate laid down for the Board in Section 10 (c) of the Act, as amended, which forbids the agency to require the reinstatement of individuals as employees, or the payment of back pay, if such individuals have been suspended or discharged for cause. He found, in effect, that the respondent employer involved in the case had adequate "cause" for the chal- lenged discharges because the employees had engaged in "disloyal" conduct. In the opinion written for the Court, the conduct in question was characterized as "dis- loyal" because: (I) It involved "a sharp, public, disparaging attack upon the qual- ity of the company's product and its business policies" in a manner reasonably cal- culated to harm the company's reputation and reduce its income; (2) the attack had no direct relationship to any "labor controversy" then current, did not challenge any "labor practice" of the company, and did not solicit "public sympathy or sup- port" for the employees responsible; and (3) the attack was deliberately "sepa- rated"-by those responsible for it-from the current labor controversy, made no ref- erence to it, and "diverted attention" from it. Although the Court did not adopt the Board's characterization of the conduct in question as "indefensible," it did find that the Board had adequate reason to conclude that the employees had been dis- charged for "cause" within the meaning of the statute. However defined, therefore, the Board's obligation to exercise a wide discretion is clear. The disposition of the ultimate question, however, has not been easy. Funda- mental considerations of statutory policy and the place of the agency in the Ameri- can constitutional scheme are involved Does not the exercise of the wide discretion implied in the use of "indefensibility" as a standard of judgment imply that the Board may be called upon in these cases, to exercise a "legislative" function in its decisional process9 But if so, may not Congress have expressly so intended? See the House Conference Report, previously noted. The Supreme Court, in its deci- sion with respect to the Jefferson Standard Broadcasting case, has referred to the conference report, in this respect, as providing support for its interpretation of the statute's intent Basic in my analysis of the issue now presented for consideration as to the alleged "indefensibility" of SPEEA's conduct, have been certain observations of Oliver Wendell Holmes In an article on "Privilege, Malice, and Intent" in 8 Harvard Law Review 1, 3-9 (1894), he said- The intentional infliction of temporal damage . is actionable if done with- out lust cause. When the defendant escapes, the court is of opinion that he has acted with just cause. There are various justifications. In these instances, the justification is that the defendant is privileged knowingly to inflict the damage.... But whether, and how far, a privilege shall be allowed is a question of policy. Questions of policy are legislative questions and judges are shy of reasoning from such grounds. Therefore, decisions for or against the privilege, which really can stand only upon such grounds, often are presented as hollow deductions from empty general propositions . or else are nut as if they them- selves embodied a postulate of the law and admitted of no further deduction... . 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When the question of policy is faced it will be seen to be one which cannot be answered by generalities, but must be determined by the particular character of the case.... Plainly the worth of the result, or the gain from allowing the act to be done, has to be compared with the loss which it inflicts. Therefore, the conclusion will vary, and will depend on different reasons according to the nature of the affair . Perhaps one of the reasons why judges do not like to discuss questions of policy, or to put a decision in terms upon their views as lawmakers, is that the moment you leave the path of merely logical deduction you lose the illusion of certainty which makes legal reasoning seem like mathe- matics. But the certainty is only an illusion, nevertheless. Views of policy are taught by experience of the interests of life. Those interests are fields of battle. Whatever decisions are made must be against the wishes and opinion of one party, and the distinctions on which they go will be distinctions of degree ... the ground of decision really comes down to a proposition of policy of rather a delicate nature concerning the merit of the particular benefit to themselves intended by the defendants ... I make these suggestions ... to call attention to the very serious legislative considerations which have to be weighed. The danger is that such considerations should have their weight in an articulate form as unconscious prejudice or half conscious inclination. To measure them justly needs not only the highest powers of a judge and a training which the practice of the law does not insure, but also a freedom from prepossessions which is very hard to attain It seems to me desirable that the work should be done with express recognition of its nature. The time has gone by when law is only an unconscious embodiment of the common will It has become a conscious reaction . . of organized society knowingly seeking to determine its own destinies. [Emphasis supplied.] How then, can a determination with respect to the alleged "indefensibility" of Pearson's MAC activity be articulated? Certain analogies, it seems to me, should first be noted. At the outset, the right of every employee to seek more desirable employment, to solicit offers, and to resign if a more favorable offer is received, must be conceded The Board has, however, held that the act of abandoning employment is unprotected activity, whether undertaken individually or in concert. Stibbs Transportation Lines, Inc., 98 NLRB 422; Carthage Fabrics Corporation, 101 NLRB 541; Crescent Wharf and Warehouse Company, 104 NLRB 860. In conformity with this principle, a voluntary, unconditional notice of resignation to take effect in the future, as distin- guished from a conditional "threat" to resign in the future if conditions are not met, is considered a complete act, since nothing more than the passage of time is contem- plated by the parties. If no further action is to be anticipated or sought, as a condi- tion precedent to a voluntary termination, the activity cannot be regarded as one calculated to enforce employer capitulation for the purpose of mutual aid or protec- tion. The Board has therefore held that when any activity involves a termination of the employment status, it is not entitled to statutory protection. Such is not the case here, however. At best, the MAC, as projected, involved noth- ing more than a conditional indication that resignations might reasonably be expected to occur in the future if the Respondent failed to meet the Union's conditions-and the Board has held that a threat to quit or resign under such circumstances is a protected activity Elwood C. Martin et al., d/b/a Nemec Combustion Engineers, 100 NLRB 1118, enfd. 207 F. 2d 655 (C A. 9); Southern Pine Electric Cooperative, 104 NLRB 834. The Respondent has contended that the activities of SPEEA and Chairman Pear- son of the MAC Committee, at the time of his discharge, amounted to overt acts that went far beyond any "threat" by employees to abandon their employment conditioned upon certain demands being met. Essentially, it is argued that it was SPEEA's declaration of its intention to hold an MAC if negotiations collapsed which involved a threat, but that the activation of the MAC and the issuance of the invitations for it constituted the first overt step in the anticipated "abandonment" of their employ- ment by a number of the Respondent's engineers. Without regard to my disposi- tion, elsewhere in this report, of the Respondent's other contentions, I find this one to be without merit. The Respondent has attempted to equate a course of conduct, directed generally to the organization of the MAC, with its possible and foreseeable results in particular cases. The argument is not persuasive If an individual "threat" to resign unless certain conditions are met is considered to involve protected concerted activity, as noted, and if the Union's effort to organize and activate the MAC is conceived to be nothing more than a conditional "threat" of future employee attrition, it could be considered entitled to statutory protection. BOEING AIRPLANE COMPANY 177 The next question, then, would appear to be whether SPEEA's plan to conduct the MAC as a concerted activity, with the support and cooperation of a substantial part of the Union's membership, ought to make any difference. Any determination that the concerted character of the activity makes a difference with respect to its right to protection would obviously involve a reversion, at least in some degree, to generally outmoded theories of civil and criminal conspiracy in the labor relations field. These concepts still have some vitality, however. As the Restatement of Torts put it: Particularly in the case of labor combinations, the legal history has been that mere concert may make illegal or at least require justification for conduct in which individuals are free to engage without the requirement of justification when acting independently. Thus, even after an individual worker could with- hold his services or custom from any person for any reason, a combination of workers under the same circumstances still required justification. Partly this was due to the fact that individual conduct in this sphere was not a problem, whereas concerted action was. Partly it was due to the obvious differences in power between action by individuals and action by combinations of individuals. That such differences in power exist is still true with respect to conduct of individuals or groups of individuals acting in concert.... Vol. 4 Restatement of Torts, 95-96 (1939). [Emphasis supplied.] To the extent that its character as a concerted activity rendered it capable of effec- tive use as a vehicle of union power, therefore, the fact that the MAC involved concerted activity may well be a significant factor in any decision as to its propriety. The General Counsel and the Union rely upon the contention that unions have traditionally sought to serve their members as employment agencies; it is argued that the MAC was nothing more than a technique which the Union planned to employ in order to perform this conventional union function. Unions, however, normally seek to make available such employment opportuni- ties as may come to their notice for currently unemployed members. In organizing a conference designed to stimulate and channel offers of employment on more favorable terms to members already employed, SPEEA was attempting to do more than most union "hiring halls" have ever done; also, it was attempting, in effect, to encourage a course of conduct, on the part of employers, long condemned by the business community; specifically, SPEEA's letter of invitation solicited interested employers, in substance, to engage in "labor piracy" as that term is generally under- stood. The fact that the Union's letter of invitation did not mention the Respondent or the fact that most of the Union's members were employed by it ought not to affect this conclusion, in my opinion. The Respondent's status as the only firm in Seattle which utilizes a substantial number of engineers is a matter of common knowledge. Even if it could be assumed, arguendo, that the existence of an impasse in the contractual negotiations between the Union and the Respondent was not widely known, most employers, in my opinion, would be able to infer that any sizeable corps of dissatisfied engineers in Seattle would consist, in the main, of those in the Respondent's employ. It is so found. The record, as previously noted, shows that only 18 employers out of approxi- mately 2,800 solicited, replied to the Union's MAC invitation. Although any infer- ences as to the reason for the MAC's failure to arouse employer interest, during a period in which engineers were certainly in short supply, would clearly be speculative, it certainly could be inferred that many of the employers circularized withheld a response because of their unwillingness to appear in public to be engaged in the recruitment of engineers among those already employed. The SPEEA committee responsible for the circulation of its "Area Representative News Letter" did in fact, express the opinion, after the event, that many of the invited firms might have con- cluded that attendance at the MAC would have involved a violation of business ethics. The General Counsel also contends that the MAC ought to be regarded as a protected concerted activity because it was specifically calculated to overcome a barrier to "freedom of contract" on the part of engineers, effectively imposed under a so-called gentlemen's agreement among the member firms of the Aircraft Indus- tries Association, to which the Respondent belongs. The Aircraft Industries Asso- ciation, as the record shows, is a trade association of approximately 80 firms engaged in the manufacture of aircraft, aircraft motors, and aircraft accessories. About 3'/z years ago, in the face of a "tight" labor market for engineers, and developing com- petition in the recruitment of engineering personnel at all levels of skill, the mem- bership bf the association appears to have adopted a resolution expressive, inter alia, of a "consensus of opinion and belief" that firms in need of engineers ought to refrain 3 3 8 2 0 7 -5 5- x-01 110-13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the solicitation or acceptance of employment applications from engineers already employed in the industry, absent knowledge-and acquiescence by the par- ticular engineer's current employer. The record indicates that most, if not all, of the association members follow such a policy, although the specific procedures employed by them to give it effect may vary. The record does not reveal the identity of the employers solicited to attend the MAC, but there can be no doubt that member firms of the Aircraft Industries Association would be among the most likely recipients of the Union's letter of invitation. As to them, the letter would involve an obvious request or suggestion that the gentlemen's agreement with respect to "labor piracy" in the recruitment of engineers be abandoned. Other employers solicited of course-not parties to the resolution-would have no such problem, and would merely have to consider whether attendance at the MAC could be squared with their sense of business ethics. There can be no doubt that the gentlemen' s agreement does impair the freedom of engineers to seek employment elsewhere in the field of aircraft manufacture, at least to some extent, since an engineer who desires to open negotiations with an employer other than his own conceivably may anticipate, reasonably enough, that his relationship with his superiors in current employment could be impaired as a result of their awareness of his attempt to secure work elsewhere, if that attempt proved unsuccessful. Such a hazard would probably exist, however, even in the absence of a so-called gentlemen's agreement. And there is no indication in the record that the implementation of the AIA resolution by the Association's member- ship really "froze" engineers in their jobs; attempts by individual engineers to solicit better "offers" from new employers in the industry were still possible. Insofar as the Respondent is concerned, its responsible officials testified, in sub- stance, that the firm, if requested to permit negotiations between an AIA member and one of its engineers, would first attempt to determine the source of the employee's dissatisfaction and to eliminate it if possible, in the hope that the employee would then be impelled to break off the negotiations; that employees who remained dis- satisfied were always given permission to negotiate secretly for alternative employ- ment elsewhere, and that such employees were not "terminated" merely because of their open demonstration of a desire to seek another position. While it would seem to be clear that the MAC, as projected would have operated as a countermeasure to theg entlemen's agreement, and that it would have func- tioned-at least insofar as the AIA members were concerned-in direct opposition to the Association's expressed policy, it is difficult to see how the character of the conference as a countermeasure could be said to endow it with privilege or justifi- cation, in the context of the present case. The policies of the Association, as expressed in the resolution noted, and as implemented by its membership, do not appear to have been so undesirable or rigid as to call for direct opposition in order to preserve employee rights. The record shows that SPEEA had requested an explanation of the gentlemen's agreement during the negotiations, and that the Respondent, in a letter dated on October 13, 1952, had set forth its understanding of the so-called agreement, and its policies and procedure in giving effect to the agreement's terms. The SPEEA negotiators appear to have objected to the Re- spondent's policy of adherence to the agreement on the specific ground, already noted, that it restricted the freedom of individual engineers to seek employment elsewhere. But the Respondent, apparently, refused to alter its policy of adherence to the agreement and refused to accept any contractual modification which con- ceivably could be construed as acquiescence in the organization of MAC activities as a countermeasure. If the firm's observance of the gentlemen's agreement had involved complete restriction of the freedom of engineers to seek employment elsewhere in the in- dustry-in a manner somewhat analogous to unilateral insistence upon the "reserve clause" used in professional sports-self-help measures designed to overcome the restriction, like the Manpower Availability Conference, might well be considered privileged or justified, because of the social interest in a free and mobile labor supply, under most circumstances. In the absence of proof that the agreement operated in such a fashion, however, its existence and implementation-however irksome- would not seem to be sufficient, in my opinion, to provide legal justification for conduct otherwise subject to question. It is so found. In N. L. R. B. v. Metal Mouldings Corp., 12 LRRM 723 (C. A. 6), the court refused to enforce the reinstatement with back pay of an active union supporter who had, inter alia, advised his fellow metal polishers, if dissatisfied, to seek em- ployment with a competitive firm at which his father was a foreman. The court's decision does not indicate clearly, however, whether it bottomed its refusal of an enforcement order*on a belief that the employee's conduct in recruiting workers for BOEING AIRPLANE COMPANY 179 a competitor justified his discharge , or whether it merely felt that his known and admitted activities in that respect vitiated the probative character of the other evi- dence relied upon by the Board to establish that he had been discharged for his union organizational activities . Additionally, it may be noted that the employee's action, apparently, had not been authorized or ratified by the union involved. It had no "official" character, and did not appear to involve "concerted activity" for the purpose of mutual aid or protection . I have not, therefore, relied upon the case in the evaluation of any contentions made in the instant matter. The General Counsel next contends that the impasse in negotiations between the Respondent and the Union justified the Manpower Availability Conference. Chairman Gardiner testified credibly that the MAC would not have been activated if a contract with the Respondent had been in existence or immediately in prospect. Although couched in terms of opinion, this testimony seems to reflect , in sum, a consensus reached by the Union's responsible leaders. And there can be no doubt, as Gardiner also pointed out, that nothing was, in fact, done to activate the MAC until the SPEEA membership had clearly demonstrated the existence of a genuine impasse, by its rejection of the Respondent's last offer. Certainly, the MAC ap- pears to have been activated in response to an impasse ; whether the impasse in question justified such a response is, however , the issue. The strike, as a device to break an impasse in contractual negotiations , has, of course , received legislature sanction. See Section 13 of the Act, as amended. Essentially, the General Counsel seeks to equate the MAC with a strike and argues that, in this case, it should receive administrative sanction as well. In considering this contention it should be noted at the outset that strikes con- ventionally are conceived of as temporary in character. As an economic weapon and in legal contemplation, they look toward the preservation of a continuing though interrupted relationship. But the MAC, as the Union conceived it, would have facilitated permanent terminations of employment, on the part of those em- ployees able to utilize conference facilities to negotiate for more lucrative or more suitable employment. In cross-examination, it may be noted-when pressed to explain why the Union considered the MAC an effective pressure tactic-Chairman Gardiner testified that SPEEA members considered termination data, i. e., data as to the rate of engineer turnover, to be "most pertinent" in the contractual negotiations, as an indication that the Respondent's wage scales and policies could stand revision. He indicated that such termination data, in itself, served as a "measure" of the opportunities existing for engineers elsewhere, and also as a measure of the "intolerableness" of current conditions in the Respondent's employ. Although he went on to deny that the MAC had been designed "primarily" to accelerate turnover, he admitted it had been recognized that an increase in turnover might develop as a "secondary aspect" of the conference, unless the engineers in attendance found that conditions at Boeing were in fact better than those available elsewhere. (Gardiner did testify, it is true, that SPEEA expected to use any information secured at the conference, as to the "going rates" for engineers at various levels of skill and experience, in its negotiations with the Respondent, but his testimony was coupled with a reference to the pressure implicit in the restoration of "bargaining rights" to engineers, through the conference medium ) Upon the entire record, and particularly in view of the known fact that engineers were in "short" supply, it would seem to be clear that the Union did expect to see the Respondent's rate of engineer turnover acceler- ated as a result of the conference, and that it did expect to utilize such a develop- ment, if it occurred , as a bargaining lever in the negotiations which had reached a standstill. I so find In the usual situation , the impact of a strike upon an employer's operations is both immediate and total-or, at the very least, significant . Employee attrition as the result of a Manpower Availability Conference might not have had the drastic effects characteristic of a strike situation at the outset-but there can be no doubt of the possibility that it might have reached such proportions as substantially to affect the Respondent's operations. And there can be no doubt, either, that its harmful results would have persisted far beyond those properly to be anticipated from a strike of reasonable duration. If successful, in short, the MAC could have contributed substantially to a significant impairment of the Respondent's ability to operate, which, in the case of engineers, could have lasted conceivably for a notably lengthy period of time. There is testimony in the record-which has not been disputed- as to the informed opinion of the Respondent's officials that the successful completion of the MAC could have forced the Respondent to shut down several of its current projects; that 180 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD its contracts with the Air Force might have been canceled as a result , with immensely significant financial repercussions ; and that the replacement of any experienced engi- neers who resigned , in the light of the current engineer shortage, would have taken as much as several years. The record shows that the fears of the Respondent in this respect were not articulated to impress the Board ; they were communicated to the Union in connection with the Respondent 's attempt to justify its course of conduct with respect to Pearson's termination. I so find . And the record, insofar as I can determine, contains no evidence whatever to warrant an inference that the Respond- ent's fears were illogical or ill founded. There can be no doubt that the MAC, if conducted according to plan , could have been a source of potential damage to the Respondent-and that it conceivably could have been far more significant in its effect upon the economic health of the Respond- ent's enterprise than any benefit which the Union might have derived from its employment as a pressure tactic to break the current bargaining impasse. Such being the case, there would certainly seem to be serious reason to doubt "the merit of the particular benefit to themselves" intended by the Union membership and, of course, serious reason to doubt, therefore , whether the impasse in the negotiations could be said to "justify" the MAC as a device to stimulate renewed negotiations. So much for the contentions of the General Counsel and the observations suggested by them. One argument advanced on behalf of the Respondent , however, remains to be noted. The Respondent contends that the MAC, if convened at the call of engineers in its employ, would properly have been subject to characterization as an act of employee disloyalty. It is argued, specifically, that SPEEA-by the publicity it gave the MAC among the employees in the unit it represented-intended to popularize and induce participation in the conference , and that its conduct in this respect actually tended to induce and encourage the Respondent 's engineers to abandon their em- ployment as a result of such participation . Chairman Gardiner did testify, it is true, that the MAC was not activated to "lure" engineers away from the Respondent's employ-but, as we have seen, an acceleration of engineer turnover within the SPEEA unit was certainly anticipated as a possible "secondary" result of the con- ference in question , and it is admitted that the Union intended to utilize any accelera- tion in turnover which might develop as an additional "lever" in the current negotiations. I have found the argument that SPEEA intended to induce its members to abandon their employment lacking in merit. But from the Respondent's point of view, it would seem to make little difference whether any acceleration of employee turnover was deliberately induced or whether it was merely foreseen as a possible or probable result of the Union's proposed course of action. Its counsel has argued, at length, the unfairness of any determination which would , in effect, require an employer to finance "disloyal" conduct on the part of his employees , by allowing them to engage, free of any threat of discharge or other hindrance , in a type of activity which could, conceivably, subject him to "irreparable " injury. In the light of the informed opinion expressed by the responsible officials of the Respondent-which has not been dis- puted-the firm would seem to have had ample reason to fear that employee attrition as a direct result of the conference could have continued to affect its operations adversely long after the termination of any current contractual negotiations with the Union here involved. In this connection the Respondent also sought to elicit, for the record, testimony with respect to other "pressure tactics" suggested by the action committee and con- sidered by the union membership. Among the tactics suggested were: refusals to punch time clocks on the part of nonexempt employees ; refusals to work overtime; the arrangement of simultaneous medical or dental appointments by all of the em- ployees within the SPEEA unit ; intermittent work stoppages ; union meetings during working hours; and action calculated to "neutralize " the Respondent's recruitment campaign in various colleges and universities . None of these proposals appear to have been approved by the executive committee, however, and none appear to have been been adopted; under the circumstances I do not believe that any weight need be given , in this case , to the fact that they may have been suggested to the Union's membership at the same time as the Manpower Availability Conference. As suggestions , and nothing more, they certainly ought not to influence any judg- ment as to the essential character of the MAC; although I received the evidence with respect to these additional "pressure tactics" I have disregarded it as immaterial with respect to any determination as to whether the MAC proposal , in and of itself, in- volved employee "disloyalty " by virtue of its declared purposes and anticipated effect. BOEING AIRPLANE COMPANY 181 Under the circumstances , the contention that a "successful " conference necessarily involved conduct on the part of the conference managers properly subject to char- acterization as "disloyal " certainly cannot be dismissed out of hand. G. Conclusions with respect to Pearson 's discharge After lengthy consideration, and with due regard for the dictum of the late Justice Holmes that policy judgments in this field ought to be consciously articulated, I find myself constrained to find merit in the Respondent 's contentions. Whatever the court of appeals may have said in its review of the Jefferson Standard Broadcasting Company case with respect to the Board's discretion , and its limits, there can be no doubt that Congress expects the Board to continue its current policy, and to withhold any statutory sanctions for the protection of "undesirable" or "improper" concerted activity. And administrative deference to such a legislative policy would certainly seem to require the most thorough consideration of a con- tention that some particular type of employee conduct ought to be proscribed as indefensible . The Supreme Court's decision in the Jefferson Standard Broadcasting Company case confirms the correctness of this view . After pointing out that the Board had considered the course of conduct involved in that case as "separate" and apart from any other concerted activity undertaken in connection with the "labor controversy" in which the employees were engaged , the Court went on to say that: "Even if the attack were to be treated , as the Board has not treated it, as a concerted activity wholly or partly within the scope of those mentioned in Section 7, the means used by the technicians in conducting the attack have deprived the attackers of the protection of that section, when read in the light and context of the purpose of the Act." [Emphasis supplied.] Although the Court did not see fit to explicate its rationale in support of the proposition stated, it has cited many of the cases already noted in this report in support of its conclusion . I can only infer that the Court has recognized the propriety of the concept that a given course of conduct may be denied protection under the Act if justifiably subject to characterization as "inde- fensible" in the light of the statutory objectives. Weighed in the balance, the Manpower Availability Conference, in my opinion, ought to be so characterized . In terms of the standard suggested by the late Justice Holmes, the worth of the result which the Union sought-bargaining leverage in the negotiation of a new trade agreement-cannot stand comparison with the potentially heavy damage which the Respondent could have suffered if such a conference had elicited a substantial response. Vice-President Logan testified without contradiction, and I find , that the Respond- ent's backlog of business at its Seattle Division currently stands at almost an even billion dollars. It involves orders, primarily placed by the United States Air Force, for items vital to our national defense: heavy bombers, guided missiles, gas turbines, and various classified research and experimental projects. All of the Respondent's projects appear to be technical-some highly so-and impossible of completion in the absence of an adequate engineering staff. Logan estimated that if a substantial number (500) of the firm's engineers had resigned at the same time, or within a short period, the Respondent would have had to suspend one project after another as long as the exodus continued ; he expressed the opinion-without contradiction-that the firm would have lost "millions of dollars" worth of business through the forced abandonment of current projects or their cancellation by the Air Force , and that it might have taken the Respondent several years to recover from such a blow, at a cost to it of unnumbered millions of dollars. The vice president 's estimates and opinion have not been challenged as unreasonable. It cannot be said as a matter of law, in my opinion , that the Respondent was under an obligation to assume such a substantial risk. When confronted with the possi- bilities indicated , it was entitled to take appropriate defensive action. In the light of all the considerations herein expressed, therefore, and upon the entire record, I find that the Union's plan to call a Manpower Availability Conference did not in- volve a protected concerted activity, and that the discharge of Charles Robert Pearson for his activities in connection with the formulation and implementation of the plans for such a conference was privileged. H. The negotiations with respect to Pearson's discharge If the Respondent was privileged to discharge Pearson, as I have found , it would seem to follow that his termination , in and of itself, cannot be said to constitute a "refusal to bargain" with the Union, and that it ought not to be considered evidence 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of "bad faith" on the part of the Respondent, either, in connection with the con- tractual negotiations then current. The General Counsel contends, however, that the Respondent failed to fulfill its statutory obligation to bargain with the Union when it denied union representation to Pearson at the conference which preceded his discharge . Vice-President Logan, in his testimony, apparently intended to suggest that his actions, during the confer- ence in question, were dictated by a belief that it had been called to determine the facts with respect to Pearson's status as a licensed and bonded employment agent, and that no grievance or bargainable matter was involved . That position, in my opinion, cannot be characterized as sound or well taken. As the record reveals, Logan was fully prepared to suggest, in the event of an acknowledgment by Pearson with respect to his "employment agency" activities , that such activities would be con- sidered incompatible with continued service on his part as an employee of the Re- spondent, and to order his discharge in the event of a refusal on his part to give up the activities in question . He was also aware, I find, of the fact that Pearson's activities were being conducted under union sponsorship and that they involved an official union project. Under the circumstances , Pearson may well have been with- in his rights, under the statute , when he sought to insist that the conference be sus- pended until certain designated SPEEA representatives arrived . Cf. N. L. R. B. v. Ross Gear ct Tool Co., 158 F. 2d 607 (C. A. 7). The Respondent, however, has pointed out in its brief-with considerable logical force-that Pearson apparently anticipated the subject matter to be covered in his talk with Logan, and that the record reveals no reason why he could not have ar- ranged for the presence of a SPEEA executive , if he had so desired. The question, however, clearly became moot thereafter . When the union officials learned of the situation and requested a conference at which the organization 's position could be stated, their request was readily granted; the conference was held, and the Respond- ent's opinion with respect to the propriety of Pearson's conduct was discussed in de- tail. Two additional conferences were held with a union-designated subcommittee. The SPEEA representatives contended, throughout , that Pearson had been im- properly discharged because his service as the MAC Committee chairman involved protected concerted activities . And the Respondent maintained the opposite view. As its counsel declare in their brief : "The situation was one in which the area of negotiation available to the parties was bounded by a proposal for the reinstatement of Mr. Pearson and a refusal to do so. SPEEA proposed it, the Respondent re- fused to accede, with an explanation of its position, and it is clear that an impasse was reached concerning firmly opposed viewpoints ." The Act, as the Respondent asserts, does not require further negotiation after it is apparent that a settlement of the matter in issue is impossible. Whether the matter, in the final analysis, was treated as a grievance or as a matter for negotiation , the Respondent appears to have ful- filled completely its obligation to bargain with the designated representative of its employees in regard to Pearson's discharge . I so find. I. The salary increase Essentially, it would seem to be the General Counsel's contention with respect to the March 12, 1953, compensation adjustments that a salary increase, otherwise unobjectionable, which coincides with a course of conduct indicative of "bad faith" and a rejection of the collective-bargaining principle, should itself be construed as an act of "bad faith" and, per se, as a refusal to bargain. Since the basic premise of this contention-the argument that Pearson's discharge revealed the Respondent's disinclination to recognize SPEEA's right to press for a favorable bargain, and thus injected "bad faith" into a situation previously untainted-has been rejected, the stated contention with respect to the impropriety of the March 1953 compensation adjustments would appear to have no merit. Counsel for the Respondent have also pointed out--correctly, in my opinion- that Pearson's discharge and the related conferences between the parties were never directly related to the contractual negotiations, except in connection with SPEEA's declared intention to insist upon the dischargee's reinstatement as a condition prece- dent to any further favorable consideration of the Respondent's contract offers. The impasse in the negotiations had developed before Pearson's discharge. And the Union's letter of February 6, 1953, which rejected the Respondent's proposal to effectuate the salary increases and stated its reasons for the rejection, made no men- tion of the Pearson incident then a subject of concurrent discussion. Thus, even if the General Counsel's contentions with respect to the discharge could be said BOEING AIRPLANE COMPANY 183 to have merit, it would certainly be arguable, at least, that the discharge could not and did not affect the character of the impasse and thereby color the Respondent's decision to adjust salary rates and rate ranges unilaterally. Absent all considerations involved in the allegedly discriminatory discharge, then, the record reveals nothing more than pay increases unilaterally effectuated by an employer after their presentation to the designated representative of the employees in collective-bargaining negotiations. The proposed increases had been officially rejected-or, at the very least, characterized as unacceptable. As Justice Burton said in the Crompton-Highland Mills case, at 337 U. S. 217: Such a grant might well carry no disparagement of the collective-bargaining proceedings. Instead of being regarded as an unfair labor practice, it might be welcomed by the bargaining representative, without prejudice to the rest of the negotiations. [Citing cases.] The record in the instant case reveals a consistent effort on the part of the Re- spondent to secure the approval or acquiescence of SPEEA with respect to the com- pensation adjustments it had proposed, precisely on such grounds. But the Union refused, throughout, to indicate its approval or acquiescence with respect to the adjustments involved. I find nothing in the record to suggest that the Respondent's action was intended to "undercut" the Union or to disparage it as the exclusive representative of any employees. Indeed, the record would seem to be entirely clear-to the contrary-that the Respondent made the disputed adjustments effective only in order to assure some degree of success for its spring campaign to recruit personnel among the graduates of the Nation's colleges and technical schools. The testimony offered on behalf of the Respondent indicates-without contradic- tion-that qualified engineers were then in short supply, and that the firm's engi- neering division was inadequately staffed. Logan described the situation in the fall of 1952 as "especially critical"; I credit his estimate. The efforts of the Respond- ent in the fall of 1952 to recruit new employees (as detailed at length by Vice-Presi- dent Logan) appear to have met with decreasing success-and the firm's industrial relations department appears to have been urged repeatedly, by the engineering division, to take all possible steps to improve the situation by an increase in salary rates. Later, in the fall and winter of 1952-53, several competitive California air- craft firms appear to have instituted salary increases approximately equivalent to those offered by the Respondent; these developments, the record shows, were expected to have an adverse effect upon the Respondent's competitive position in the labor market, with respect to salary rates for newly hired engineers , unless corrected. I so find. The notice which accompanied the first checks to reflect the increases indicated clearly that they had been made effective in the absence of a contract and "without prejudice" to the current negotiations between the parties. All of the employees were plainly told that the increases involved did not equal those requested by SPEEA, that SPEEA had been advised and consulted before the Respondent acted, and that the organization had presented its objections. The notice, in my opinion, was reasonably calculated to preserve the Union's prestige as a bargaining agent; I find it entirely unobjectionable. And, under all the • circumstances, I find that the Respondent's action of March 12, 1953, with respect to the unilateral allow- ance of a salary increase and certain adjustments in connection with the calculation of overtime pay, did not involve an unfair labor practice. N. L. R. B. v. Norfolk Shipbuilding and Drydock Corp., 195 F. 2d 632 (C. A. 4); N. L. R. B. v. Bradley Washfountain Co., 192 F. 2d 144 (C. A. 7); W. W. Cross and Company, Inc., 77 NLRB 1162, enfd. 174 F. 2d 875 (C. A. 1). Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2 (2) of the Act, engaged in commerce and business activities which affect commerce, within the meaning of Section 2 (6) and (7) of the Act, as amended. 2. Seattle Professional Engineering Employees Association is a labor organiza- tion within the meaning of Section 2 (5) of the Act, as amended. 3. The Respondent, Boeing Airplane Company, Seattle Division, has not engaged in unfair labor practices as alleged in the complaint, within the meaning of Section 8 (a) (1), (3), and (5) of the Act, as amended. [Recommendations omitted from publication.]